A 

A 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  CODE 


OF 


FEDERAL    PROCEDURE. 

(Superseding  Desty's  Fedekal  Procedure.) 

EMBODYING  ENACTMENTS  OF  CONGRESS,  CONSTITUTIONAL  PROVISIONS 

ESTABLISHED    PRINCIPLES.    AND    COURT    RULES,    IN    FORCE 

DECEMBER    1,    1906,    AND    THE    BANKRUPTCY   ACT    OF 

1898,    WITH    AMENDMENTS    AND    ORDERS, 

TOGETHER  WITH   A  COLLECTION 

OF  FORMS  AND  PRECEDENTS. 


BY 

WALTER  MALINS  KOSE, 

Author  of  "Notes  on  United  States  Reports." 


IN  THREE   VOLUMES. 
VOL.  I. 


SAN  FRANCISCO. 

BANCROFT-WHITNEY  COMPANY, 
Law  Publishers  and  Law  Booksellers, 

1907. 


COPYRIGHT,  1907, 
BY 
IVALTEU  MALINR  ROSS. 


T 
\9o7 


TO  THE  MEMORY  OF 

Hobett  g.  I^apne 

LATE  OF  THE  SAN  FRANCISCO  BAR 

The  inspiration  of  whose  unremitting  and  splendid  toil 
as  author,  advocate  and  judge,  lives  after  him. 


PREFACE. 

This  Code  is  an  outgrowth  of  Desty's  Federal  Procedure,  so 
well  known  to  the  profession,  and  an  attempt  to  amplify  and  de- 
velop the  features  of  that  work  upon  which  its  long  continued 
popularity  has  rested.  Through  the  kindness  of  the  publishers 
all  the  matter  contained  in  the  last  edition  of  Desty  was  placed 
at  the  disposal  of  the  writer  for  use  in  this  undertaking. 

Since  Mr.  Desty's  book  first  appeared,  codification  of  the  law 
of  procedure  has  become  almost  universal  in  the  various  States, 
and  it  seemed  advisable  to  depart  from  the  classification  scheme 
of  the  Revised  Statutes,  followed  by  Mr.  Desty  and  his  subse- 
quent editors,  and  attempt  a  Federal  Code  along  more  modern 
and  satisfactory  lines. 

Certain  departures  from  the  usual  rules  of  codification  were 
rendered  necessary  by  the  fact  that  the  governing  rules  and  pre- 
cedents of  Federal  procedure  are  not  based  exclusively  upon 
statutory  provisions.  Many  of  them,  especially  in  equity  and 
admiralty  practice,  consist  of  rules  promulgated  by  the  Supreme 
Court,  but  having  all  the  force  of  law.  Others  of  them  are 
founded  upon  provisions  of  the  United  States  Constitution ;  and 
others  no  less  immutable  and  established,  grow  out  of,  and  neces- 
sarily result  from,  the  peculiar  scope,  nature  and  limits  of  the 
Federal  judicial  power. 

The  Code  sections  herein  are  therefore  derived  from  four 
sources,  viz  :  constitutional  provisions,  statutory  provisions,  court 
rules,  and  decided  cases  or  established  principles.  These  it 
seemed  advisable  to  arrange  and  intermingle  quite  without 
reference  to  their  derivation,  in  an  eflEort  to  obtain  a  logical  and 
symmetrical  classification. 

At  the  end  of  each  code  section  its  nature  is  indicated  by  a 
reference  to  the  particular  section  or  paragraph  or  clause  of  stat- 
ute, court  rule,  or  constitutional  provision  there  reproduced,  or 


VI  PREFACE. 

the  words  "author's  section''  are  appended  if  the  code  section  is 
an  attempt  to  complete  the  treatment  of  a  topic  bj  a  statement 
of  some  established  principle.  Authorities  pertinent  to  the  rule 
or  principle  stated  in  each  code  section  are  discussed  in  the  anno- 
tation appended  thereto. 

It  was  deemed  inadvisable  to  attempt  any  extended  treatment 
of  such  matters  as  bankruptcy,  which  of  itself  has  been  made  the 
subject  of  separate  treatises,  or  the  practice  and  jurisdiction  of 
the  Court  of  Claims,  or  other  topics  of  interest  exclusively  to 
practitioners  in  the  District  of  Columbia. 

The  writer  does  not  dare  to  hope  that  the  work  is  free  from 
error  and  omissions,  and  realizes  that  in  many  instances  the  topics 
considered  are  not  explored  with  the  thoroughness  which  a 
greater  abundance  of  time  might  have  rendered  possible. 

Acknowledgments  are  due  to  Mr.  Andrew  Henrj'  Rose  for 
valuable  assistance  rendered  during  the  past  year  in  the  annota- 
tion of  chapters  five  to  nineteen  of  Part  One,  and  chapters  thirty- 
five  to  sixty-nine  of  Part  Two. 

The  other  portions  of  the  Code  were  prepared  during  a  sojourn 
of  a  year  and  a  half  in  Arizona.  The  writer  is  under  many  obli- 
gations to  friends  in  Prescott  and  Tucson  for  the  use  of  excel- 
lent libraries  whose  facilities  were  freely  and  generously  extend- 
ed during  that  time.  To  Colonel  William  Herring  of  Tucson, 
and  to  Surah  II.  Sorin,  his  daughter,  a  most  excellent  lawyer,  to 
Messrs.  Hawkins,  Ross  and  Anderson,  and  to  Hon.  Robert  E. 
Morrison,  of  Prescott,  thanks  are  especially  due  and  gratefully 
expressed. 

Walter  Malins  Rose. 
Los  Angeles,  California. 
January,  1907. 


TABLE    OF    CONTENTS 

CODE   SECTIONS   INCLUDED,    ARE   SUMMARIZED 
AT   THE   HEAD   OF   EACH   CHAPTER. 


PART    I. 

FEDERAL  COURTS  AND  THEIR  JURISDICTION. 

Chapter     1.     Federal  Jurisdiction  in  General.     Sees.  1-29. 
Chapter     2.     Supreme  Court.     Sees.  32-62. 
Chapter     3.     Circuit  Court  of  Appeals.     Sees.     70-86. 
Chapter     4.     Circuit  Court — Organization  and  General  Powers, 

Sees.  100-120. 
Chapter     5.     Circuit  Court — Jurisdiction.     Sees.  124-159. 
Chapter     6.     District  Court — Organization  and  Powers.     Sees 

168-183. 
Chapter     7.     District  Court — Jurisdiction.     Sees.  193-215. 
Chapter     8.     Court  of  Claims.     Sees.  222-246. 
Chapter     9.     Judicial   Circuits    and   Judicial    Districts,      Sees. 

255-295. 
Chapter  10.     Terms  of  Federal  Courts.     Sees.  304-370. 
Chapter  11.     Court  Records  and  places  where  kept.     Sees.  373- 

395. 
Chapter  12.     Venue  in  civil  and  criminal  causes.     Sees.  402-431. 
Chapter  13.     Judicial  officers  and   their   accounts   in   general. 

Sees.  441-456. 
Chapter  14.     United  States  Judges.     Sees.  466-478. 
Chapter  15.     Attorneys  and  counselors.     Sees.  487-550. 
Chapter  16.     Clerks  of  United   States  Courts.     Sees.  558-605. 
Chapter  17.     United  States  Marshals.     Sees.  613-663. 
Chapter  18.     Commissioners  and  other  Judicial  Officers.     Sees. 

672-696. 
Chapter  19.     Fees.     Sees.  704-750. 

VII 


PART     11. 
FEDERAL    PROCEDURE. 

Chapter  21.     General  and  Miscellaneous  provisions.    Sees.  790- 

826. 
Chapter  22.     AVrits  and  process  in  Federal  Courts.  Sees.  835-860. 
Chapter  23.     Time  for  commencement  of  action  or  prosecution. 

Sees.  869-890. 
Chapter  24.     Procedure  in  common  law  causes.     Sees.  900-925. 
Chapter  25.     Equity  procedure  in  j^eneral — bills  in  equity.  Sees. 

935-963. 
Chapter  26.     — Subpoena,  appearance,  default,    demurrer    and 

plea.     Sees.  967-986. 
Chapter  27.     — Answer,  replication  and  issue.      Sees.  996-1009. 
Chapter  28.     —Parties.     Sees.  1019-1026. 
Chapter  29.     —Taking  of  testimony.     Sees.  1036-1057. 
Chapter  30.     — Hearing  and  reference  to  master.  Secs.1067-1080 
Chapter  31.     — Decrees  and  orders,  rehearing,  enforcement,  bill 

of  review.     Sees.  1090-1100. 
Chapter  32.     — Injunctions  and  receivers.     Sees.  1110-1126. 
Chapter  33.     Procedure  on  removal  of  causes.   Sees.  1135-1157. 
Chapter  34.     Patent,  trademark  and  copyright  procedure.    Sees 

1167-1185. 
Chapter  35.     Admiralty  procedure  in  general — libel  and  process. 

Sees.  1195-1213. 
Chapter  36.     — Stipulations,  security  and  property  or  money  in 

custody.     Sees.  1216-1231. 
Chapter  37.     — Form  and  election  of  remedies  in  rem  and  in 

personam.     Sees.  1239-1248. 
Chapter  38.     — Claim,  answer,  intervention,  dismissal  and  cross 

libel.     Sees.  1258-1273. 
Chapter  30.     — Trial  proof  and  references,  decree  and  enforce- 
ment.    Sees.  1281-1289. 
Chapter  40.     — Proceedings   for   limitation  of   liability.     Sees. 

1298-1305. 
Chapter  41.     — Procedure  in  prize  cases.     Sees.  1315-1334. 
Chapter  42.     Procedure  in  eases   under  commerce   laws.     Sees. 

1345-1367. 
Chapter  43.     Suits  on  behalf  of  United  States.    Sees.  13S0-1419. 

VIII 


TABLE  OF  CONTENTS.  IX 

Chapter  44.     Procedure  in  suits  against  United   States.      Sees. 

1440-1503. 
Chapter  45.  Searches  and  seizures.  Sees.  1508-1521, 
Chapter  46.  Provisions  respecting  foreign  seamen  and  offen- 
ses, ao-ainst  navigation  laws.  Sees.  1523-1531, 
Chapter  47.  Arrest  and  bail,  civil  and  criminal.  Sees.  1537-1562. 
Chapter  48.  Criminal  procedure  in  general.  Sees,  1571-1596 
Chapter  49.     — Punishment,  custody  and  discharge  of  prisoners. 

Sees.  1606-1632. 
Cliapter  50.     Extradition.     Sees,  1642-1660. 
Chapter  51.     Habeas  Corpus.     Sees.  1669-1689. 
Chapter  52,     Grand  and   petit  juries  in  civil  and  criminal  cases. 

Sees.  1700-1725. 
Chapter  53.     Witnesses.     Sees.  1735-1755. 
Chapter  54.     Evidence.     Sees.  1760-1812. 
Chapter  55.     Costs.     Sees.  1822-1855. 
Chapter  56.     Judgment  and  execution.     Sees.  1858-1874. 
Chapter  57.     Appeal    and   error   in    general — time    of    taking. 

Sees.  1886-1914. 
Chapter  58.     Mode  of  taking  appeal,  assignments  and  exceptions. 

Sees.  1923-1939. 
Chapter  59.     Perfecting  appeal — record  and  docketing.     Sees. 

1950-1998. 
Chapter  6o.     Bond  and  Supersedeas.     Sees,  2009-2026. 
Chapter  61.     Docket,   motions,   hearing   and   scope   of   review. 

Sees.  2035-2095. 
Chapter  62,     Decision,  disposal  of  cause  and  mandate.      Sees. 

2105-2133. 
Chapter  63.     Bankruptcy  jurisdiction  and  procedure  in  general. 

Sees.  2200-2225. 
Chapter  64.     — Referees  and  trustees.     Sees.  2235-2258. 
Chapter  65.     — Petition  and  adjudication.     Sees.  2270-2294. 
Chapter  QC).     — Creditors  claims — administration  and  dischai'ge. 

Sees.  2304-2328. 
Chapter  67.     — Proceedings  before  referees  and  evidence.  Sees. 

2335-2350. 
Chapter  68.     — Jurisdiction    and   procedure  on    appeal.     Sees. 

2360-2368. 
Chapter  69.     Procedure  under  exclusion  and  naturalization  laws. 

Sees.  2380-2408. 


TABLE  OF  CONTENTS. 


APPENDIX  I. 


A.  Supreme  Court  Eules. 

J3.  Equity  Ilules. 

C.  Admiralty  Rules. 

D.  Court  of  Claims  Rules. 

E.  Circuit  Court  of  Appeals  Ilules. 

F.  Circuit  Court  Ilules  in  A^arious  Districts. 

APPENDIX    II. 

Bankruptcy  Act  and  Orders  in  Bankruptcy. 

(The  bankruptcy  forms  are  in  appendix  III.  F.  328-F.  402) 

APPENDIX    III. 

FORMS. 

(A  synopsis  of  the  forms  appears  at  the  beginning  of  Ap- 
pendix III.) 

INDEX. 


TABLE 


OF 


PARALLEL     EEFERENCES 


Showing   Constitutional    Provisions,    Revised    Statutes,    Statutes   at  Large 
and  Court  Rules  and 

THEIR  PLACE  IX  THIS  CODE. 


TABLE  OF  PARALLEL  REFERENCES 
FOR  THIS  CODE 


UNITED  STATES  CONSTITUTION, 


Code  Section 

20 

1669 


Art.  I,  Sec.  8,  CI.   17,     . 

Art.  I,  Sec.  9,  CI.  2.     .. 

Art.  Ill,  Sec.  1     (pt)     ... 

Art.  Ill,  Sec.  I,  CI.  2,     .  . 

Art.  III.  Sec.  2,     

Art.  Ill,  Sec.  2,  CI.  I,   426 

Art.  Ill,  Sec.  2,  CI.  2,     3.5 


467 
•2 


Code 


Section 

Art.  Ill,  Sec.  2.  CI.  3,     1099 

Art.    VI,  Sec.  2.  CI.  2,     1053 

Amend.  Art.  IV,    1508 

Amend.  Art.  V,     1571,  1738 

Amend.  Art.  VI,    ..1570.   1700,  1739 

Amend.  Art.  VII 910.  2081 

Amend.  Art.  VIII,     1543,  1008 


PARALLEL    REFERENCES 

FOE  SECTION'S  OF 

REALISED    STATUTES. 

FOUXD  IN  THIS  CODE. 

TABLE  OF  REVISED  STATUTES 


Rev.  Stat.  Sec. 

1  

189  

355  

362  

363  

364  

365  

366  

367  

368  

373  

377  

380  

381  

536  

542  

546  

548  

552  

555  

558  

561  

562  

563 
503 
563 
563 
563 
563 
563 
563 
563 
563 
563 
563 
563 
563 
563 
563 
563 
.563 
564 


(par.  1) 

( par.  2 ) 

(par.  3) 

( par.  4 ) 

(par.  5) 


{par 

{ par.  7 ) 
(par.  8) 
( par.  9 ) 
(par.  10) 
(par.  11) 
(par.  12) 
(par.  13) 
(par.  14) 
(par.  15) 
(par.  16) 
(par.  17) 
(par.  18) 


.452, 
.550, 


ection 
442 

Rev.  Stat.  Sec, 
!  565  

Code  Section 
1334 

500 

566  

911  1283 

5-?  6 

567  

383 

551 

568  

384 

55-' 

569  

213 

553 

570  

679 

554 

573  

369 

555 

574  

368 

556 

578  

360 

557 
549 

581  

582  

167,  359 

170 

058 

583  

364 

528 

586  

3S1 

529 

590  

183 

415 

591  

172 

413 

592  

173 

285 

593  

174 

1573 

594  

175 

168 

595  

176 

567 

596  

177 

568 

597  

473 

586 

598  

178 

382 

599  

179 

193 

600  

180 

194 

602  

isi 

195 

603  

182 

196 

013    .... 

472 

197 

624  

566 

198 

626  

585 

199 

638  

365 

200 
201 

641  

642  

.137,  1149,  1150.  1151 
1152 

202 

203  1 

643  138, 

644  

1145.  1146,  1147,  1143 
160 

204 
905  1 

645  

648  

396,  1805 

912 

206  ! 

649 

914 

207  ' 

661  

357 

208  , 

662  

358 

209  ■ 

669  

355 

210  j 

670  

356 

423  ' 

671  

362 

XIV 


TABLE  or  PARALLEL  REFERENCES. 


[CkKle  Fed. 


Rev.  Stat.  Sec.  Code  S 

672  

673  

674  

675  

677  559,  614, 

678  

679  

680  615. 

681  

684  

685  

687  

688  

689  

690  

698  1959, 

700  

701  

707  

708  

709  2120, 

710  

711  

712  

713  

714  

715  

716  

717  

718  

719  

720  

721  

722  

723  

724  

725  

726  

727  

728  158,  646, 

729  

730  

731  

732  

733  

734  

737  

738  

740  402, 

741  

742  

746  

747  

748  

749  

750  1100,  1289, 

751  

752  

753  

754  


"CtiOD 

363 

32 

33 

34 

680 

560 

380 

683  I 

681  I 

304 

305  I 

36 

844 

913 

37 

2087 

2082 

2119 

38 

1907 

2018 

2041 

15 

466 

476 

471 

687 

841 

843 

1114 

1111 

20 

12 

29 

935 

176.S 

807 

923 

1593 

1286 

427 

428 

430 

421 

420 

422 

817 

424 

854 

855 

403 

370 

493 

496 

497 

1958 

1670 

1673 

1674 

1675 


Rev.  Stat.  Sec.  Code  Section 

755  167G 

756  1677 

757  1678 

758  1679 

759  1680 

760  1681 

761  1682 

762  1683 

763  1684 

764  1684 

765 1684 

766 1685 

771  524 

772  546 

773  545 

774  547 

775  548,  649 

766  618 

779  617 

782  625 

783  627 

784  629 

785  630 

786  631 

787  644 

788  660 

789  622 

790  042,  643 

791  647 

792  648 

794  570 

797  596,  605 

798  595 

799  602 

800  1701 

802  1723 

803  1706 

804  1707 

805  170S 

808  1700 

809  1710 

810  1711 

811  1712 

812  1713 

813  1720 

819  171.5 

822  1719 

823  705 

824  716 

825  717 

826  718 

827  719 

828  706 

829  712 

830  6:59 

831  584,  721 

832  713 

833  520 

834  521 

837  720 


Procedure] 


TABLE  OF  PARALLEL  REFERENCES. 


ftev.  Stat.  Sec.  Code  Section 

838  544 

839  579 

840  580 

842  581 

843  582 

844  591 

845  592 

846  448,  455 

848  725 

849  729 

850  730 

851  731 

852  732 

853  735 

854  736 

855  738 

856  744 

857  750 

858  1735 

859  1740 

860  1741 

861  917 

862  1036.  1281 

863  1761 

864  1762 

865  1764 

866  1765 

867  1766 

868  1767 

869  1768 

870  1769 

871  1770 

872  1771 

873  1772 

874  727.  1773 

875  1774 

876  1742 

877  1743 

878  741,  1744 

879  1745 

880  1746 

881  1747 

SS2  1777 

883  1778 

884  1780 

885  1781 

886  1782 

887  1784 

888  1785 

889  1786 

890  1787 

891  1788 

892  1794 

893  1795 

894  1796 

895  1798 

896  1799 

897  1800 

898  1801 

899  387 


Rev.  Stat.  Sec.  Code  Section 

900  388 

901  389 

902  390 

903  391 

904  392,  531,  597 

905  1803 

906  1804 

907  1800 

908  1808 

909  1513 

910  824 

911  835.  836 

912  837 

913   936.  1195 

914  900 

915  905 

916  9-25 

917  802.  1196 

918  805 

919  1383 

920  1384,  1514 

ft21  823,  1833 

922  857 

923  1385,  1515 

024  1399 

925  1400 

926  1401 

927  1402 

028  1403 

929  1404 

930  1405 

931  1406 

932  1407 

933  906 

934  1386.  1516 

935  1412 

936  1413 

937  Sll,  1414 

938  1393,  1517 

939  1387,  1518 

940     1218,  1519 

041  1220,  1221 

942  1552 

943  1553 

044  1554 

945  1555 

946  1556 

047  1557 

948  840 

049  820 

950  819 

951  1411 

952  1408 

053  1932 

954  813 

955  814 

956  815 

957  1388 

958  1409 

959  1394 


TABLE  OF  PAKALLEL  REFERENCES. 


[Code  Fed. 


fley.  Stat.  Sec. 

960  

961  

962  

963  

964  

965  

966  

967  

968  

969  

970  

971  

972  

97.3  

974  

975  

976  

977  

978  

979  

980  

981  

982  

983  

984  

985  

986  

987  

988  

989  

990  

991  

992  

993  

994  

995  

996  

997  

998  

999  

1000  

1001  

1002  

1003  

1004  

1005  

1006  

1007  

1008  

1009  

1010  

1011  

1012  

1013  

1014  

1015  

1016  

1017  

1018  

1019  


Code 


747 


.924, 


.737, 


Section 
.  1395 
1858 
.  1306 
1397 
1410 
1398 
1859 
.1862 
1827 
1415 
1520 
1521 
1828 
1829 
1416 
1830 
1831 
1832 
1834 
1835 
1836 
1837 
1838 
1839 
1840 
1865 
1417  I 
1866 
1867 
1868 
1558 
1559 
1560 
1873 
1872 
821 
822 
1953 
1926 
1927 
2009 
2010 
1891 
1888 
1925 
1928 
1935 
2012 
1902 
1903 
1842 
2083 
1929 
1998 
1537 
1544 
1545 
1546 
1549 
1550 


Rev.  Stat.  Sec. 
1020  


Code 


.494 


.222, 


1021  

1022  

1023  

1024  

1025  

1026  

1027  

1028  

1029  

1030  

1031  

1032  

1033  

1034  

1035  

1036  

1037  

1038  

1039  

1040  

1041 

1042  

1043  

1044  

1045  

1046  

1047  

1048  

1049  

1050  

1051  

1052  

1053  228,  562, 

1054  578, 

1055  

1056  

1057  

1058  

1059  (Par.  1&2)   

1059  (Par.  3)  

1059  (Par.  4)  

1060  

1061  

1062  

1063  

1064  

1065  

1066  

1067  

1068  

1069  

1070  

1071  

1072  

1073  

1074  

1075  

1076  

1077  


224 


Section 
.  1551 
.  1572 
.  1574 
,  1577 
.  1578 
.  1579 
.  1580 
,  1581 
,  1582 
,  1583 
,  1584 
1716 
1585 
1586 
,  1587 
1588 
1589 
1590 
1591 
1592 
2017 
1606 
1607 
884 
885 
886 
888 
881 
887 
468 
225 
226 
308 
684 
685 
573 
594 
593 
498 
231 
232 
233 
234 
1449 
1451 
230 
1452 
1453 
247 
246 
1454 
874 
,  808 
223 
1455 
1456 
1457 
1458 
1459 
1460 


Procedure] 


TABLE  OF  PARALLEL  REFERENCES. 


xvii 


Rev  Stat.  Sec. 
1078 

1080  

1081  

1082  

1083  

1084  

108.5  

1086  

1087  

1088  

1089  

1091  

1092  

1093  

1660  

1671  

1763  

1764  

1765  

1766  

1909  

1981  

1983  

1986  

2469  

2470  

3066  

3170  

3224  

3227  

3228  

3229  

3230  

3231  

3458  

3462  

3492  

3494  

3636  

3637  

3990  

3991  

4063  

4064  

4065  

4069  

4070  

4071  

4072  

4073  

4074  

4078  

4079  

4080  

4081  

4299  

4300  

4301  

4302  

4303  


.739 


Code  Section 

1461 

1462 

1463 

, . . .   1464 

1465 

1466 

1467 
.  1468 
1469 
1470 
.  1471 
.  1473 
.  1474 
.  1475 
.   540 
.  1702 
.   444 
.   446 
.   447 
453 
48(a) 
872 
675 
722 
1789 
1790 
1510 
662 
1120 
876 
877 
1390 
1390 
1596 
659 
1509 
543 
883 
1121 
1122 
661 
661 
861 
862 
863 
156 
655 
1750 
1751 
1752 
1753 
435 
1524 
1525 
1526 
656 
1527 
1528 
1529 
1717 


1419, 


.728, 


1530, 


Rev.  Stat.  Sec. 

4303  

4305  

4389  

4618  

4619  

4621  

4622  

4623  

4624  

4625  

4626  

4627  

4G28  

4629  

4636  

4638  

4639  

4640  

4644  

4645  

4646  

4647  

4650  

4651  

4799  

4800  

4906  

4908  

4918  

4919  

4920  

4921  

4922  

4963  

4966  

4968  

4969  

4970  

5237  

5242  

5261  

5262  

5270  

5271  

5272  

5273  

5274  

5275  

5276  

5277  

5278  

5279  

5280  

5293  

5340  

5351  

5391  

5392  

5393  

5397  


Code 


.640, 


Section 
1531 
1392 
652 
1315 
530 
1316 
1317 
1318 
1319 
1320 
1321 
1322 
1323 
1324 
1333 
1325 
1326 
1327 
1328 
1329 
1330 
1331 
13.32 
743 
306 
1627 
1748 
1749 
1169 
1171 
1172 
1170 
1174 
1183 
1184 

871 

1185 

1182 

1119 

.907,  1118,  1874 

244 

1.59 

1642 

1645 

1647 

1648 

1649 

16.50 

1651 

1652 

1654 

1655 

1.523 

1418 

654 

890 

1594 

1736 

1575 

1576 


143, 


TABLE  OF  PARALLEL  REFERENCES. 


[Code  Fed. 


Rev.  Stat.  Sec.  Code  Section 

5409  1561 

5410  1562 

5498  499 

5504  600 

5536  1609 

5537  650,  1611 

5538   651,  1612 

5539  1613 

5540  1614 


Rev.  Stat.  Sec.  Code  Section 

5541  1615 

5542  1616 

5545  1619 

5546  1620 

5547  1621 

5548  1622 

5549  1623 

5550  1624 


Procedure]  TABLE  OF  PARALLEL  REFERENCES. 


PARALLEL  REFERENCES 

FOR  SECTIONS  OF 

STATUTES    A.T    L^A^RGE. 

FOUND  IN  THIS  CODE. 


stats,  at  Large 

Date  of  Act Code  Section 

Chap.  Sec.  Vol.        Page 

1S70 

June  22  150  17  10             164 555 

1874 

April  7         SO  2  18               27 1894,1961 

June  1  200  18      50 28 

June  20  328  2  18      109 506,571,  623 

June  20  328  3  18      109 445 

June  20  333  8  18      113 1811 

June  22  391  21  18      186 875 

June  22  391  22  18      190 882 

June  23  468  18     252 227 

1875 

Feb.  10    77  2  18      316 1173 

Feb.  IS  18      320 6OO 

Feb.  22    95  2  18     333 575,  628 

Feb.  22    95  1  18      333 449 

Feb.  22    95  3  18     333 572 

Feb.  22    95  4  18      333 146,  845 

Feb.  22    95  5  18      334 508 

Feb.  22    95  6  18      334 598 

Feb.  22    95  7  18  333,334 450,  457 

Mar.  1  114  3  18      336 163 

Mar.  1  114  4  18      336 1705 

Mar.  3  130  8  18      401 525 

Mar.  3  133  1  18     452 450 

Mar.  3  1S7  1  18     470 23,129,130,131,  401 

Mar.  3  137  6  18      472 1157 

Mar.  3  137  3  18      470 1136,1137,1138,1144 

Mar.  3  137  4  18     471 1 153 

Mar.  3  137  5  18     472 818 

Mar.  3  137  7  18     472 1139,1140,1141,1142,1154 

Mar.  3  137  8  18  472,473 404,  856 

Mar.  3  137  9  18     472 1895 

Mar.  3  145  2  18     480 1625 

Mar.  3  149  18     481 1450 

1876 

June  30  156  2  19      63 964 

Aug.  15  304  19     206 1775 

1877 

Feb.  27    69  19      241 544 

Mar.  3  105  19      344 1849 

Dec.  14  20       7 523 

1878 

Mar.  16    37  20      30 1737 


TABLE  OF  PARALLEL  REFERENCES. 


[Code  Fed. 


Stats,  at  Large 


Date  of  Act 


Code  Section 


Chap.     Sec.  Vol. 


Page 


i.sro 

June 

Feb. 

Mar. 

Mar. 

Rlar. 

isso 

June 

issi 

Mar. 

Mar. 

Mar. 

Mar. 

Mar. 

Mar. 

Mar. 

Apr. 

Aug. 

Aug. 

Aug. 

Aug. 

Aug. 

Aug. 

1883 

Mar. 

Mar. 

Mar. 

Mar. 

Mar. 

Mar. 

Mar. 

Mar. 

1884 

Mav 
JulV 

1S.S.5 

Feb. 
Feb. 
Feb. 

18SO 

Aug. 

1887 

Feb. 

Feb. 

Feb. 

Feb. 

Feb. 
Feb. 
Feb. 
Mar. 
Mar. 
Mar. 
Mar. 
Alar. 
Mar. 

hlAT. 


30 

15 

1 

1 

3 


3 
3 
3 
3 
3 
3 

22 
25 
3 
3 
3 
3 
5 


3 
3 
3 
3 
3 
3 
3 
3 

29 
5 


2G 


52 

81 

125 

125 

183 


1.30 
138 
138 
138 
138 
138 

47 
89 
378 
378 
378 
378 
S89 
433 

116 
116 
116 
116 
116 
116 
116 
143 

60 
225 

149 
149 
164 

928 

104 
104 
104 
104 

104 
104 
105 
3.59 
359 
3.59 
359 
3.59 
3.59 
359 


2  21 

20 

2  20 

9  20 

20 

21 

1  21 

7  21 

8  21 

9  21 

10  21 

11  21 

5  22 


22 
22 
22 
22 
22 
22 

22 
22 
22 
22 
22 


6  22 

7  22 
1  22 

9  23 

1  23 


23 
23 
23 


6  24 

6  24 

9  24 

12  24 

16  24 

18  24 
20  24 

2  24 

1 

2 

3 

4 

5 

6 

7 


24 
24 
24 
24 
24 
24 
24 


43 1703,  1704,  1714,  1721 

292 490 

327 605 

341 1541 

415 603 

308 1809 

412 470 

503 1178 

504 1179 

504 1180 

504 1181 

504 1177 

31 1718 

1510 

215 1643 

215 1646 

216 742.  1659 

216 1644 

254 682 

336 454 

485 235 

485 238 

485 245 

486 1476 

486 1477 

486 1478 

486 1479 

631 576,  707 

33 538 

122 889 

321 154,  534 

322 1382 

333 147 

309 1864 

380 848,  849 

382 151,  1348 

383 812,  1367,  1370 

384 366,  537,  1349,  1350,  1351,  1352 

1353,  1354,  1355,  1356,  1357,  1371 

386 726 

386 1358 

387 1176 

505 229,  230,  873 

505 212,  1482 

505 139,  242,  1481 

505 1480 

505 1483 

506 1484 

506 1485 


Procedure]  TABLE  OF  PARALLEL  REFERENCES.  xxi 

Stats,  at  Large 

Date  of  Act  ' ' >  Code  Section 

Chap.  Sec.  VoL  Page 

Mar.  3  359  8  24     506 1486 

Mar.  3  359  9  24     507 1487,1892 

Mar.  3  o59  10  24     507 1488,  1860,  1909 

Mar.  3  359  11  24     507 1489 

Mar.  3  359  12  24     507 237 

Mar.  3  359  13  24     507 239 

Mar.  3  359  14  24     507 240 

Mar.  3  359  15  24     508 1490 

Mar.  3  359  16  24     508 1491 

Mar.  3  362  24     541 584%,  715 

Mar.  3  373  1  24     552 401,1136,1155,1156 

Mar.  3  373  2  24     554 1125 

Mar.  3  373  3  24     554 1124,1138 

Mar.  3  373  6  24      555 1154 

Alar.  3  373  7  24     555 443 

1888 

Feb.  29  17  13  25   42,  43 216,  425 

Aug.  1  728  1  25      357 150,533,1861 

Aug.  1  729  2  25      357 385,1380 

Aug.  1  729  3  25     358 1863 

Aug.  8  785  25      386 1721 

Aug.  8  792  4  25      390 G32 

Aug.  13  866  1  25  433,434 23,  129,  130,  131,  401.  1136,  1137 

1155,  1156 

Aug.  13  S66  2  25      433 132,  133,  134,  1124,  1135,  1138 

Aug.  13  866  4  25      433 24 

Aug.  13  866  6  25      436 1154 

Aug.  13  S66  7  25      437 443 

Sept.  13  1015  13  25      479 2405 

1S8» 

Feb.  6  113  3  25      655 564 

Feb.  6  113  6  25      656 1914,  1936,  1957,  2016,  2040,  2122 

Mar.  2  382  1  25      855 848,  849 

Mar.  2  25      859 1371 

Mar.  2  382  10  25      862 152,  847 

ATar.  2  382  23  25      862 846. 

Mar.  2  411  1  25      941 527 

ISOO 

Apr.  9  73  3  26      50 1810 

June  10  407  15  26      138 140,  367,  1443,  1444,  1445,  1446 

1447,  1913,  2011,  2042 

July  2  647  4  26      209 142,  536,  1345 

July  2  647  5  26      210 1346 

Sept.  4  874  1  26      424 27 

Sept.  4  874  2  26      424 157 

Sept.  30  1126  1  26      537 1472 

1891 

Feb.  10  127  5  26      743 loll 

Mar.  3  517  2  26  826,827 563,709,  804 

Mar.  3  517  3  26     827 309 

Mar.  3  517  6  26      826 1904 

Mar.  3  517  7  26      828 1906,  2020,  2056 

Mar.  3  517  8  26      828 474 

Mar.  3  517  9  26      829 '31V   g86 

Mar.  3  517  10  26     829 212l'  21"3 

Mar.  3  517  11  26     829 1890,'  1905 

Mar.  3  517  12  26      829 842 

Mar.  3  529  4  26     839 16'9 


Date  of  Act 

SUts. 

at  Large 

Chap. 

Sec. 

Vol. 

Afar. 

3 

529 

5 

26 

Mar. 

3 

529 

0 

26 

jrar. 

3 

52./ 

9 

26 

]Mar. 

3 

538 

1 

26 

Mar. 

3 

538 

3 

26 

Mur. 

S 

538 

4 

26 

Mar. 

3 

538 

5 

26 

iMar. 

3 

538 

0 

26 

Mar. 

3 

538 

7 

26 

Mar. 

3 

538 

8 

26 

IVIar. 

3 

538 

10 

26 

Mar. 

3 

538 

11 

26 

Mar. 

3 

538 

12 

26 

IMar. 

3 

551 

2 

26 

]\Iar. 

3 

5G1 

8 

26 

1893 

l^rar. 

9 

14 

27 

IMav 

5 

GO 

2 

27 

Julv 

16 

190 

1 

27 

Julv 

2C 

200 

2 

27 

July 

20 

209 

1 

27 

July 

20 

209 

3 

27 

Julv 

20 

209 

4 

27 

Julv 

20 

209 

5 

27 

Julv 

26 

256 

3 

27 

AufT. 

3 

301 

27 

1  HUli 

Feb. 

11 

83 

27 

Mar. 

2 

209 

27 

Mar. 

3 

208 

27 

Mar. 

3 

211 

1 

27 

Mar. 

3 

225 

1 

27 

Mar. 

3 

225 

2 

27 

Mar. 

,} 

225 

3 

27 

Mar. 

3 

226 

27 

Mar. 

3 

538 

9 

26 

Nov. 

3 

14 

2 

28 

18J»4 

Apr. 

0 

57 

9 

28 

Julv 

31 

174 

13 

28 

July 

31 

174 

17 

28 

Aug. 

13 

Aug. 

13 

282 

5 

28 

Aug. 

18 

301 

1 

28 

Aug. 

27 

349 

74 

28 

Aus. 

27 

349 

1  t 

28 

1895 

Jan. 

12 

23 

10 

28 

Jan. 

12 

23 

73 

28 

Mar. 

2 

174 

1 

28 

T^lar. 

2 

174 

2 

28 

IMar. 

2 

174 

3 

28 

Mar. 

2 

177 

28 

IMar. 

2 

180 

28 

IMar. 

2 

189 

28 

1S9G 

Feb. 

26 

33 

Mar. 

2 

39 

1 

29 

TABLE  OF  PAR.\LLEL  REFERENCES.  [Code  Fed. 


.  Code  Section 

Page 

839 1010 

840 1626 

840 1030 

851 241 

852 1492 

852 501,  1493.  1494 

853 1495 

853 1496 

853 1497 

853 1498 

854 1500 

854 1501 

854 1502 

1084 1391 

1099 878 

7 1776 

25 2404 

222 616 

252 1824 

252 1823 

252 478,  1825 

252 495.  1826 

252 1826 

272 1779 

347 734 

443 1364 

031 532 

609 746 

714 5G5 

751 1809 

751 1870 

751 1871 

751 1685 

854 1499 

IS 653 

54 211 

210 451.  477 

210 1783 

1420.  1421,  1422.  1423 

280 417 

416 1538 

570 144.  535 

570 418 

602 148 

601 1812 

744 677 

744 678 

744 677 

809 1783 

814 1863 

010 583 

740 

42 879 


Procedure] 

TA 

Stats. 

Chap. 

Sec.  ^ 

May 

28 

252 

6 

May 

28 

252 

8 

May 

28 

252 

9 

May 

28 

252 

10 

May 

28 

252 

11 

May 

28 

252 

12 

May 

28 

252 

13 

May 

28 

252 

14 

May 

28 

252 

15 

May 

28 

252 

16 

May 

28 

252 

18 

May 

28 

252 

19 

May 

28 

252 

20 

]\Iay 

28 

252 

21 

Dec. 

22 

3 

1807 

Jan. 

6 

4 

Feb. 

19 

263 

Feb. 

19 

265 

Feb. 

25 

316 

1 

Mar. 

3 

395 

July 

24 

11 

18 

1808 

INIar. 

15 

68 

8 

May 

17 

339 

1 

May 

17 

S39 

2 

June 

370 

3 

June 

370 

4 

June 

370 

9 

June 

24 

495 

2 

June 

27 

503 

1 

June 

27 

503 

2 

June 

27 

503 

July 

541 

2 

July 

541 

4 

July 

541 

5 

July 

541 

7 

July 

541 

8 

July 

541 

10 

July 

541 

11 

July 

541 

14 

July 

541 

15 

July 

541 

18 

July 

541 

19 

July 

541 

20 

July 

541 

21 

July 

541 

22 

July 

541 

23 

July 

541 

24 

July 

541 

25 

July 

541 

26 

July 

541 

27 

July 

541 

28 

July 

541 

30 

TABLE  OF  PARALLEL  REFERENCES. 


xxiil 


The  Bankruptcy 


at  Large 

-■ Code  Section 

Vol.    Page 

29  179 509,  633,  745 

29  181 503,507,515,  518 

29  181 510,  634 

29  182 620 

29  182 621 

29  183 624,  638 

29  183 519,  522,  636,  641 

29  183 517,  637 

29  183 504 

29  183 511,  635 

29  183 748 

29  184 601,  671,  674,  676,  1542 

29  184 673,  1123 

29  185 395,  723 

29  481 626 

29  481 143 

29  536 709,  710 

29  577 514 

29  595 749 

29  695 416 

30  209 1512 

30  317 587 

30  416 141,  419 

30  416 859,  1440,  1441,  1442 

30  425 825 

30  426 825,  826 

30  427 1126 

30  487 505,  619 

30  494 230 

30  491 139 

30  495 212 

30  545 809,  850,  2200 

30  547 2226,  2227 

30  547 2228,  2251,  2329,  2330,  2331,  2332 

2333 

30  548 2230,  2271.  2295.  2296 

30  549 2229 

30  549 1539 

30  549 2201 

30  550 2324,  2327 

30  550 2328 

30  551 2278,  2279,  2281.  2285,  2286 

2287.  2288,  2293 

30  551 2288.  2289.  2290 

30  551 2211 

30  552 1813,  2315,  2345,  2346,  2347 

2348,  2349 

30  552 2344 

30  553 2202,  2204,  2205 

30  553 2360,  2361 

30  553 2362,  2363,  2367,  2368 

30  553 2322 

30  554 2321 

30  554 2209 

30  554 803,  2206 

Act  is  also  printed  in  full  in  appendix  II. 


TABLE  OF  PARALLEL  REFERENCES. 


[Cede  Fed. 


Stats,  at  Large 


Date  of  Act 

July 
-July 
July 
July 
July 
July 
July 
July 
July 
July 
July 
July 
July 
July 
July 
July 
Julv 
July 
July 
July 
July 
Julv 
Jufy 
July 
July 
July 
July 
July 
July 

July 

July 

July 

July 

July 

Julv 

July 

July 

1S9J> 

Feb.        8 

Jlar.       3 

ilar.       3 

]\[ar.       3 

]\lar.       3 

Feb.  20 

Apr.  12 

May  23 

June  G 

June  6 

June  6 

June  6 

IIKH 

Feb.  6 

Mar  S 

Mar.  3 

Mar.  3 

Mar.  3 


Chap. 

541 

541 

541 

541 

541 

541 

541 

541 

:ai 

541 
541 
541 
541 
541 
541 
541 
541 
541 
541 
.541 
.541 
541 
.541 
541 
541 
541 
541 
541 
541 

541 
541 
541 
541 
.541 
545 
546 
."-76 

121 
425 
425 
427 
441 


791 
803 

217 

845 
845 
8.53 
8GG 


Sec.  Vol. 

31  30 

32  30 

33  30 

34  30 

35  .30 

36  30 

37  30 

38  30 

39  30 

40  30 

41  30 

42  30 

43  30 

44  30 

45  30 

46  30 

47  30 

48  30 

49  30 

50  30 

51  .30 

52  30 

53  30 

54  30 

55  30 

56  30 

57  30 

58  30 

59  30 

67  30 

69  30 

70  30 
71*  32 
72*  32 

30 

3  30 

2  30 

30 

12  30 

18  30 

30 

30 

2  31 


35  31 
31 


23 
191 
541 

786  506  31 
786  508  31 
1 


31 
31 

31 
31 
31 
31 
31 


,  Code  Section 

Page 

554 2210 

554 2284 

555 691,  2234 

55.") 22.S5 

555 223G 

555 2237 

555 2238 

555 2239 

555 2240 

555 2241 

55G 810,  1754,  2335 

557 233G 

557 2244,  2337 

557 2245 

557 2247 

557 2248 

557 2249 

847 2252 

558 2257 

558 2258 

558  2212 

559 2214,  2222 

559 2224 

559 2225 

559,  560 2311 

560 2;313 

560 2303 

5G1 2314 

561 2269,  2273,  2274,  2275,  2276 

2277,  2280 

563 2203 

565 2316 

567 2203 

800,  386 2213 

800 2259 

571 2019 

597 230,  873 

717 1595 

822 816 

1151 145,  1381 

1153 542 

1237 6G3 

1354 1221 

32 1381 

85 1672,  2095 

182 1762 

415 1911 

415 1893 

639 588 

660 2020,  2056 

760... 149 

1093 2407 

1093 724,  2408 

1115 1G31 

1446 1363 


Procedure]  TABLE  OF  PARALLEL  REFERENCES.  xir 

Stats,  at  Large 

Date  of  Act     . .  Code  Secti  n 

Chap.  Sec.  Vol.  Page 
1902 

Feb.  14    18  3  32  33 429 

Mar.  2   514  1  31  956 601 

May  31   946  1  32  284 880 

June  9  1071  1-3  32  329 310 

June  21  1138  32  396 733 

June  21  1140  1  32  39 1617 

June  21  1140  2  32  39 1618 

June  21  1140  3  32  397 1017 

June  28  1301  1  32  475,  476 589,  711,  1000 

1003 

Feb.  2   351  1  32  793 155 

Feb.  5   487  3  32  797 2227 

Feb.  5   487  4  32  797 2327 

Feb.  5   487  32  798 2315 

Feb.  5   487  6  32  798 2278,2280 

Feb.  5   487  8  32  798 2202 

Feb.  5   487  9  32  799 2241 

Feb.  5       487  10  32  799 2249 

Feb.  5   487  11  32  799 2252 

Feb.  5   487  12  32  799 2303 

Feb.  5   487  16  32  800 2203 

Feb.  5   487  17  32  800 386,  2213 

Feb.  5   487  18  32  800 2259 

Feb.  9   529  32  806 1540 

Feb.  9   529  2  32  806 IfioS 

Feb.  11   544  1  32  823 1347 

Feb.  11   544  2  32  823 1910 

Feb.  12   547  32  825 469 

Feb.  14       552  1     32  825 1807 

Feb.  19       708  1     32  847 431,1369,1814 

Feb.  19       708  2     32  848 1362 

Feb.  19       708  3     32             848 539,1359,1360,1361,1365 

Feb  25       755  1     32  904 1366 

Mar.  3  1012  5     32  1214 541 

Mar.  3  1012  29     32  1220 153 

1904 

Feb.  18       160  1     33  41 1504 

Mar.  22       748  33  144 1791 

April  1  1396  33  185 1793 

April  19  13!  3  33  186 1792 

April  28  1775  33  527 171 

Aug.  18       301  28  416 746 

1!>05 

Feb.  20       523  11     33  727 1797 

Fpb.  20       592  17     33  728 162 

Feb.  24       778  33  811 1420,1421.1422,1423 

Mar.  3  1483  1     33  1207 512 

1906 

April  14  1625  2     .34  114 184 

April  14  1627  34  116 1906 

June  11  3073  4     34  232 892 

June  28  3573  34             546 672 

June  29  3591  34  588    431 

June  29  3591  34     588. 589 1369 

June  29  :5591  34  590 1349,  1.350,  1351 

June  29  3591  34              591 1352.1.353,1354,1370.1371 

June  29  3591  34  592 366 


^xvi  TABLE  OF  PARALLEL  REFERENCES.  [Code  Fed. 

Stats,  at  Large 

Date  of  Act  . ' ^  Code  Section 

Chap.  Sec.  Vol.  Page 

June  29  3591  5  34             592 432,433,434,1355,1356,2027 

June  29  3591  34             594 1358 

June  29  3591  9  34             595 1368 

June  29  3.i92  34             596 164 

June  29  3592  4  34             596 2380,2381,2382,2383,2384,2385 

2386,  2387 

June  2.')  3592  5  34             597 2388 

June  29  3592  6  34             598 2389 

June  29  3592  7  34             598 2390 

June  29  3592  8  34             699 2391 

June  29  3592  9  34             599 2392 

June  29  3592  10  34             599 2393 

June  29  3592  11  34             599 2394 

June  29  3592  12  34     599,600 2395,2396 

June  29  2592  13  34     600, 601 752,  753,     754 

June  29  3592  14  34             601 2397 

June  29  3592  15  34             601 2398,  2399,  2400,  2401 

June  29  3592  24  34             606 891 

June  29  3592  28  34             606 2402 

June  29  3592  30  34             606 2403 

June  29  3608  34             618 1735 

June  30  3914  34             754 513,     606 

June  3C  3914  34             755 688 

June  30  3934  3  34             815 1889 

June  30  3935               35             816 5571/2 


DISTRICT  OF  COLUMBIA  CODE. 

Code  Section 

Sec.  930,  31  Stat 1656    1657 

Sec.  931,  31  Stat 1657        1656 


Sl^rocedure] 


TABLE  OF  PAUALLEL  REFERENCES. 


PAEALLEL    KEFERENCES 

SHOWING 

SUPREME    COURT    RULES 

AND   THEIR   PLACE    IN   THIS  CODE. 

Note: — These  rules  are  also  printed  in  full  in  appendix  I.  A. 


Code  Section  ' 

Kule     1     1060  I 

Rule     2,   CI.   1 488 

Rule     2,   CI.   2 489  I 

Rule     3     1880,  1937 

Rule     4     1933,  1938  J 

Rule     5    1939; 

Rule     5,  par.   1 838 

Rule     5,    pt.    2 858 

Rule     5,  par.  3 968 

Rule     6 2057,  2058,  2059,  2060 

2061,  2062 

Rule  7  2091,  2092,  2093 

Rule  8  1950,  1954,  1970,  2035 

Rule  9  1951,  1973,  1975 

1978,  2003 

Rule  10,  .  .561.  1950,  1979,  1986,  1987 

1988,  1989,  1090,  1991 

Rule  11  lf»95 

Paile  12     2088,  2089 

Rule  13    2085 

Rule  14    1997 

Rule  15    1890,  1897,  1898 

Rule   10    2111 

Rule  17   2115 

Rule  18   2113 

Rule  19    2117 

Rule  20 2072,  2073,  2074,  2075 

Rule  21 2066,  2007,  2008,  2009 

2070,  2070 


Code  Section 

Rule  22,  CI.  2 2077,  2078.  2079 

Rule  23,  CI.  1 2124,  2125.  2120 

^  ,  2127 

Rule  24,  CI.  1 1843 

Rule  24,  CI.  2 1344 

Rule  24,  CI.  3 1345 

Rule  24,  CI.  4 1840 

Rule  24,  CI.  5 9131 

Rule  24,  CI.  0 185-^ 

Rule  24,  CI.  7 708 

Rule  25 2105,  2100,  2107 

Rule  20 2044.  2045,  2040.  2047 

2048,  2049,  2050,  2051,  2052,  2053 

Rule  27  2094 

Rule  28  2109 

Rule  29  "  .  "  '  2014 

Rule  30  9199 

Rule  32  20.54 

Rule  33  2030.  2038 

Rule  34.  CI.  1 IG86 

Rule  34,  CI.  2 1(187 

Rule  34,  CI.  3 I688 

Rule  35,  Sec.  1 1930 

Rule  35,  Sec.  2 1992 

Rule  30 1547,  1548,  1924,  2013 

Rule  37,  CI.  1 1902 

Rule  37,  CI.  2 1902 

Rule  37,  CL  3 1902 

Rule  38  1847,  2128 

Rule  39 2132 


PARALLEL    REFERENCES 

SHOWING 

THE   EQUITY   RULES  AND   THEIR   PLACE 


Rule 
Rule 
Rule 
Rule 
Rule 
Rule 


Note: 

1  . 

2  . 

3  . 

4  . 

5  . 

6  . 


IN    THI.S    CODE. 

-Ihese  rules  are  also  printed  in  full  in  appendi.\  I.  B. 


Code  Section 

305 

004 

939 

.940.  941 

942 

943 


Code  Section 

Rule  7  907,  1095 

Rule  8  1096 

Rule  9  1097 

Rule  10 1098 

Rule  11  909 

Rule  12  970 


TABLE  OF  PARALLEL  REFERENCES. 


[Code  Fed 


Code  Section 

Rule   13  371 

Rule  14  972 

Rule  15  973 

Rule   16  974 

Rule  17  975 

Rule   18  977 

Rule  19      978 

Rule  20  944 

Rule  21  945,  946 

Rule  22  947 

Rule  23 948 

Rule  24  949 

Rule  25  965,  1010 

Rule  26  954 

Rule  27  955 

Rule  28  956 

Rule  29  957 

Rule  30  959 

Rule  31  980 

Rule  32  979 

Rule  33  981 

Rule  34  985 

Rule  35  986 

Rule  36  983 

Rule  37  984 

Rule  38  982 

Rule  39  996 

Rule  40  998,  999 

Rule  41  950,  951,  1000 

Rule  42  952 

Rule  43  950 

Rule  44  999 

Rule  45  958 

Rule  46  1007 

Rule  47  1019 

Rule  48  1020 

Rule  49  1021 

Rule  50  1022 

Rule  51  1023 

Rule  52  1025 

Rule  53  1026 

Rule  54  976 


Code  Section 

Rule  55    1112,   1115,  lllG 

Rule  56    !)60 

Rule  57    961 

Rule  58    962 

Rule  59    997 

Rule  60    1006 

Rule  61    1001 

Rule  62    1008 

Rule  63    1002 

Rule  64    1003 

Rule  65    1004 

Rule  66    101)!) 

Rule  67 1037,    1045,    1046.   1047 

1048,   1049,   1050,  1054 

Rule  68    1052 

Rule  69    1055 

Rule  70    1053 

Rule  71     1051 

Rule  72    963 

Rule  73    1076 

Rule  74    1070 

Rule  75    1071 

Rule  76    1078 

Rule  77    1072 

Rule  78    1057 

Rule  79    1073 

Rule  80    1074 

Rule  81     1075 

Rule  82     690,   1069 

Rule  S3    1077,  1079 

Rule  84    1080 

Rule  85    1092 

Rule  86    1090 

Rule  87    1024,   1025 

Rule  88    1094 

Rule  89    806 

Rule  90    937 

Rule  91    938 

Rule  92    1093 

Rule  93    2022 

Rule  94    953 


PARALLEL    REFERENCES 
SHOWING 

THE   GENERAL    ADMIRALTY   RULES 

AND    THEIR    PLACE    IN    THIS   CODE. 

XoTE:— These  rules  are  also  printed  in  full  in  appendix  I.  C. 


Code  Section 

Rule     1    1202 

Rule     2 1203,  2023.  2024,  2025 

Rule     3    1205 

Rule  4 1223,  1964,  1965,  196G 

Rule  5  1216,  1967 

Rule  6  1208,  1224 


Code  Section 

Rule  7    1204 

Rule  8    1211 

Rule  9    1210 

Rule  10    1222.  1996 

Rule  11     1219.  2065. 

Rule  12    1240,  202(> 


Procedure] 


TABLE  OF  PARALLEL  REFERENCES. 


Code  Section 

Rule  13  1241,  1968 

Rule  U  1242,  1977 

Rule  15  1243 

Rule  16  1245 

Rule  17  1246 

Rule  18  1247 

Rule  19  1248 

Rule  20  1213,  1239 

Rule  21  1285 

Rule  22  1199 

Rule  23  1198 

Rule  24  1201 

Rule  25  1225 

Rule  26  1228,  1258 

Rule  27  1259 

Rule  28  1261 

Rule  29  1269 

Rule  30  1262 

Rule  31  1263  I 

Rule  32  1265  ! 

Rule  33  1266 ! 

Rule  34  1227,  1268  1 

Rule  35    1217 


Code  Section 

Rule  36  1200,  1264 

Rule  37  1209 

Rule  38  1212 

Rule  39  1271 

Rule  40  1270 

Rule  41  1287 

Rule  42  1230 

Rule  43  1231 

Rule  44  1282 

Rule  45  77 

Rule  46  805 

Rule  47  1206,  1207 

Rule  48  1260 

Rule  51  1267 

Rule  52  1289 

Rule  53  1226,  1272 

Rule  54 1299,  1300,  1301,  1302 

Rule  55  1303 

Rule  56  1304 

Rule  57  1298 

Rule  58  1305 

Rule  59 1229,  1244,  1273 


PARALLEL    REFERENCES 

TO 

CIRCUIT  COURT  OF  APPEALS   RULES. 

XoTE: — Ihe  C.  C.  A.  rules  for  each  circuit  are  printed  in  full  in  ap- 
pendix I.  E.,  and  at  the  end  of  each,  as  there  printed,  appears  a  reference 
to  the  Code  section  where  it  is  reproduced  or  referred  to. 


Rule 

7 

Rule 

8 

Rule 

9 

Rule 

11 

Rule 

12 

Rule 

13 

Rule 

14 

Rule 

10 

Rule 

17 

Rule 

18 

1950, 


Code  Section 

491 

1887 

839 

1931 j 

2086 

.2015.  2021 

1971,  2035 i 

1978  1 

2118! 

1997  ' 


Code 

Rule  19 1899,  1900 

Rule  20  

Rule  28,  CI.  4 

Rule  30  

Rule  31 1843,  1844,  1846 


Rule  31,   CI.   3 

Rule  31,   CI.  5 

Rule  33 1086,    168] 

Rule  38   (9th  circuit) 


Section 
,  1901 
2110 
2127 
2127 
1983 
1984 
1848 
1852 
1688 
2406 


COURT  OF  CLAIMS  RULES. 

XoTE: — These  rules  are  printed  in  full  in  appendix  I.  D. 
Rule  3    


Code  Section 
1908 


TABLE  OF  PARALLEL  REFEREKCES. 


[Code  Fcd„ 


Note  : 


PARALLEL    EEFERENCES 
TO 

THE     ORDERS    IN     BANKRUPTCY 

SHOWING    WHERE   REPRODUCED    IN    THIS    CODE, 

These  orders  are  also  printed  in  full  in  appendix  II. 
Code  Section 


Order   in   Bankr.      1 2210 

Order  in   Bankr.      2 2217 

Order   in   Bankr.      li 2218 

Order  in   Bankr.     4 2219 

Order  in   Bankr.     i) 2270 

Order  in   Bankr.      (i 2283 

Order  in   Bankr.      7 2282 

Order  in    Bankr.      8 2294 

Order  in   Bankr.      9 2291 

Order  in   Bankr.    10 2220 

Order  in   Bankr.    11 2272 

Order  in  Bankr.    12,  CI.  1 2338 

Order  in  Bankr.    12,   CI.   2....  2.339 

Order  in  Bankr.   12,   CI.  3 2340 

Order  in  Bankr.   13 2246 

Order  in  Bankr.    14 2254 

Order  in   Bankr.   15 2255 


Code  Section 

Order  in  Bankr.   21,   CI.  4. 

Order  in  Bankr.   21,  CI.   5. 

Order  in  Bankr.   21,   CI.   G. 

Order  in  Bankr.    22 

Order  in  Bankr.   23 

Order  in  Bankr 


24. 

Order  in  Bankr.  25. 
Order  in  Bankr.  26. 
Order  in  Bankr.  27. 
Order  in  Bankr.  28. 
Order  in  Bankr.  29. 
Order  in  Bankr.  30. 
Order  in  Bankr.  31. 
Order  in  Bankr.  32. 
Order  in  Bankr.  33. 
Order  in  Bankr.  34. 
Order  in   Bankr.   35. 


!^rl^r   •"  S^"!^!*   ^^ "^^    ^^''^^^  ^"   Bankr.  35,  CI.  2'  ! 

Ti__,._    jj 2250    Order  in  Bankr.   35,   CI.   3.. 


Order   in  Bankr 
Order   in   Bankr 


18 


2317    Order  in  Bankr.  35,  CI. 


Order  in   Bankr.   19 2223    Order  in  Bankr.   36 


Order  in   Bankr.   20 2341 

Order  in   Bankr.    21,  CI.  1 2304 

Order  in  Bankr.   21,  CI.   2...    2305 

Order  in  Bankr.  21,   CI.  3....   2306 


Order  in  Bankr. 
Order  in  Bankr. 
Order  in  Bankr. 
Order   in   Bankr. 


36, 
36, 
37 
38 


CI. 
CI. 
CI. 


4.  . 
1.. 
2.. 
3.. 


2307 
2308 
2309 
2350 
2342 
2310 
2312 
2243 
2343 
2318 
2319 
2320 
2325 
2326 
2323 
2292 
2215. 
2242 
2253: 
2221 
2364 
2365. 
2366 
2207 
2208. 


PART  I. 
FEDERAL  COURTS  AND  THEIR  JURISDICTION. 


CHAPTER  1. 


FEDERAL  JURISDICTION  EN"  GENERAL. 


§     1.     Nature  of  Federal   Judicial   power. 

§     2.     Scope  and  extent. 

§     3.     The  ancillary  jurisdiction  of  Federal  courts. 

§     4.     Federal  Courts  power  to   decide  non-Federal   questions   and  entire 
controversy. 

§     5.     States    may   not   impair   or   regulate    Federal   jurisdiction   or   pro- 
cedure. 

§     6.     Inherent  limitations  on  Federal  judicial  power. 

§     7.     Suits  against  a  State  prohibited. 

§     8.     The  Federal  Courts. 

§     9.     Federal  jurisdiction  is  limited  and  must  affirmatively  appear. 

§  10.     What  law   administered. 

§  11.     — in  admiralty  criminal  and  bankruptcy  cases  and  suits  by  States. 

§  12.    — State  laws   as   rules  of   decision. 

§  13.    — is  there  a  Federal  common  law? 

§  14.     Federal   Constitution  treaties  and  laws  supreme. 

§  15.     When  Federal  jurisdiction  is  exclusive. 

§  16.     Concurrent    and    conflicting    jurisdiction — personal   actions — plea   of 
another  action  pending. 

§  17.     — property   in  custody  of  the  law,  and   garnishment  cases. 

§  18.    — persons  in  custody — habeas  corpus. 

§  19.    — power  of  State  or  Federal  court  to  vacate  or  relieve  against  the 
others  judgment  or  decree. 

§  20.     — Federal   injunction  to   stay  proceedings  in   State   courts. 

§  21.     — State  writ  to  restrain  or  control  Federal  proceedings. 

§  22.     — comity   between  different   Federal   courts. 

§  23.     Suits    by    assignees    and    colorable    transfers    to    obtain    or   defeat 
Federal   jurisdiction. 

§  24.     Citizenship  of  national  banks  for  jurisdictional  purposes. 

§  25.     Territorial  limits  and  extent  of  Federal  jurisdiction. 

§  26.     —District   of   Columbia,   government   forts,   docks   and   buildings. 

§  27.     Federal   jurisdiction   over   crimes   on   Great  Lakes. 

§  28.     Local  law  as  to  remedies  for  improvements,  applies  to  Federal  oc- 
cupants. 

§  29.     The  law  applied  in  civil  rights  cases. 
Fed.  Proc— 1. 


§   1   [a]  FEDERAL  JURISDICTION  IN  GENERAL.  [Code   FecL 

§  1.     Nature  of  Federal  judicial  power. 

'Jlie  judicial  power  of  the  courts  of  the  United  States  is  no; 
merely  the  cognate  of  the  legislative  power  of  Congress,  but  niucli 
l)roadcr.  The  Federal  courts  are  called  upon  to  declare  and  ad- 
minister the  law  between  litigants  and  respecting  matters  whicli 
may  be  the  subject  of  judicial  controversy  in  a  very  large  class  of 
cases  as  to  which  Congress  is  invested  with  no  power  whatever  to 
))rovide  the  rules  by  which  those  controversies  are  to  be  deter- 
minedJ^^  From  this  it  results  that  tlie  Federal  courts  derive  many 
of  the  legal  rules  and  principles  which  they  apply  from  other 
sources  than  the  enactments  of  Congress.  They  come  in  part  from 
the  State,  through  State  constitutions,  statutes  and  common  law ;  in 
])art  from  the  national  government,  through  the  Federal  Constitu- 
tion and  laws;  and  in  part  from  no  acknowledged  law-making 
power  at  all,  but  from  what  is  termed  international  law  or  the  law 
of  nations. f^^  While  Congress  is  unable  to  declare  the  substan- 
tive rules  of  law  applicable  to  all  legal  controversies  of  Federal 
cognizance,  it  has  an  important  control  over  these  substantive  rules 
through  its  power  to  prescribe  the  procedure  and  regulate  or  declare 
the  remedies  that  shall  be  applicable  to  suits  in  the  Federal 
courts.f'^^-C'^^ 

Author's  section. 

[a]     Federal  judicial  power  broader  than  legislative. 

It  has  been  said  tliat  the  powers  of  the  legislative,  executive  and  judicial 
branches  should  be  coextensive  and  that  the  judiciary  should  have  power 
to  construe  every  law  which  the  legislative  branch  has  power  to  enact,  i 
Undoubtedly  the  Federal  judiciary  possesses  this  power  of  construction 
and  exposition.  This,  however,  serves  but  to  emphasize  a  much  wider  and 
more  important  jurisdiction  which  it  also  possesses.  There  are,  for  in- 
stance, many  constitutional  prohibitions  as  to  which  Congress  has  no  sort 
of  power  to  legislate,  that  may  nevertheless  demand  the  intervention 
of  Federal  courts  imder  what  may  be  termed  their  restrictive  powers. 
Thus,  the  familiar  prohibition  against  a  deprivation  of  property  by  a 
State  without  due  process  of  law,  does  not  authorize  Congress  to  provide 
due  process  of  law  for  the  vindication  of  this  right. 2  Yet  the  power 
of  the  courts  to  protect  this  and  all  other  constitutional  rights 
against  infraction  by  Congress  or  the  States  is  obvious  and  well  settled. 
Again,  Congress  cannot  legislate  as  to  contracts  or  other  transactions  be- 
cause arising  between  citizens  of  different  States  or  citizens  and  aliens.  Yet 
the  Federal  courts  have  been  given  a  jurisdiction  over  controversies  grow- 

Osburn  V.  United  States  Bank,  9  2Civil  Risrhts  Cases.  10!)  U.  S.  3, 
Wheat,  818,  6  L.  ed.  223.  27  L.  ed.  840,  3  Sup.  Ct.  Rep.  22. 

2 


Procediue]  NATURE    OF    FEDERAL    JUDICIAL    TOWER.  §   1    [b] 

ing  out  of  tliese  matters  by  reason  of  the  cliaraetor  of  the  parties  in- 
volved, and  quite  outside  either  the  legislative  powers  of  Congress  or  the 
prohibitions  of  the  Federal  constitution.  In  the  cases  where  the  judicial 
power  is  but  the  correlative  of  the  legislative — of  which  patent  and  bank- 
ruptcy matters  are  illustrations — the  Federal  judicial  power  is  plenary 
and  in  its  nature  properly  exclusive.  In  the  class  of  cases  where  the  ju- 
dicial function  is  restrictive,  Federal  courts  are  concerned  primarily  with 
the  protection  of  some  Federal  right,  or  rights,  and  do  not  extend 
their  inquiries  beyond.  In  the  cases  where  the  jurisdiction  depends  on 
the  character  of  the  parties,  the  national  government  is  not  necessarily 
otherwise  concerned  than  as  furnishing  an  impartial  arbitrator  between 
persons  whose  legal  rights  are  or  may  be  entirely  governed  by  local  or 
State  laws.  There  is  yet  another  class  of  controversies  justiciable  in  the 
highest  Federal  court  because  of  the  parties  involved,  and  quite  outside  of 
the  law-making  power  of  either  State  or  nation;  controversies,  namely,  be- 
tween States  of  the  Union.s  These  give  to  the  Supreme  Court  the  dignity 
and  importance  of  a  quasi  international  tribunal. 

It  is  of  course  not  always  true  that  a  case  falls  within  some  one  of 
these  four  classes  of  controversies  to  the  entire  exclusion  of  the  others. 
A  controversy  between  citizens  of  different  States  may  involve  one  or 
more  Federal  questions,  and  a  cause  concerned  primarily  with  the  na- 
tional patent  law  may  involve  some  question  of  local  jurisprudence.  It  is 
true,  however,  that  causes  going  from  a  State  court  to  the  Supreme  Court 
on  writ  of  error,  always  present  a  case  concerned  only  with  what  is  above 
termed  the  restrictive  power  of  the  Federal  courts;*  and  that  in  such  cases 
the  Supreme  Court  refrains  from  a  consideration  of  any  questions  of  local 
law.  5 

[b]     Federal  courts  administer  local,  national,  and  international  law. 

In  these  several  classes  of  controversies  which  the  Constitution  has  made 
of  Federal  cognizance,  the  Federal  coiu'ts,  are,  or  may  be,  called  upon  to 
administer  rules  and  principles  of  State  law,  rules  prescribed  by  Congress, 
rules  and  principles  enunciated  by  the  Supreme  Court  in  the  discharge  of 
its  important  function  of  interpreting  and  expovinding  the  Federal  con- 
stitution, and  rules  and  principles  of  international  law.  The  question  a;, 
to  the  authoritative  and  proper  source  whence  the  Federal  courts  shall 
derive  the  rules  of  substantive  law  applicable  in  these  various  classes  of 
controversies  is  of  the  utmost  importance,  and  is  considered  in  subsequo}iu 
sections  of  this  code.6  The  Federal  courts  have  developed  a  very  consider- 
able body  of  learning  in  their  exposition  and  application  of  the  various 
rules  and  principles  of  local  and  national  law,  but  as  yet  the  Supreme 
Court  has  established  but  few  precedents  to  indicate  the  foundation  upon 
which  its  framework  of  quasi  international  jurisprudence  is  to  be  up- 
reared.  This  is  largely  due  to  the  infrequenc.y  of  legal  disputes  between 
States  of  the  Union  except  over  matters  of  boinidary,  and  in  part  to  t!:c 

3See  post.  §  2.  epost,  §   10  et  seq. 

4Post,  §  ;5S. 
sPcst,  §  2084. 


S   1   [c]  FKDERAL   JURISDICTION    IX    GENEUAL.  [Code  Fed. 

reluctance  of  the  court  to  assume  this  function  except  in  cases  of  absolute 
necessity.''  The  admiralty  jurisdiction  of  the  Federal  courts  presents  many 
features  that  would  justify  its  separate  classification.  It  is  a  sort  of  com- 
mon law  of  the  seas,  not  founded  upon  act  of  Congress;  s  and  the  Federal 
courts  resort  to  establish  precedents  and  the  writings  of  admiralty 
jurists  for  the  principles  that  they  expound  and  the  rules  that  they 
apply  in  admiralty  causes.  Nevertheless  the  power  of  Congress  to 
modify,  amend,  and  add  to  the  law  maritime  is  established;  and  if  right- 
fully so,  then  the  Federal  jvidicial  power  of  expounding  admiralty  law 
is  but  the  correlative  of  the  power  of  Congress  to  enact  it. 

[c]  Power  of  Congress  over  procedure,  as  affecting  substantive  law. 
Keeping   in   mind  the   fact   that   Federal   courts   are   called   upon   in   in 

numerable  cases  to  expound  and  apply  rules  of  local  or  State  law  as  to 
which  Congress  has  no  legislative  power,  and  the  further  fact  that  Con- 
gress has  the  power  to  prescribe  the  forms  of  procedure  and  the  remedial 
machinery  in  all  such  cases,9  it  is  plain  that  Congress  has  a  most  im- 
portant power  of  influencing  the  administration  of  purely  local  law., 
through  its  control  over  Federal  procedure.  Furthermore,  as  the  substan- 
tive law  administered  by  the  Federal  courts  in  many  controversies  justici- 
able before  thorn,  has  its  source  in  one  sovereignty  and  the  law  of  proced- 
ure in  another,  it  is  also  obvious  that  the  Federal  courts  nmst  distinguish 
sharply  between  substantive  law  and  procedure,  in  order  to  determine  the 
scope  of  the  power  of  Congress  to  prescribe  the  law  applicable  in  contro- 
versies before  thei: ..  and  to  decide  when  fundamental  principles  underly- 
ing our  system  of  dual  sovereignties  require  them  to  accept  the  rules  of 
substantive  law  which  the  law-making  power  of  the  State  prescribes,  with- 
out qualifications  or  additions  of  their  own  making.  This  matter  is  con- 
sidered in  detail  in  subsequent  code  sections.io  It  so  happens  that  Con- 
gress has  always  followed  the  policy  of  assimiliating  the  Federal  procedure 
ia  common -law  cases  to  that  of  the  State  courts  ;ii  has  adopted  the  State 
remedies  of  attachment,  execution  and  the  like;  12  the  state  law  as  to 
limitation  of  actions;  13  and  as  to  execution  liens. i*  Congress  has  also 
declared,  in  terms,  that  State  law  shall  be  the  rule  of  decision  in  Federal 
courts  except  when  in  conflict  with  the  Federal  law. is  This  legislation 
has  prevented  the  distinctions  above  pointed  out  from  becoming  of  prac- 
tical moment  in  the  great  majority  of  cases.  It  has  also,  it  is  conceived, 
and  perhaps  unfortunately,  prevented  that  examination  and  elucidation 
of  basic  principles  which  the  Supreme  Court  might  otherwise  have  made. 

[d]  Difficulty  of  the  subject. 

It  is  not  surprising  that  Federal  procedure  presents  many  difficult  and  in- 
tricate questions  demanding  the  most  careful  study.  The  Federal  courts  ex- 
ernise  four  distinct  jurisdictional  functions.  They  administer  State,  Federal, 

^Missouri  v.  Illinois.  200  U.  S.  496,  uPost,  §  flOO. 

50  L.  ed.  572,  26  Sup.  Ct.  Eep.  713.  ispost.  §§  005,  925. 

sPost,  §   11.  isSee  post,  §  870. 

sSee  post.  §  790.  i^Post,  §  1862. 

loPost,  §§  10  et  seq;  799.  ispost,  §  12. 


Procedure]  SCOPE  AND  EXTENT.  §  2   [a] 

and  inteniational  law,  and  the  law  of  the  seas.  They  are  required  to  pre- 
serve the  ancient  distinction  between  common  law  and  equity,  often  in  the 
face  of  State  laws  planned  to  effect  its  abolition.  And  finally  they  must  not 
only  restrain  unconstitutional  action  by  other  departments  of  government, 
State  and  Federal,  but  must  themselves  refrain  from  exceeding  the  jur- 
isdiction conferred  upon  tliem,  and  from  ignoring  the  source  whence  the 
substantive  law  they   administer  should  be  derived. 

§  2.     Scope  and  extent. 

The  judicial  power'^^^  shall  extendi^^^  to  all^'^^  cases  in  law  and 
equity f'^^"^®^  arising  under  this  Constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  which  shall  be  made,  under 
their  authority  ;'^^^"f^^  to  all  cases  affecting  Ambassadors,  other  pub- 
lic ministers,  and  consuls  ;™'f-'^  to  all  cases '^'^^"^^^  of  admiralty  and 
maritime  jurisdiction  ;'^'^^"'^'^'^^  to  controversies^'^^'^®^  to  which  the 
United  States  shall  be  a  party  ;f'^"f'"^  to  controversies^'^^'f®^  between 
two  or  more  States  ;'^"^''^p^  between  a  State  and  citizens  of  another 
State  ;f°^  between  citizens  of  different  States  ;'^*i^''^^^  between  citizens 
of  the  same  State  claiming  lands  under  grants  of  different  States, ^^^ 
and  between  a  State, ■^°^  or  the  citizens  thereof,  and  foreign  States,^^^ 
citizens,  or  subjects. 

U.  S.  Cons.  Art.  Ill  §  2. 

[a]     Judicial  power  defined. 

The  judicial  power  or  jurisdiction  of  courts,  is  the  power  to  hear  and 
determine  a  cause;  i  to  hear  and  determine  the  subject  matter  in  contro- 
versy between  parties  to  a  suit; 2  the  power  to  declare  the  law. 3  The  exer- 
cise of  judicial  power  over  the  parties  to  a  suit  is  the  exercise  of  jurisdic- 
tion.* When  it  has  once  attached,  a  court  may  decide  the  entire  causeJ  and 
retains  jurisdiction  after  judgment  until  complete  relief  is  accorded  within 
the  scope  of  the  subject  matter  involved.s  The  repeal  of  a  law  conferring 
jurisdiction  ousts  jurisdiction  in  pending  causes.'? 

lUnited    States     v.     Arredondo,    6  U.  S.  220,  31   L.  ed.  402,  8  Sup.  Gt. 

Pet.  709,  8  L.  ed  547;  Overbv  v.  Gor-  Rep.  482. 

don,    177    U.    S.   220,   221,   44   L.    ed.  6 Ward  v.  Todd,  103  U.  S.  329,  26 

744,  20  Sup.  Ct.  Rep.  &03.  L.  ed.  339;  Way  man  v.  Southard,  10 

2Rhode  Island  v.  Massachusetts,  12  Wheat.    23,   6    L.    ed.    253 ;    Bank    of 

Pet.  718,   9  L.   ed.   1233,   Grignon  v.  United  States  v.  Halstead,  10  Wheat. 

Astor,  2  How.   338,   11   L.  ed.  283.  04,  G  L.  ed.  264. 

3Ex  parte  McCardle,  7  Wall.   514,  "Insurance  Co.  v.  Ritchie,  5  Wall. 

19  L.  ed.  204.  544,   18  L.   ed.   540;    Assessor  v.   Os- 

4Rhode  Island  v.  Massachusetts,  12  bornes,  9  Wall.   5G7,   19  L.  ed.   748; 

Pet.  718,  9  L.  ed.  123.3.  Railroad  Co.  v.  Grant.  98  U.  S.  401, 

5Elliott  V.  Peirsol,  1  Pet.  340,  7  L.  25  L.   ed.   231;    Sherman   v.  Grimiell, 

od.    164:    Grignon    v.    Astor,   2   How.  123  U.  S.  GSO,  31   L.  ed.  278,  8  Sup. 

343,  11  L.  ed.  283;  In  re  Sawyer,  124  Ct.   Rep.   260;    National    Ex.   Bk.    v. 


S   2   [b]  FEDERAL  JURISDICTION   IN  GENERAL.  [Code  Fed. 

[b]  Meaning  of  words  "shall  extend." 

Thoso  words  are  used  in  an  imperative  sense  and  the  entire  section  is 
mandatory,  so  that  Congress  could  not,  without  violation  of  its  duty,  have 
refused  to  carry  it  into  operation. s  It  is  the  duty  of  Congress  to  vest  all 
tlie  judicial  power  either  in  appellate  or  original  form.!*  The  enumeration 
of  matters  of  Federal  jurisdiction  in  this  section,  negatives  the  exercise  of 
any  jurisdiction  not  comprehended  within  it.io  Courts  created  by  written 
law  cannot  transcend  the  jurisdiction  conferred.!  i  in  other  words.  Federal 
courts  are  courts  of  limited  jurisdiction  which  must  affirmatively  appear.12 

[c]  When  jurisdiction  extends  to  "all  cases"  and  when  not. 

As  to  all  cases  arising  under  the  constitution,  laws  and  treaties,  or  in- 
volving the  admiralty  jurisdiction,  foreign  ministers  and  consuls,  the  con- 
stitution requires  that  Congress  shall  in  every  instance  provide  a  Federal 
tribunal,  though  not  necessarily  of  original  cognizance.  The  words  are  sat- 
isfied by  authorizing  merely  an  appellate  jurisdiction  in  the  Federal  courts, 
since  the  manner  in  which  Congress  shall  extend  the  jurisdiction  is  within 
its  discretion.!  3  Hence,  the  jurisdiction  is  not  necessarily  exclusive,  al- 
though it  has  been  said  it  may  be  made  so.i*  In  vesting  jurisdiction  in  the 
remaining  cases  included  in  the  above  section,  the  word  "all'  is  omitted. 
But  this  omission  is  of  no  significance  as  respects  civil  cases  where  a 
State  is  party  since  the  next  clause  of  the  Constitution  expressly  confers 
jurisdiction  on  the  Supreme  Court  of  "all"  such  cases.is  It  is  of  signifi- 
cance, however,  in  controversies  between  citizens  of  difi'erent  States,  where 
land  is  claimed  imder  grants  for  different  States,  and  between  citizens,  for- 
eign States,  citizens  or  subjects.  In  such  cases  Congress  need  not  vest 
jurisdiction  over  all  cases  and  has  in  fact  always  restricted  the  jurisdic- 
tion to  cases  involving  a  substantial  sum. is  The  extension  of  jurisdiction 
to  cases  in  which  the  United  States  is  party,  omitting  the  word  "all,"  was 
also  by  design,  saving  the  government  from  imperative  provisions  either 
in  the  matter  of  suing  or  of  being  sued,  and  leaving  Congress  free  to 
make  regulations  from  time  to  time.iT 

[d]  Cases  in  law  and  equity,  and  controversies  defined. 

It  is  not  every  violation  of  the  Constitution  that  is  justiciable  in  the 
Federal  courts,  but  only  such  as  arise  in  some  case  in  law  or  equity.! s 

Peters,  144  U.  S.  572,  36  L.  ed.  545,  isMartin  v.  Hunter.  1  Wheat.  334, 

12  Sup.  Ct.  Rep.  767.  4  L.  ed.  104,  105;  The  Moses  Taylor, 

SMartin  v.  Hunter,  1   Wheat.  328,  4  Wall.  411,  IS  L.  ed.  401;   ]\Iavor  v. 

331.  4  L.  ed.  103,  104.  Cooper,  6  Wall.  247.  IS  L.  ed.  852. 

SMartin  v.  Hunter,  1   Wheat.  328,  i4The  Moses  Taylor,  4  Wall.  411, 

4  L.  ed.  104.  18  L.  ed.  401.     See  post,  §  15. 

!OMarbury   v.    Madison,    1    Cranch,  !5Post,  §  35. 

173,  2    L.    ed.    72;     National    Exch.  isMartin  v.  Hunter,  1  Wheat.  335, 

Bank  v.  Peters,  144  U.  S.  573,  3G  L.  336,  4  L.  ed.   105. 

ed.  545,  12  Sup.  Ct.  Rep.  767.  i^Ibid. 

i!Ex  parte  BoUman,  4  Cranch,  93,  isCohens  v.  Virginia,  6  Wlieat.  264, 

2  L.  ed.  554.  5  L.  ed.  257. 

i2See  post,  §  9. 

6 


Procedure]  SCOPE   AND   EXTENT.  §   2    [e] 

"The  judicial  power  only  becomes  capable  of  acting  when  the  subject  is 
submitted  to  it  by  a  party  who  asserts  his  right  in  the  form  prescribed 
by  law.  It  then  becomes  a  case." 1 9  A  suit  by  the  United  States  to  de- 
termine the  question  of  fraud  in  obtaining  an  award  against  Mexico, 
brought  imder  act  of  1892,  has  been  held  to  be  a  "case"  within  this  sec- 
tion. 20  A  common-law  cause  is  one  in  which  legal  rights  are  ascertained 
and  determined;  and  an  equity  case  is  one  in  which  relief  is  sought  ac- 
cording to  the  principles  and  practice  of  equity  jurisprudence  as  estab- 
lished in  England. 1  A  proceeding  to  obtain  from  the  Federal  district  court, 
a  license  for  ocean  and  coastwise  vessels  is  not  an  action  or  suit,  within 
the  judicial  power  granted  by  this  section  of  the  Constitution. 2  Many  ad- 
ministrative acts  involving  the  exercise  of  judgment  upon  law  and  fact, 
svich  as  the  auditing  of  the  accounts  of  a  receiver  of  public  moneys,  may 
be  made  the  subject  of  judicial  controversy,  but  are  nevertheless  not 
strictly  an  exercise  of  judicial  power.  3  A  proceeding  before  a  territorial 
judge  to  obtain  an  award  of  damages  pursuant  to  a  treaty  is  not  a  case 
and  the  judge  does  not  act  judicially.*  But  a  claim  for  fugitive  slaves 
has  been  held  a  judicial  controversy. 5  In  a  legal  sense,  action,  suit,  and 
cause  are  convertible  terms,  and  an  application  for  habeas  corpus  is  a 
"cause"  within  the  law  permitting  certification  of  questions  where  the 
circuit  judges  are  divided  in  opinion. 6  A  proceeding  by  a  creditor  to  have 
a  debtor  adjudged  bankrupt  has  been  held  a  case;  7  also  extradition  pro- 
ceedings against  a  fugitive  from  justice.?  This  subject  is  further  consid- 
ered in  determining  what  constitutes  a  case  within  the  law  defining  the 
jurisdiction  of  the  circuit  court,  both  original  and  on  removal.9 

[e]     Moot  questions  and  absence  of  actual  controversy. 

Where   there   ceases   to   be   any   real   controversy   between   parties   to   a 
pending  cause  it  will  be  dismissed n*  and  it  is  the  court's  duty  to  investi- 

isOsbom      V.      Bank      of      United  Weston  v.  Charleston,  2  Pet.  449,  7 

States,  9  Wheat.  819,  6  L.  ed.  212.  L.  ed.  481 ;  so,  also,  is  a  petition  for 

2  0La     Abra     etc.     Co.     v.     United  habeas  corpus.     Holmes  v.  Jennison, 

States,  175  U.  S.  453-457,  44  L.  ed.  14  Pet.  540.  10  L.  ed.  579. 

232,  20  Sup.  Ct.  Rep.  168.  ^In  re  Oregon  Bulletin  Co.,  3  Saw. 

ilrvine  v.  Marshall,  20  How.   565,  531,  Fed.  Cas.  No.  10,500. 

15  L.  ed.  994.  sin   re  Metzger,   17   Fed.  Cas.  Xo. 

2Pacific  S.  W.  Co.  V.  United  States,  234. 

187  U.  S.  447,  47  L.  ed.  253,  23  Sup.  sSee  post,  §  129,  et  seq. 

Ct.  Rep.   154.  locieveland      v.      Chamberlain,      1 

SMurrav  v.  Hoboken  L.  Ins.  Co.  18  Black,  426,  17  L.  ed.  93;  Wood  Paper 

How.  272,  15  L.  ed.  376.  Co.  v.  Heft,  8  Wall.   336,   19  L.   ed. 

^United     States     v.     Ferreira,     13  379;   South  etc.  Min.  Co.  v.  Amador 

How.  40,  46,  14  L.  ed.  44.  etc.  Min.  Co.  145  U.  S.  301,  12  Sup. 

sPrigsr    V.    Pennsylvania,    16    Pet.  Ct.  Rep.  921,  36  L.  ed.  712;    Dakota 

5.3.0.  10  L.  ed.  1060.'  Co.  v.  Glidden,  113  U.  S.  225,  28  L. 

6Ex  parte  Milligan,  4  Wall.  121,  18  ed.  981,  5  Sup.  Ct.  Rep.  428;    Card- 

L.  ed.  292,  293.     A  suit  is  the  prose-  ner  v.  Goodyear  Co.  131   U.  S.  CUT., 

cution    of    some   demand    in    a    court  21   L.  ed.  141;   Little  v.  Bowers,   134 

of    justice;     Cohens    v.    Virginia,    6  U.  S.  558,  559.  33  L.  ed.  1016,  10  Sup. 

Wheat.  264,  5  L.  ed.  257.     The  term  Ct.  Rep.  620;   East  Tenn.  etc.  11.  R. 

is    comprehensive    and    a    proceeding  v.  Southern  Tel.  Co.  125  U.  S.  696,  31 

for    writ    of    prohibition    is    a    suit;  L.  ed.  853.  8  Sup  Ct.  Rep.  1391.     See 


§  2   [t]  FEDERAL  JURISDICTION  IN  GENERAL.  [Code  Fed 

gate  upon  motion  and  affidavits,  any  suggestion  that  the  parties  have  »iom- 
posed  their  difTerences  and  are  imposing  upon  the  court. n  If  one  party 
has  unconditionally  paid  the  amount  in  dispute  appeal  will  be  dismissed.!  2 
Courts  will  not  decide  abstract  or  moot  questions;  there  must  be  an 
actual  controversy  in  regard  to  rights  which  actually  exist  and  are  capable 
of   enforcement.  13 

[f]  "Arising  under"  the  Federal  constitution,  etc. 

"A  case  in  law  or  equity  consists  of  the  right  of  one  party  as  well  as  of 
the  other,  and  may  truly  be  said  to  arise  under  the  Constitution  or  a 
law  of  the  United  States,  whenever  its  correct  decision  depends  on  the 
right  construction  of  either."i*  This  construction  is  necessary  to  support 
the  extension  of  the  appellate  power  to  cases  in  the  State  courts  not 
founded  upon  a  Federal  right,  but  in  which  a  Federal  right  is  asserted  and 
denied  during  the  progress  of  the  cause  to  final  judgment.  In  construing 
the  law  granting  jurisdiction,  original  or  by  removal,  to  the  circuit  courts 
in  cases  "arising  under"  the  Federal  Constitution,  etc.,  the  term  has  been 
given  a  narrower  meaning  and  requires  that  the  cause  be  founded  upon  a 
Federal  right  which  must  appear  from  plaintiflf's  bill  or  complaint. is  It 
is  not  necessary  that  a  case  involve  nothing  but  a  Federal  question  to 
come  within  the  constitutional  grant,  nor  is  the  Federal  jurisdiction  neces- 
sarily limited  to  a  consideration  of  that  question. ig 

[g]  Cases  under  the  Federal  Constitution,  laws  and  treaties. 

Criminal  cases  are  included  within  these  terms  as  well  as  civil  cases. i" 
If  the  title  or  right  set  up  would  be  defeated  by  one  construction  (.f  the 
Federal  Constitution  and  laws,  and  sustained  by  the  opposite  constructioii, 

Security  etc.  Ins.  Co.  v.  Preivitt.  200  409,  45  L.  ed.  254,  21   Sup.  Ct.  Ren. 

U.    S.   446,   50   L.    ed.    545,    26    Sup.  206,  Security  etc.  Ins.  Co.  v.  Prewitt. 

Ct.  Rep.  314.  200  l^.  8.  446,  50  L.  ed.  545,  26  Sup. 

iiHatfield  v.  King.  184  U.  S.  165,  Ct.  Rep.  314. 

46  L.  ed.  481,  22  Sup.  Ct.  Rep.  477.  i^Cohens  v.  Virginia,  6  Wheat.  379, 

i2San   Mateo  Co.  v.   Southern  Pa-  5  L.  ed  257;  Tennessee  v.  Davis,  100 

cific  R.  R.  Co.  116  U.  S.  141,  142,  29  U.  S.  257,  25  L.  ed.  648;  U.  S.  v.  Old 

L.    ed.    589,    6    Sup.    Ct.    Rep.    317:  Settlers,  148  U.  S.  427,  37  L.  ed.  509. 

Singer  Mfg.  Co.  v.  Wright,  141   U.  S.  13  Sup.  Ct.  Rep.  650;   Nashville  etc. 

700',  35  L.  ed.  906,   12  Sup.  Ct.  Rep.  Rv.  v.  Tavlor,  86  Fed.  181. 

103;     California    v.    San     Pablo    etc.  'isSpeer*  v.  Colbert,  200  U.   S.   130, 

R.  R.   149  U.  S.   313,  37   L.  ed.  747,  50  L.  ed.  403,  26  Sup.  Ct.  Rep.  201. 

13  Sup.  Ct.  Rep.  876.  See  post,  §§  129,  133.     This  was  nec- 

isWaite  v.  Dowley,  94  U.  S.  534,  24  essary   to   prevent   impositions    upon 

L.   ed.    181;    Williams  v.  Hagood,   98  the     Federal     jurisdiction     since     in 

U.   S.  75,  25  L.   ed.   51 ;    Cheong  Ah  causes  triable  in  the  Federal  courts, 

Moy  V.  United  States,  113  U.  S.  218,  non-Federal  questions  are  equally  ex- 

28  L.   ed.   983,  5  Sup  Ct.   Rep.   431;  aminable.     See  post.  §  4. 

Marye  v.  Parsons,  114  U.  S.  330,  29  isOsborn     v.     Bank     of     U.     S.     9 

L.  ed.  205,  5  Sup.  Ct.  Rep.  932,  962;  Wheat.   820,  823,  6   L.  ed.   204.     See 

:vrills  V.  Creen,   159   V.  S.  653,  40  L.  also  post.  §  4,  note   [b]. 

ed.  293,  16  Sup.  Ct.  Rep.   132:   Kim-  i^Tennessee    v.    Davis,    100    U.    S. 

ball  V.  Kimball,  174  U.  S.  161,  43  L.  257,  25  L.  ed.  648. 
ed.  932;   Tyler  v.  Judges,  179  U.  S. 

8 


rrocedure]  SCOPE   AND   EXTENT.  I  2    [h} 

it  comes  within  this  provision. 1 8  The  section  covers  the  case  of  a  con- 
troversy depending  upon  the  con.struction  and  effect  of  an  act  of  Congress,i3 
such  as  a  controversy  over  the  exercise  of  a  right  to  construct  and  operate 
a  road,  derived  from  Congress. 20  A  claim  by  the  owner  of  a  fugitive  slave 
is  a  case  arising  under  the  Constitution  and  laws.i  So,  also  is  a  seizure 
for  violation  of  the  slave  trade  act. 2  Controversies  as  to  land  titles  found- 
ed on  acts  of  Congress  and  depending  upon  the  construction  of  those  acts;3 
controversies  vmder  patent  laws*  and  tmder  copyrights  and  revenue  laws,6 
are  all  included.  It  is  well  settled  that  where  a  corporation  is  created  by 
act  of  Congress  a  suit  by  or  against  it  is  one  arising  under  the  Federal 
laws.'^  Hence  a  provision  in  the  charter  authorizing  suit  by  or  against 
it  in  the  circuit  court  is  valid.s  An  application  for  habeas  corpus  alleg- 
ing that  petitioner  is  in  custody  of  State  officers  in  violation  of  the  Fed- 
eral Constitution  presents  a  controversy  under  the  Federal  Constitution 
which  Congress  has  power  to  make  cognizable  in  the  Federal  courts. 3  A 
full  discussion  of  cases  arising  under  the  Federal  Constitution  and  laws, 
will  be  found  in  the  chapters  dealing  with  the  jurisdiction  of  the  circuit 
court,  both  original  and  on  removal, 10  and  with  the  jurisdiction  of  the 
Supreme  Court   and  the   circuit   court  of  appeals. n 

[h]     Cases  affecting  ambassadors  and  other  public  ministers. 

"Other  public  ministers"  includes  envoys,  ministers,  commissioners, 
charges  d'  affaires,  and  agents,  duly  accredited  by  the  state  department 
and  empowered  to  discuArge  diplomatic  duties  for  their  respective  govern- 
ments. 12  In  deciding  the  question  of  the  diplomatic  character  of  a 
foreign  representative,  the  courts  are  controlled  by  the  action  of  the  state 
department.! 3     The  next  clause  of  the  Constitution  vests  in  the  Supreme 

isOsborne  v.  U.  S.  Bank,  9  Wheat.  160  U.  S.  93,  40  L.  ed.  340,  16  Sup. 
822,  6  L.  ed.  204.  Ct.  231;   Texas  etc.  Ry.  v.  Codv,  166 

isRailroad  Co.  v.  Mississippi,  102  U.  S.  609,  41  L.  ed.  1132,  17  Slip.  Ct. 
U.  S.  140,  26  L.  ed.  96.  Rep.  703. 

2  0Southern  Kansas  R.   R.  v.   Bris-        sQsborn  v.  U.   S.   Bank,   9  Wheat. 
coe,  144  U.  S.  135,  36  L.  ed.  377,  12    828,  6  L.  ed.  225. 
Sup.  Ct.  Rep.  538.  9Ex  parte   Royall,   117   U.   S.   250, 

iPrigg  v.  Pennsylvania,  16  Pet.  29  L.  ed.  868,  6  Sup.  Ct.  Rep.  739. 
016,  16  L.  ed.  1060.  Compare    Clifford    v.    Williams,    131 

2The  Slavers  (Reindeer),  2  Wall.  Fed.  100  where  application  was  based 
402,  17  L.  ed.  911.  on  allegation  of  denial  of  full  faith 

sChouteau  v.  Eckhart,  2  How.  372,    and  credit  to  a  decree  as  to  custody 
11   L.  ed.  293;   Stanlev  v.  Schwalby,    of  a  child. 
147  U.  S.  518,  37  L.  ed.  259,  13  Sup.        loPost,  §§   129,  133. 
Ct.  Rep.  418.  iiPost,   §§    39,   42. 

4Birdsdall  v.  Coolidge.  93  U.  S.  68,  127  Ops.  Atty.  Gen.  186,  R.  S.  § 
23  L.  ed.  802.  4130.     An    attache    is    also    included. 

sLittle  V.  Hall,  18  How.  171,  15  United  States  v.  Benner,  Baldw. 
T     ed.   328.  234,  Fed.  Cas  Xo.  14568. 

-•insurance  Co.  v.  Ritchie,  5  Wall.  isEx  parte  Hitz,  111  U.  S.  767,  28 
543,  18  L.  ed.  540.  L.   ed.   592,  4   Sup.  Ct.  Rep.  698;    In 

TOsborn  v.  U.  S.  Bank,  9  Wheat,  re  Baiz.  135  U.  S.  421,  10  Sup.  Ct. 
828,  6  L.  ed.  225;  Northern  Pac.  R.  Rep.  854,  34  L.  ed.  222;  United 
R.  v.  Amato,  144  U.  S.  471,  30  L.  ed.  States  v.  Liddle,  2  Wash.  C.  C.  205, 
506,  12  Sup.  Ct.  Rep.  740;  Washing-  Fed  Cas.  No.  15.598;  United  States 
ton  etc.  Ry.  v.  Coeur  D'  Aleue  Ry.    v.  Benner,  Baldw.  234,  Fed.  Cas.  No. 

9 


§   2   [1]  FEDERAL  JURISDICTION  IN  GENERAL.  iCode   Fed. 

Court  exclusive  jurisdiction  of  suits  or  proceedings  against  such  diplomatic 
functionaries  and  their  domestics  or  domestic  servants.  It  furtlier  vests 
original  but  not  exclusive  jurisdiction  in  that  court  of  suits  by  such  digni- 
taries, n  This  provision  of  the  Constitution  was  incorporated  by  Congress 
in  the  judiciary  act  of  1789  and  has  been  retained  in  the  Revised  Statutes. 
But  Congress  has  not  vested  in  any  inferior  court  a  concurrent  original 
jurisdiction  of  suits  by  diplomatic  agents,  eo  nomine,  nor  has  it  made 
specific  provision  for  review  of  cases  voluntarily  brought  by  such  persons 
in  the  State  or  inferior  Federal  courts.  There  is  no  provision  or  principle 
of  law  forbidding  suit  by  a  public  minister  in  the  inferior  Federal  courts 
in  cases  otherwise  of  Federal  cognizance,  e.  g.,  because  arising  under  the 
Federal  laws  or  because  between  an  alien  and  citizens.ie  If  any  such 
person  were  impleaded  as  defendant  in  the  State  court  and  his  constitu- 
tional immunity  from  such  suit  were  denied  or  even  ignored,  error  would 
lie  from  the  Federal  Supreme  Court. i'?  By  the  Crimes  act  of  1790,  R.  S. 
§§  4062-4066,  Congress  has  forbidden  issue  of  process  against  foreign  min- 
isters and  their  registered  domestics  and  has  prescribed  penalties  for  the 
issue  of  such  process  and  for  the  offence  of  assaulting  or  violating  the  safe 
conduct  of  any  public  minister.is  But  an  indictment  for  such  an  assault 
is  not  a  case  affecting  a  public  minister,  within  the  provision  of  the  Con- 
stitution here  under  consideration.! 9 

[i]     Suits  against  consuls. 

The  term  "consul"  includes  consuls-general,  vice  consuls-general,  cosnuls, 
vice  consuls,  commercial  agents,  and  vice  commercial  agents.i  A  consul  is 
a  commercial  and  not  a  diplomatic  agent,2  and  Congress  has  kept  this  dis- 
tinction in  view  in  all  its  legislation  upon  the  subject.  The  jurisdiction  of 
the  Supreme  Court  while  original,  is  not  exclusive;  it  may  therefore  be 
exercised  in  appellate  form  and  Congress  may  vest  original  jurisdiction  in 
the  inferior  Federal  courts.^  Accordingly  Congress  gave  the  district  court 
jurisdiction  of  all  suits  civil  and  criminal  against  consuls  or  vice  consuls 
except  in  criminal  cases  of  more  than  a  prescribed  penalty  in  which  latter 
cases  the  circuit  court  has  jurisdiction.'*     The  judiciary  act  of  1789  made 

14,568;    United    States   v.   Oretga,   4        isUnited     States     v.     Ortega,     11 

Wash.  C.  C.  531,  Fed.  Cas.  No.  15,971.  Wheat.  467,  6  L.  ed.  521. 

i4Post,  §§  35,  3G.  iR.  S.  S§  1130,  1674. 

isSee  post,  §§  35,  36.  2The  Anne,  3  Wheat.  445,  4  L.  ed. 

leSee   Bors   v.   Preston,   111    U.    S.  428;    Gittings  v.  Crawford,  Tanev   1, 

261,  28  L.  ed.  419,  4   Sup.   Ct.  Rep.  Fed.  Cas.  No.  5,465. 
407.  sBors   v.   Preston,    111    U.   S.   256, 

iTDavis  V.  Packard,  7   Pet.  270,  8  257,   28  L.   ed.  419,  4   Sup.   Ct.   Rep. 

L.  ed.  684.    See  76  Am.  Dec.  668  note.  407;  U.  S.  v.  Ravara,  2  Dall.  297,  Fed. 

isPo.st,    §    801.     These    provisions  Cas.  No.  16,122. 
have  been  construed  in  United  States        4 See  post,   §  209,  R.   S.  §  563,  CI. 

v.  Benner,  Baldw.  234,  Fed.  Cas.  No.  17.      See,    also,    Lorway    v.    Lusada, 

14.568;  U.  S.  v.  Ortega,  4  Wash.  C.  C.  1  Low.  77,  Fed.  Cas.  No.  8517;   Bix- 

531,    Fed.    Cas.    No.    15,971;    United  by   v.   Janssen,   6   Blatchf.   315,   Fed. 

States  V.  Liddle,  2  Wash.  C.  C.  205,  Cas.  No.  1452;   In  re  Baiz,  135  U.  S. 

Fed.  Cas.  No.  15.598;  In  re  Baiz,  135  403,  34  L.  ed.  222,  10  Sup.   Ct.  Rep. 

U.  S.  421,  10  Sup.  Ct.  Rep.  854,  34  L.  854;   Davis  v.  Packard,  7  Pet.  276,  8 

€d.  222.  L.  ed.  684. 

10 


Procedure]  SCOPE  AND  EXTENT.  §   2    [k] 

this  jurisdiction  exclusive  of  the  State  courtss  but  tlie  revised  statutes  do 
not  make  the  jurisdiction  of  suits  against  consuls  exclusiA'e,  eo  nomine,'' 
Hence  if  the  case  is  one  in  which  the  Federal  jurisdiction  is  not  exclusive 
by  reason  of  the  subject-matter,  the  State  courts  may  take  jurisdiction. 
They  may  commit  a  consul  for  extradition  to  another  State.'^  Suits 
against  consuls  involving  merely  local  law,  and  not  presenting  diverse 
citizenship  or  any  Federal  question,  might  apparently  be  entertained  by 
a  State  court  without  any  right  of  removal,  or  of  review  on  error  to  the 
Federal  Supreme  Court  unless  some  Federal  right  arose  and  was  denied 
prior  to  final  judgment. s  This  could  not  have  been  done  under  the  original 
law. 9  It  would  seem  therefore  that  in  such  cases  Congress  has  failed  in 
the  performance  of  its  "imperative  duty"io  to  provide  a  Federal  tribunal 
either  of  original  or  appellate  cognizance,  for  "all  cases"  affecting  consuls 

[j]     Suits  by  foreign  consuls. 

These  are  cognizable  originally  in  the  Supreme  Court,ii  but  the  jurisdic- 
tion is  not  exclusive.  A  consul  is  apparently  free,  therefore,  to  sue  in  the 
Supreme  Court  in  any  case;  or  to  proceed  in  the  inferior  Federal  court 
if  it  has  jurisdiction  of  the  subject-matter  involved;  or  in  the  State  courts, 
where  the  mutter  is  not  of  exclusive  Federal  cognizance.i2  Cases  are  fre- 
quent in  which  consuls  have  proceeded  in  the  district  court  under  the 
admiralty  jurisdiction  in  prize  cases  or  for  the  protection  of  foreign  sea- 
men.! ^ 

[kj     The  admiralty  and  maritime  jurisdiction — tort  cases. 

Admiralty  cases  were  included  in  the  grant  of  Federal  jurisdiction  be- 
cause as  the  seas  are  the  joint  property  of  nations,  the  jurisdiction  is 
necessarily  national. i  It  is  closely  connected,  with  the  grant  of  Federal 
power  over  commerce. 2  The  principal  subjects  of  admiralty  jurisdiction 
are  maritime  contracts  and  torts. 3  But  salvage,  jettison  and  general 
average  which  are  neither  contract  nor  tort,  are  also  included.'*  The  word 
"maritime"  was  used  to  guard  against  a  narrow  interpretation  of  the  word 
"admiralty."^      Admiralty   and   maritime   jurisdiction   includes   jurisdiction 

5Act    of    1789,    c.    20,    §    9.      And  isThe    Bollo    Corrunes,  6    Wheat. 

see     Mannliardt     v.     Soderstrom,     1  168,    5    L.    ed.    229;    Robson    v.    The 

Binn.  138;  Commonwealth  v.  Kosloff,  ITuntiess,  2   Wall.   Jr.   59,  Fed.   Cas. 

5  Serg.  &  R.  545.  No.    11,971;    The   London    Packet,    1 

6See  post,   §   15  note   [a].  Mason  14,  Fed.  Cas.  No.  8474. 

Tin  re  lasigi,  79  Fed.  754.  iChisholm   v.   Georgia   2  Dall.   475, 

8 Wilcox  V.  Luco,   118  Cal.  642,  62  1  L.  ed.  440. 

Am.  St.  Rep.  306,  50  Pac.  759,  45  L.  2New  Jersev  etc.  Co.  v.  Merchants' 

R.  A.  582;   De  Give  v.  Grand  Rapids  Bk.  0  How.  392,  12  L.  ed.  465. 

etc.  Co.  94  Ga.  605,  21  S.  E.  582.  sThe  Belfast,  7    Wall.    037,    19    L. 

9Davis   v.    Packard,   7    Pet.   270,    8  ed.  266. 

L.  ed.  684;  Valarino  v.  Thompson,  7  -iThe  Eagle,  8  Wall.  23,  19  L.  ed. 

N.  Y.  576.  365. 

lOMartin  v.  Hunter,  1  Wlieat.  328,  spretz  v.  Bull,  12  How.  466,  13  L. 

33(1,  4  L.  ed.  203,  104;  supra  note  [b].  ed.  1008;  The  Hine  v.  Trevor,  4  Wall. 

iiR.  S.  §  687,  post,  §  36.  555,   561,   18   L.   ed.   463;    The   Moses 

i2Ragory  v.  Wissman,  2  Ben.  240,  Taylor,  4  Wall.  411,  18  L.  ed.  397. 
Fed.  Cas.  "No.  12,217. 

11 


§  2    [k]  FEDEKaL   jurisdiction    in    general.  [Code  Fed. 

of  all  things  done  upon  and  relating  to  the  sea,  or,  in  other  words,  all 
transactions  and  proceedings  relative  to  commerce  and  navigation,  and  to 
damages  or  injuries  upon  the  sea. 6  The  question  whether  a  matter  is  of 
admiralty  cognizance  is  determined  by  the  locality  where  an  act  occurred 
in  cases  of  tort,'?  as  also  in  cases  of  prize,  jettison,  and  salvage;  in  cases 
of  contract  it  is  determined  by  the  subject-matter. s  It  has  several  times 
been  declared  that  the  limits  of  the  admiralty  jurisdiction  conferred  by 
the  Constitution,  are  to  be  defined  and  declared  by  the  courts  and  that 
neither  Congress  nor  the  States  have  any  power  to  enlarge  or  restrict  them. 
In  other  words  the  question  whether  a  given  matter  is  of  admiralty  cog- 
nizance is  exclusively  judicial. 9  This  is  not  equivalent  to  saying  that  the 
question  whether  a  matter  is  cognizable  in  the  Federal  court  as  a  court  of 
admiralty  is  exclusively  judicial.  The  inferior  Federal  courts  derive  their 
admiralty  10  and  all  other  jurisdiction,  from  Congress  which  might,  con- 
ceivably, omit  to  give  them  jurisdiction  of  matters  essentially  maritime, n 
and  conversely,  extend  their  jurisdiction  to  matters  essentially  maritime 
within  judicial  dollnitions,  not  previoiisly  made  justiciable  before  them. 
Moreover  Congress  has  undoubted  power  to  regulate  admiralty  practice;  12 
and  to  change  the  substantive  rules  of  admiralty  law  applied  in  the  Fed- 
oral  courts. 13  Indeed  the  States  also  have  power  to  create  rights  such  as 
a  lien  for  supplies  in  a  vessel's  home  port,  which  being  essentially  mari- 
time in  nature  will  be  recognized  and  enforced  in  admiralty,  n 

With  regard  to  place  or  locality  as  the  test  of  admiralty  jurisdiction, 
it  is  settled  that  in  addition  to  the  seas  and  waters  where  the  tide  ebbs 
and  flows,  within  the  United  States  and  waters  within  a  foreign  coxintry,i5 
the  admiralty  jurisdiction  of  the  Federal  courts  extends  to  all  public 
navigable  lakes  and  rivers  of  the  United  States. H"  It  makes  no  difference 
that   the   tide   does   not    ebb   and    flow, it    although    the   early    cases    made 

6De  Lovio  v.  Boit,  2  Gall.  398,  Fed.        i^See  post,   §    11    [b]. 
Cas.  No.  3776,  per  Story  S.  isThe  Eagle,  8  Wall.  21,  19  L.  ed. 

^Philadelphia   etc.    R.    R.    v.    Tow-  305;    Panama    R.    R.    v.    Napier    etc. 

boat  Co.  23  How.  215  IG  L.  ed.  433;  Co.  IGG  U.  S.  285,  41  L.  ed.  1004,  17 

The  Plvmouth,  3  Wall.  33,  18  L.  ed.  Sup.  Ct.  Rep.  572. 

125;    Warino;  v.  Clarke,  5  How.  452,        leThe   Genesee   Chief  v.   Fitzhugh, 

12  L.  ed.  226.  12  How.  443,   13  L.  ed.   1058;   Fretz 

8Ex  parte  Easton,  95  U.  S.  72,  24  v.  Bull,  12  How.  466,  13  L.  ed.  1068; 

L  ed.  373.     See  infra  note  [kk].  .Jackson   v.   The   Magnolia,   20   How. 

9 The  Lotta wanna,  21  Wall.  570,  22  296,  15  L.  ed.  909;  Nelson  v.  Leland, 
L.  ed.  654;  Butler  v.  Boston  S.  S.  22  How.  48,  16  L.  ed.  269;  The  Pro- 
Co.  130  U.  S.  557,  32  L.  ed.  1017,  9  peller  Commerce,  1  Black,  574,  17  L. 
Sup  Ct.  Rep.  612.  ed.  107;  The  Hive  v.  Tievor,  4  Wall. 

lOUnited     States     v.     Bevans,     3  555.    IS   L.    ed.    451;    The   Belfast.   7 

Wheat.  337,  4  L.  ed.  404;  Jackson  v.  Wall.  624,  19  L.  ed.  266;  The  Eagle. 

Magnolia,  20  How.  296,  15  L.  ed.  909;  8  Wall.  15,  19  L.  ed.  305;  The  Daniel 

Carpenter  v.  Emma  Johnson,  1   Cliff  Ball,    10    Wall.    557,    19   L.    ed.   999; 

633,  Fed.  Cas.  No.  2430.  The  IMontello.  20  Wall.  430.  22  L.  ed. 

iiThis  would  of  course  be  in  viola-  391;   Ex  parte  Boyer,  109  U.  S.  629. 

tion  of  the  imperative  duty  imposed  3  Sup.  Ct.  Rep.  434,  27  L.  ed.  1056; 

on  Congress.     See  supra  note   [b].  In  re   Garnett,   141   U.   S.    15.   35  L. 

i2The  Genesee   Chief  v.   Fitzhugh,  od.  631,   11   Sup.  Ct.  Rep.  843. 
12  How.  443,  13  L.  ed.  1058.  iTThe   Genesee   Chief   v.    Fitzhugh, 

isSee  po.st,   §   11    [a].  12   How.   454,    13   L.   ed.    1058;    The 

13 


Procedure] 


SCOPE   AND   EXTENT. 


§    2    [k] 


that  the  test  of  jurisdiction.!  ^  It  is  equally  immaterial  that  the  lake  or 
stream  is  wholly  within  a  Stateis  or  within  the  body  of  a  county.20  The 
jurisdiction  does  not  depend  upon  the  fact  that  the  commerce  in  which  the 
vessel  is  involved  or  which  is  otherwise  affected  is  interstate  or  foreign 
commerce. 1  If  the  voyage  or  contract  is  merely  between  places  in  the 
same  State  or  the  vessel  exclusively  engaged  in  commerce  within  a  State, 
it  is  within  Federal  admiralty  jurisdiction  so  far  as  locality  determines 
that  jurisdiction. 2  The  act  of  1845  extending  admiralty  jurisdiction  to 
the  great  lakes  was  therefore  merely  declaratory  and  inoperative  as  u 
grant  of  jurisdiction. s  Temporary  interruption  by  low  water  does  not 
destroy  the  character  of  water  as  navigable.*  The  fact  that  a  canal  is 
entirely  artificial,  created  and  owned  by  a  State,  does  not  make  it  any  the 
less  public  navigable  water; 5  nor  does  the  fact  that  a  stream  is  made 
navigable  by  artificial  improvements. 6  But  under  a  law  as  to  license  01 
vessels  on  public  navigable  waters  of  the  United  States  a  river  is  not  such 
where  only  navigable  between  places  in  a  State  and  where  it  does  not 
in  connection  with  other  waters,  form  a  continued  highway  for  commerce 
with  other  States  or  foreign  countries." 

A  right  of  action  for  a  tort  committed  in  any  of  the  places  or  locali- 
ties above  declared  to  be  within  the  admiralty  jurisdiction,  is  therefore 
cognizable  in  the  Federal  court  in  admiralty.^  But  if  the  substance  and 
consummation  of  the  wrong  be  upon  the  land  or  to  something  upon  or 
affixed  to  the  land,  the  tort  is  not  maritime  though  the  instrumentality  of 
the  injury  is  of  a  maritime  character. 9  No  maritime  tort  is  committed 
where    buildings,    bridges,    wharves    or    property    thereon,    are    injured    by 


Hine  v.  Trevor,  4  Wall.  505,  18  L.  ed. 
451. 

isThe  Thomas  Jeffer.son,  10 
Wheat.  429,  6  L.  ed.  358;  Peyroux 
V.  Howard,  7  Pet.  343,  8  L.  ed.  707; 
Waring  v.  Clarke,  5  How.  464,  12  L. 
ed.  220. 

i9The  Belfast,  7  Wall.  040,  19  L. 
ed.  260. 

20  Jackson  v.  The  ^Magnolia,  20 
How.  301,  15  L.  ed.  909;  The  Pro- 
peller Commerce,  1 'Black.  580,  17  L. 
ed.  107;  Leathers  v.  Blessing,  105  U. 
S.  630,  26  L.  ed.   1192. 

iln  re  Garnett,  141  U.  S.  18,  35 
L.  ed.  631,  11  Sup.  Ct.  Rep.  840;  The 
Mary  Washington.  1  Abb.  0.  Fed. 
Cas.'Xo.  9229;  The  Barge  Leonard,  3 
Ben.  260,  Fed.  Cas.  No.  8.250;  The 
Sarah  Jane,  1  Low.  205,  Fed.  Cas. 
No.  12,349.  See  U.  S.  v.  ^^'ishkah 
B.  Co.  ]  30  Fed.  42,  08  C.  C.  A.  592. 

2The  Belfast,  7  Wall.  624,  19  L. 
ed.  266;  The  Montello.  20  Wall.  4.30, 
22  L.  ed.  .391 ;  Ex  parte  Bover.  109  U. 
S.  629.  27  L.  ed.  1056.  3  Sup.  Gt.  Rep. 
434;  In  re  Garnett,  141  U.  S.  18,  35 
li,  ed.  631,  11  Sup.  Ct.  Rep.  843.   See 


Nelson  v.  Leland,  22  How.  56,  10  L 
ed.  269;  Bondies  v.  Sherwood,  22 
How.  217,  16  L.  ed.  238. 

3,Jackson  v.  The  Maunolia,  20  How. 
301,  15  L.  ed.  909;  The" Eagle,  8  Wall. 
25,  19  L.  ed.  365. 

4 Nelson  v.  Leland,  22  How.  56.  16 
L.  ed.  269. 

5Ex  parte  Bover,  109  U.  S.  629.  27 
L.  ed.  1056,  3  Sup.  Ct.  Rep.  434;  The 
McChesney,  8  Ben.  157,  Fed.  Cas.  No. 
4463;  Maionev  v.  INIihvaukee,  1  Fed. 
613;  The  Oler,  2  Hughes  15,  Fed. 
Cas.  No.  10,485. 

6The  Montello,  20  Wall.  430.  22 
L.  ed.  391. 

■?The  Montello,  11  Wall.  411,  20  L. 
ed.  191. 

sFretz  v.  Bull,  12  How.  468,  13  L. 
1068;  The  Eagle.  8  Wall.  21,  19  L. 
ed.  365;  The  Propeller  Commerce,  1 
Black.  580.  17  L.  107. 

9The  Plymouth,  3  Wall.  33,  18  L. 
ed.  125;  Johnson  v.  Chicago  Elev.  Co. 
119  U.  S.  .397.  30  L.  ed.  447,  7  Sup. 
Ct.  254;  The  Ottawa.  Brown's  Adm. 
3.57,   Fed.    Cas.   No.    10,610. 


13 


;;    L'    lUkJ  KKDIOKAI.  .1 IKISJUCTION    IX   (IK.NKUAL.  I  Code   Fed. 

fire  from  a  vessel, lo  or  by  its  collision  therewith. n  Nor  where  persons 
are  injured  on  shore  by  negligence  on  board  ship.12  But  admiralty  has 
jurisdiction  of  a  suit  for  injury  to  a  vessel,  by  wharves  or  a  drawbridge,  or 
sunken  obstructions; is  or  of  a  suit  for  injury  to  a  floating  dock.i-*  So 
also  it  has  jurisdiction  where  a  person  is  injured  aboard  ship  by  negligence 
of  persons  loading  from  a  wharf; is  or  injured  while  leaving  a  vessel, 
if  the  act  is  incomplete,  or  by  falling  therefrom.ie 

[kkj  —  maritime  contracts — prize. 

As  respects  contracts  the  admiralty  jurisdiction  extends  to  all  such  as 
are  of  a  maritime  character.  1  In  determining  this  question  our  courts 
have  virtually  laid  out  of  view  the  restricted  and  illiberal  conceptions  of 
the  matter  forced  upon  the  admiralty  courts  of  England  by  the  common 
law  tribunals,2  and  have  proceeded  upon  enlarged  views  of  the  jurisdic- 
tion which  admiralty  should  rationally  and  properly  exercise.  The  mari- 
time character  of  a  contract  is  determined  by  considering  its  nature  and 
subject-matter.3  It  is  obviously  proper  that  all  contracts  which  require  or 
may  require  for  their  interpretation  and  construction,  a  knowledge  of  the 
peculiar  principles  of  the  law  maritime,  or  the  peculiar  usages  or  imple- 
ments of  the  sea,  should  be  deemed  of  a  maritime  nature;  and  that  is  per- 
haps the  ultimate  test  to  be  applied  in  deciding  whether  a  contract  is  in 
fact  maritime. 

All  contracts  which  are  made  to  be  performed  in  places  Avithin  the  ad- 
miralty jurisdiction  are  maritime.^  Thus,  contracts  of  affreightment  and 
for  transportation  of  freight  or  passengers,5  when  to  be  performed  in  places 

lOThe  Plymouth,  3  Wall.  36,  18  L.        i^Simpson    v.    The   Ceres,    22    Fed. 

ed.    125;    Ex    parte    Phenix    Ins.    Co.  Cas.  173. 

118  U.  S.  616,  30  L.  ed.  274.  7   Sup.        isHermann    v.    Port    Blakely    Co. 

Ct.  Rep.  25;  Goodrich  Co.  v.  Gagnon,  69  Fed.  G47. 
36  Fed.   124.  iSThe    Strabo,    90    Fed.    110;    The 

ii.Iohnson  v.  Chicago  Elev.  Co.  119  Manhassett,  19  Fed.  435. 
U.  S.  397,  7  Sup.  Ct.  Rep.  254,  30  L.        iSteamboat  Orleans  v.  Phoebus,  11 

ed.  447;    The  Neil  Cochran.  Brown's  Pet.  183,  9  L.  ed.  677;    The  Thomas 

Adm.  164,  Fed.  Cas.  No.  7.99G;   Mil-  Jefferson,    10   Wheat.    429,    6   L.    ed. 

waukee  v.  The  Curtis,  37  Fed.  705.  3  358;    The   Belfast,    7    Wall.    637,    19 

L.R.A.  712;  The  John  C.  Sweenev.  55  L.   ed.  266. 

Fed.  542;  The  ArKansas,  17  Fed."  388,        2De  Lovio  v.  Boit,  2  Gall.  398.  Fed. 

5  McCrarv,  364;  The  JNIaud  Webster,  Cas.  No.  3776. 

8  Ben.  552,  Fed.  Cas.  No.  9.302;  sphiladelphia  etc.  R.  R.  v.  Tow- 
Homer  Ramsdell.  etc.  Co.  v.  Com-  boat  Co.  23  How.  215,  16  L.  ed. 
pagnie  Gen.  Trans.  63  Fed.  848.  433;    New  England  etc.  Co.  v.  Dun- 

12 The  Marv  Stewart,  5  Hughes  ham,  11  Wall.  26,  20  L.  ed.  90:  The 
313,  10  Fed.'  138;  The  Epsilon,  6  Gilbert  Knapp,  37  Fed.  210:  Wort- 
Ben.  381,  Fed.  Cas.  No.  4506;  The  H.  niann  v.  Griffith.  3  Blatchf.  528,  Fed. 
S.  Pickards,  42  Fed.  240;   The  Alary  Cas.  No.  18,057. 

Garrett,  63  Fed.   1011;    The  Belle  of        4 Waring  v.  Clarke,  5  How.  452,  12 

the   Coast,   66   Fed.   62.  L.  ed.  226. 

isBoston  V.   Crowlev,  33  Fed.  204,        sMarshall   v.   Bazin,   7   N.  Y.  Leg. 

Etheridge    v.    Philadelphia,    26    Fed.  Obs.    342,   Fed.   Cas.    No.   9,125;    The 

43;  Leonard  v.  Decker,  22  Fed.  742;  Aberfoyle,    1    Abb.    Adm.    242,    Fed. 

Panama  R.  R.  v.  Napier  etc.  Co.  168  Cas.  No.   16;    IMorewood  v.  Enequist, 

U.    S.   285,   41    L.   ed.    1004,    17    Sup.  23  How.  493.  16  L.  516;   The  Moses 

Ct.  Rep.  572.  Taylor,  4  Wall.  427,  18  L.  ed.  397; 

14 


ProcpJure] 


SCOPE   AND   EXTENT. 


§   2    [kk] 


within  inaritinie  jurisdiction,  contracts  for  pilotage  or  navigation  of  a  ves- 
sels for  seamen's  wages j"  for  wharfages  and  towage;  9  for  docking  a  ves- 
sel,! o  for  consortship,  or  assistance,!  i  are  all  maritime  contracts  enforce- 
able in  admiralty.  It  is  not  necessary  that  the  entire  performance  be  in 
places  within  the  admiralty  jurisdiction  so  long  as  a  substantial  portion 
is.!  2  Other  contracts  which  may  fairly  be  deemed  performable  in  places 
within  admiralty  jurisdiction  and  which  are  therefore  cognizable  in  ad- 
miralty are,  a  contract  to  furnish  cargo  space  for  a  foreign  cotton  ship- 
ment,! *  a  stevedore's  contract,!  4  a  contract  to  remove  ballast,!  5  a  docking 
contract,! 6  and  a  contract  to  act  as  watchman  while  vessel  at  dock.!''  The 
services  rendered  by  a  shipkeeper,!8  cabin  boy,! 9  chambermaid,2o  steam- 
boat clerk,!  ships  carpenter,2  cook  or  steward,^  deckhand,*  engineer  and 
fireman,5  surgeon, 6  of  a  cooper  in  putting  cargo  in  order,'?  or  cargo  weigher 
and  inspector,8  have  all  been  deemed  maritime  and  cognizable  in  admiralty. 
But  place  of  performance  is  not  a  final  test  of  jurisdiction,  although  long 
made  so  in  England, 9  and  other  contracts  besides  those  performable  upon 


Sears  v.  Wills,  1  Black  112,  17  L.  ed. 
35;  The  Eddy,  5  Wall.  494,  18  L.  ed. 
48D;  New  Jersey  S.  Nav.  Co.  v.  Mer- 
chants' Bank,  6  How.  385,  12  L.  ed. 
4i65;  The  Hammonia,  10  Ben.  514, 
Fed.  Cas.  No.  6,006;  The  Priscilla, 
106  Fed.  739';  The  Richard  Winslow, 
71  Fed.  428,  18  C.  C.  A.  344. 

6Hobart  v.  Drogan.  10  Pet.  120,  9 
L.  ed.  303;  Ex  parte  JNIcNeil,  13  Wall. 
243,  20  L.  ed.  624;  Ex  parte  Hagar, 
104  U.  S.  521,  26  L.  ed.  816;  The 
Laurel,  113  Fed.  373;  Ex  parte  Loud, 
154  U.  S.  582,  20  L.  ed.  627,  14  Sup. 
Ct.  Rep.  1204. 

■?Sheppard  v.  Taylor,  5  Pet.  711,  8 
L.  ed.  269;  The  Thomas  Jefferson,  10 
Wheat.  429,  6  L.  ed.  358;  Leon  v. 
Galceran,  11  Wall.  188,  20  L.  ed.  74. 

8The  Falls  of  Ivpltie,  114  Fed.  357; 
Ex  parte  Easton,  95  U.  S.  68,  24  L. 
ed.  373;  Braisted  v.  Denton,  115  Fed. 
428;  The  Kate  Tremaine,  5  Ben.  69, 
Fid.   Cas.  No.   7,622. 

9The  Oscoda,  66  Fed.  347. 

!OThe  Vidal  Sala,  12  Fed.  207. 

iiAndrews  v.  Wall,  3  How.  571, 
11  L.  ed.  729;  Boutin  v.  Rudd,  82 
Fed.  686,  27  C.  C.  A.  526. 

!2New  Jersev  etc.  Co.  v.  ]\ler- 
chants'  Bk.  6  How.  392,  12  L.  465; 
The  Thomas  Jefferson,  10  Wheat. 
429,  6  L.  ed.  358;  The  Willamette 
Valley,  71  Fed.  714;  Phenix  Ins.  Co. 
V.  Erie  etc.  Co.  10  Biss.  18.  Fed. 
Cas.  No.  11,112;  Domenico  v.  Alaska 
P.  A.  112  Fed.  554.  See  Pacific  C.  S. 
S.  Co.  V.  Fergu.son.  70  Fed.  996,  22 
C   C.  A.  671. 


!3Baltimore  S.  P.  Co.  v.  Patterson. 
106  Fed.  736,  45  C.  C.  A.  575. 

i^The  Gilbert  Knapp,  37  Fed.  210; 
The  Canada,  7  Feb.  123,  7  Sawv.  173; 
The  Hattie  M.  Bain,  20  Fed.  390; 
Florez  v.  The  Scotia,  35  Fed.  917; 
The  :\Iain,  51  Fed.  956,  2  C.  C.  A. 
569  cuiit'-a;  The  Esteban,  31  Fed. 
924. 

!5RGberts  v.  The  Windemere,  2 
Fed.   .'25. 

!6The  Vidal  Sala,  12  Fed.  21 L 

!7The  Maggto  P.  32  Fed.  301.  But 
see  Gurney  v.  Crockett  Abb.  .^dm. 
493,   Fed.   Cas.   No.  5,874. 

!SThe  Geo.  T.  Kemp,  2  Low.  477, 
Fed.  Cas.  No.  5,341. 

!9Gurnev  v.  Crocket,  1  Abb.  Adni. 
490,  Fed.  Cas.  No.  5874. 

2  0The  Farmer,  Gilp.  524,  Fed.  Cas. 
No.  13,852. 

!The  Sultana,  1  Browns  Adm.  13, 
Fed.  Cas.  No.  13,602. 

2The  Farmer,  Gilp.  524,  Fed.  Cas. 
No.  13.852. 

3The  Pekin,  Gilp.  203,  Fed.  Cas. 
No.  13,090. 

4The  Ohio,  Gilp.  505,  Fed.  Cas. 
No.   17,825. 

5 The  Ohio,  Gilp.  505,  Fed.  Cas.  No. 
17,825. 

sGurney  v.  Crockett.  1  Abb.  Adm. 
490,   Fed.  Cas.  No.  5.874. 

7The  Onore,  6  Ben.  564,  Fed.  Cas. 
No.  10,538. 

sThe  River  Queen.  2  Fed.  731. 

9See  De  Lovis  v.  Boit,  2  Gall.  398, 
Fed.  Cas.  No.  3,770;  Insiirance  Co.  v. 
Dunham,  11  Wall.  1,  20  L.  ed.  98. 

15 


§   2    [kk]  FEDEKAL  JURISDICTION    IN   GENERAL.  [Code   FclI. 

navigable  waters  may  be  maritime.  It  is  the  peculiar  and  exclusive  func- 
tion of  courts  of  admiralty  to  enforce  all  rights  in  rem  that  may  exi.st 
against  vessels  afloat. lo  Hence  all  contracts  which  give  rise  to  liens 
or  rights  in  rem  are  of  admiralty  cognizance.  Thus  contracts  for  sup- 
plies and  repairs,ii  wharfage  contracts,i2  towage  contracts,i3  and  all 
others  creating  maritime  liens  are  necessarily  of  admiralty  cognizance 
Salvage,! 4  jettison  and  general  averagers  although  matters  of  cjiiasi 
contract  only,  also  create  rights  in  rem  enforceable  only  in  admiralty, 
besides  being  distinctively  martime  in  character.  There  are  yet  other 
ct)ntracts  deemed  maritime,  neither  made  nor  performable  upon  navigable 
waters,  nor  giving  rise  to  rights  in  rem,  which  are  nevertheless  so 
concerned  with  martime  matters  and  risks  that  a  court  construing  or 
enforcing  them  may  be  called  upon  to  determine  any  and  all  the  que^^- 
tions  that  can  arise  in  maritime  commerce,  such  as  jettison,  abandon- 
ment, average,  salvage,  capture,  prize,  bottomry,  etc.i^  It  is  appropri- 
ate that  admiralty  should  have  jurisdiction  over  them.  Among  coiitnicts 
of  this  type  may  be  mentioned  bottomry  and  respondentia,!  s  i,iarine 
insurance,!  9  and  charter  parties. 20  Both  the  owner!  and  charterer2  may 
sue  on  charter  parties.  They  sometimes  contain  or  are  accompanied  by 
other  contracts,  such  as  one  giving  the  charterer  an  agency  for  general 
average,3  or  a  bond  for  performance, *  which  are  also  maritime.  A  stipula- 
tion in  a  charter  party  has  been  enforced  in  admii-alty  though  not  of  itself 
maritime. 5 

But  an  agreement  which  creates  a  sort  of  jjartnership  and  not  a  char- 
ter party,  is  not  of  admiralty  cognizance,6  nor  has  admiralty  any  juris 

!OSee  post,  §  15   [e].  callv    overruled.      See    Bk.    4    U.    S. 

!!The    General    Smith,    4    Wheat.  Notes   741,   742. 

443,    4    L.    ed.    609;    The    Aurora,    1  i'? Insurance     Co.     v.     Dunham.     11 

Wheat.    105,   4  L.   ed.   45;    Cutler   v.  Wall.  1,  20  L.  ed.  99. 

Rae,   7    How.    731,    12   L.    890;    Law-  isBlaine    v.    The    Chas.    Carter,    4 

rence  v.  Alorrisina  S.  B.  Co.  9  Fed.  Cranch  332,  2  L.  ed.  636. 

208.  !9Insurance    Co.     v.     Dunham,     11 

!2Ex  parte  Easton,  95  U.  S.  68,  24  Wall.    1.  20   L.   ed.   99;    De   Lovio   v. 

L.  ed.  373.  Boit,  2  Gall.  398,  Fed.  Cas.  No.  3776. 

!3The  Oscoda,  66  Fed.  347.  2o:Morewood    v.    J:ingiiist,    23    How. 

!5The  Williams,  1  Brown  215,  Fed.  493,    16   L.  ed.  516;   Maury  v.   Culli- 

Cas.    No.    17.710;     The    Roanoke,    50  fora,  4  Woods,  123,  10  Fed.  391;  The 

Fed.   577;    The  John  Gilpin,  01c.   82,  City  of  Carlisle,  39  Fed.  814,  5  L.R.A. 

Fed.  Cas.  No.  7345.  59;'  The  Alberto.  24  Fed.   381. 

!6    Coast    wrecking   Co.    v.    Phenix  3 Ward  v.  Thompson  Newb.  95  Fed. 

Ins.  Co.  7  Fed.  242;  San  Fernando  v.  Cas.  No.  17,162. 

Jackson,   12   Fed.   341;    National   Bd.  2The    Tribune,    3    Sum.    144.    Fed. 

V.   Melchers.    45   Fed.    646;    Wellman  Cas.  No.  14,171. 

V.   Morse,   76   Fed.   576,   22   C.   C.   A,  3The  Ripon  City,  102  Fed.  17(>,  42 

318;   Dike  v.  The  Joseph,  0  McLean,  C.  C.  A.  247. 

574,   Fed.   Cas.   No.   3908.     After   the  ^Haller  v.  Fox,  51  Fed.  299. 

goods  are  delivered  to  consignee,  libel  sKeyser    v.    S.    S.    S.    Co.    91    Fed. 

for  contribution   on   general   average  271.  33  C.  C.  A.  496. 

has     been     held     not     maintainable:  6 Ward  v.  Thompson,  22  How.  333, 

Cutler  V.  Rae,  7  How.  731,  12  L.  ed.  16  L.   ed.   249;    Vandewater  t.  Mills, 

S90.     This   case   is,   however,   practi-  19  How.  90,  15  L.  ed.  554. 

15 


Procedure] 


SCOPE  AND  EXTENT. 


§   2    [kk] 


diction  over  matters  of  account  between  part  owners."  The  premium  on  a 
marine  insurance  policy  is  recoverable  in  admiralty,^  although  no  lien 
exists  therefor.9  While  bottomry  and  respondentia  are  maritime  hypothe- 
cations, enforceable  in  admiralty  an  ordinary  mortgage  of  a  vessel  is  not.io 
Not  only  are  all  vessels  subjects  of  admiralty  cognizance,  but  floating 
boat  houses,!  1  barges,i2  dredges,i3  and  canal  boats,i4  may  become  sub- 
ject to  the  assertion  of  maritin.e  claims.  Petitory  actions  to  recover  vessel 
or  cargo  are  maintainable  in  admiralty, is  though  a  merely  equitable 
title  will  not  sustain  such  an  action. 1 6 

Without  attempting  to  discuss  exhaustively,  contracts  held  not  mari- 
time, it  is  settled  that  a  contract  to  build  a  vessel  is  not  maritime;!'? 
and  a  lien  given  by  State  law  thereon  is  not  enforceable  in  admiralty. is 
A  broker's  contract  for  customary  services,!  9  or  for  commissions  in 
obtaining  a  charter, 20  or  for  buying  vessel, 1  or  for  obtaining  a  guano  con- 
cession,2  is  not  maritime.  A  contract  for  storage  at  the  end  of  a  voyage 
is  not  maritime; 3  nor  for  preparing  a  cargo ;■!  nor  one  for  compressing  cot- 
ton for  shipment ;  5  nor  one  for  furnishing  all  supplies  at  a  certain  place 
for  one  year;  6  nor  for  furnishing  coal  to  a  dredge  pumping  mud  and 
water. ■^  Admiralty  does  not  recognize  merely  equitable  rights  or  titles  noi 
will  it  enforce  a  trust.^  Agreements  merely  preliminary  to  a  maritime  con- 


"Steamboat  Orleans  v.  Phoebus,  11  1  "Peoples  F.  Co.  v.  Beers,  20  How. 

Pet.  182,  9  L.  ed.  677;   Grant  v.  Pol-  401.  15  L.  ed.  961;  Roach  v.  Chapman, 

Ion,    20    How.    169,    15    L    .ed.    871;  22   How.    132,    16    L.   ed.   294;    More- 

Kellum  V.  Emerson,  2  Curtis,  83,  Fed.  wood   v.    Enequist.   23   How.   494,    16 

Cas.  No.  7669.  L.    ed.   516;    Edwards   v.   Elliott,     21 

SThe  Dolphin,  1  Flip.  581 ,  Fed.  Cas.  Wall.   556,  22  L.  ea.  487 ;   Norton  v. 

No.  3,973;  The  Guiding  Star,  9  Fed.  Switzer,  93  U.  S.  366,  23  L.  ed.  903. 

524.  isPeoples  F.  Co.  v.  Beers,  20  How. 

9In  re  Insurance  Co.   22   Fed.   115.  401,  15  L.  ed.  9f)l ;  The  Count  De  Les- 

lOBogart  v.  The  John  Jay,  17  How.  sep.  17  Fed.  461. 

402,  15  L.  ed.  95;  Schuehardt  v.  Bab-  isThe  Humbolt,  86  Fed.  351 

bidge,    19   How.   240,    15   L.    ed.    625;  2  0Brown  v.  West,  112  Fed.  1018,  50 

The  J.  E.  Rumbell,  148  U.  S.  15,  37  L.  C.   C.   A.   664;    Taylor   v.   Weir,    110 

ed.   345,    13   Sup.    Ct.    Rep.   498;    The  Fed.    1005. 

Sailor  Prince,  1  Ben.  468.  Fed.  Cas.  iDoolittle  v.  Knobelock,  39  Fed.  40. 


No.   12,219. 

11  Woodruff  V.  Scow,  30  Fed.  270. 

i2The  City  of  Pittsburgh,  45  Fed. 
700;  The  Dick  Keyes,  1  Biss.  608 
Fed.  Cas.  No.  3898. 

i3McRae  v.  Bowers,  etc.  Co.,  86 
Fed.  348. 

i4Ex  parte  Easton,  95  U.  S.  68, 
24   L.   ed.   373. 

isWard  v.  Peck,  18  How.  267,  15 
L.  ed.  383;  The  Friendship,  2  Curt, 
426,  Fed.  Cas.  No.  5123;  Wenbers  v. 
A  Cargo,  etc.,  15  Fed.  287;  The  Clar 


2Wenberg    v.    A    Cargo,    etc.,     15 
Fed.  288. 

3  The    Richard    Winslow,    71     Fed. 
428,  18  C.  C.  A.  344. 

4 Coyne    v.    The    Alex.    McNeil,    20 
Int.  Rev.  Rec.  Fed.  Cas.  No.  3312a. 
SThe  Pavla  R.  32  Fed.  175. 
eDiefenthal    v.    Hamburg,    etc.,    46 
Fed.  397. 

"In   re  Hydraulic  Dredge,   80   Fed. 
556,  25  C.  C.  A.  628. 

«Ward  V.  Thompson,  22  How.  330, 
issa  Ann,  2  Hughes,  89.  Fed.  Cas.  No.  16  L.  ed.  249;  Kellum  v.  Emerson,  2 
5826.  Curt.  79  Fed.  Cas.  No.  7669;  Davis  v. 

iBHill  V.  The  Amelia,  6  Ben  475,  Child,  2  Ware,  78,  87  Fed.  (as.  No. 
Fed.  Cas.  No.  6487;  Kynoch  v.  The  3,628;  The  William  D.  Rice.  3  Ware. 
Ives,  Newb.  205,  Fed.  Cas.  No.  7,958:  134,  Fed.  Cas.  No.  17,691;  Kvnoch  v. 
The  Perseverance,  1  Blatchf.  385,  The  S.  C.  Ives.  Newb.  205,  Fed.  Cas. 
Fed.  Cas.  No.   11017.  No.  7,958;  Andrews  v.  The  Essex.  ?,tc. 

Fed.  Proc. — 2.  17 


§   2   [1]  FEDERAL  JURISDICTION   IX  GENERAL.  [Code   Fed. 

tract  are  not  cognizable  in  admiralty.s  The  following  are  not  maritime 
contracts:  A  contract  to  furnish  blocks  to  save  a  wrecked  vessel; lo  a 
supercargo's  contract  to  sell  in  a  foreign  port;ii  a  warehouseman's  con 
tract  of  bailment;  12  a  contract  to  procure  parties  to  care  for  a  cargo; is 
a  contract  for  storage  of  grain  on  a  vessel  during  winter.i^  The  services 
rendered  by  a  drayman  taking  cargo  to  or  from  a  vessel,i5  by  a  day 
laborer  on  a  boat  or  dock, is  or  watchman  on  vessel  out  of  commission,! ■< 
or  by  a  captain's  body  servant, 18  or  by  musicians,i9  or  by  a  solicitor  of 
freight, 2  0  are  not  maritime  nor  cognizable  in  admiralty. 

Cases  of  prize  are  peculiarly  of  admiralty  cognizance,  i  The  common - 
law  courts  have  no  jurisdiction. 2  Prize  jurisdiction  is  vested  by  tlie  re- 
vised statutes  chiefly  in  the  district  court. 3 

[1]     Controversies  to  which  United  States  is  party. 

Congress  is  not  required  to  vest  the  judicial  power  in  "all"  cases  in 
which  United  States  is  party  and  to  do  so  would  be  to  waive  the  govern 
ment's  imnuuiity  from  suit. 5  The  ancient  doctrine  that  the  sovereign  is 
not  suable  without  its  consent,  applies  in  full  force  to  the  United  States.^ 
Congress  has  however  authorized  suits  against  the  government  upon  a 
great  variety  of  claims  and  in  some  other  cases,  and  vested  jurisdiction  in 
the  Court  of  Claims,  and  the  circuit  and  district  courts,  and  sometimes  in 
the  Supreme  Court."?  The  doctrine  of  the  Supreme  Court  as  to  its  original 
jurisdiction  over  suits  by  or  against  the  United  States,  seems  to  have  un- 
dergone substantial  changes  since  earlier  days.  At  the  time  of  the  decision 
in  Florida  v.  Georgia, 8  it  was  taken  for  granted  that  as  the  Supreme  Court 

3  Mason,  G  Fed.  Cas.  No.  374;  Wen-  L.   ed.   485;    Penhallow   v.    Doane,   3 

berg  V.  A  Cargo,  etc.,  15  Fed.  285.  Dall.  54.  1  L.  ed.  507;  The  Amiable 

9Andrews    v.    Eessex    Ins.    Co.    3  Nancy,  3  Wheat.  546,  4  L.   ed.  45(5; 

Mason    6.    Fed.    Cas.    No.    374;    The  Jecker  v.  Montgomery  13  How.  498. 

Tribune,   3   Sum.  144,  Fed.  Cas.-  No.  14  L.  ed.  240. 
14,171.  2Doane  v.  Penhallow,  1  Dall.  218, 

loTons  of  Iron.  2  Ben.  21.  Fed.  Cas.  1  L.  ed.  108;  Ross  v.  Rittenhouse,  2 

No.  13270.  Dall.  160,  1  L.  ed.  331. 

iiThe  Virginia,  2  Paine,  115,  Fed.        3See  post,  §§    15,  200. 
Cas.  No.  141.  5See   supra  note    [c]. 

i2The    Mary    Washington,    Chase,        sCohens  v.  Virginia,  6  ^Vheat.  411, 

125,  Fed.  Cas.  No.  9.229.  412,  5  L.  ed.  257;   U.  S.  v.  Ringgold. 

isThe   Gustavia,    1    Blatchf.     189,  8  Pet.  103,  8  L.  ed.  899;  Gary  v^Cur- 

Fed.  Cas.  No.  5876.  tis,  3  How.  245,  11  L.  ed.  576;   U.  S. 

14 The   Pulaski,   33   Fed.   383;    The  v.  King,  7  How.  854,  12  L.  ed.  934; 

Richard  Winslow,  71   Fed.  426,  18  C.  DeGroot  v.  U.  S.  5  Wall.  431,  18  L. 

C.  A.   344.  ed.  700;  The  Siren,  7  Wall.  154,  19  L. 

iBThe    Harriet,    Olcott,    229,    Fed.  ed.  129;   Haycraft  v.  U.  S.  22  Wall. 

Cas.  No.  6.097.  98.  22  L.  ed.'  738 ;  U.  S.  v.  Thompson, 

isGraham    v.    Hoskins,    Olcott    244  98  U.  S.  489,  25  L.  ed.  194;    Minne- 

Fed.  Cas.  No.  5669.  sota  v.  Hitchcock.  185  U.  S.  386,  46 

I'The  Sirius,  65  Fed.  226.  I,    ed.   954,  22  Sup.  Ct.   650;    Oreaon 

isThe  Farmer,  Gilp.  524,  Fed.  Cas.  v.  Hitchcock,  202  U.  S.  60,  50  L.^ed 

No.   13852.  935,  26  Sup.   Ct.  Rep.  568. 

i9The  Superior,  Gilp.  514,  Fed.  Cas.         TSee   post   §§    139.   22   et   s^q..   See 

No.  14136.  Minnesota    v."   Hitchcock,    185    U.    S. 

20The  Pavla  R.  32  Fed.   174.  386,  46  L.  ed.  954,  22  Sup.  Ct.  650. 

iGlass  V.  The  Betsey,  3  Dall.  6.  1         sij  How.  478,  15  L.  ed.   181. 

18 


Procedure]  SCOPE   AND  EXTENT.  §   2    [IJ 

was  not  given  original  jurisdiction  of  cases  ivhere  tlie  United  States  is  a 
party,  under  the  doctrine  of  Marbury  v.  Madison,9  it  could  entertain 
jurisdiction  only  in  the  appellate  form;  that  as  the  judicial  power  was  not 
extended  in  terms  to  controversies  between  the  United  States  and  any 
State  or  States  of  the  union,  such  cases  were  not  justiciable;  and  that 
after  the  adoption  of  the  eleventh  amendment,!  o  the  only  cases  as  to  which 
the  States  had  waived  their  sovereign  immunity  from  suit  were  in  con- 
troversies between  States.  In  that  case  the  boundary  dispute  between 
Florida  and  Georgia  vitally  interested  the  Federal  government  because  its 
title  and  that  of  its  grantees  to  public  lands  in  northern  Florida  would 
be  destroyed  by  a  decree  in  accordance  with  the  contentions  of  the  state 
of  Georgia  and  believing  that  the  United  States  could  not  intervene  as  a 
party  of  record,  application  was  made  for  leave  to  be  heard  and  to  file  testi- 
mony in  the  case,  without  becoming  parties  of  record.  A  majority  of  the 
court  was  constrained  by  the  apparent  necessity  of  the  case  to  sanction 
this  anomalous  proceeding  although  combatted  by  the  dissenting  judges  as 
permitting  intervention  by  a  party  not  authorized  either  to  sue  one  of 
the  States  of  the  union  or  to  proceed  originally  in  the  Supreme  Court. 
Recent  cases  have  disregarded  these  principles  without  apparently  examin- 
ing the 'decision  in  Florida  v.  Georgia,  or  considering  its  reasoning.  In  one 
such  case  the  Supreme  Courts  original  jurisdiction  of  a  suit  by  the  United 
States  against  the  State  of  Texas  was  sustained; n  and  in  the  other 
and  later  case,  a  suit  by  a  State  against  the  Secretary  of  the  Interior  was 
upheld  because  in  effect  a  suit  against  the  United  States.12  Jn  other  words 
the  United  States  may  either  sue  or  be  sued  originally  in  the  Supreme 
Court  where  a  State  is  the  other  litigant  party.  Jurisdiction  over  actions 
brought  by  the  United  States  has  been  vested  in  the  circuit  and  district 
courts;  13  and  it  has  been  held  that  the  United  States  may  sue  in  the 
State  courts  and  often  does  so.i^  Aside  from  the  many  cases  where  the 
United  States  has  appeared  as  plaintiflF  in  actions  ex  contractu  against  its 
officers  it  has  sued  as  for  money  had  and  received,!  5  and  for  benefit  of  a 
surety ;!6   also  to  set  aside  land  patents,! 7  and  patents  for  inventions,! s 

SMarbury    v.    ]\Iadison,    1     Cranch  state  may  sue  the  United  States  in 

137,  2  L.  ed.  60  the  Court  of  Claims  does  not  violate 

!0Post    §   7.  the  principles  early  established  since 

iiUnited   States   v.   Texas.    14.3   U.  the    Supreme   Court's  original    juris- 

S.  621,  36  L.  ed.  285  12  Sup.  Ct.  488.  diction      is      not     exclusive.     United 

i2Minnesota   v.    Hitchcock,    185    U.  States    v    Louisiana,    123    U.    S.    37, 

S.  373.  46  L.  ed.  954,  22  Sup.  Ct.  650.  31   L.  ed.  GO.  8  Sup.  Ct.  Rep.  17. 
See   Oregon   -^.  Hitchcock,   202   U.   S.        !3Post.  §§    130,   196. 
60.  50  L.   ed.   935.  26  Sup.   Ct.  Rep.        i4Claflin    v.    Houseman,    93    U.    S. 

568.     These  holdings   are  not   easily  1.36.  23  L.  ed.  833.     See  United  Suites 

reconcilable  with  rules  of  interpreta-  v.  Pedmli.  Ill  Fed.  14. 
tion  applied  in  early  cases  to  the  con-        loUnited     States     v.     Grundy.     3 

stitutional   grant   of   judicial    power,  Cranch.  350,  2  L.  ed.  459. 
nor  witli  the  doctrine  that  the  sover-        !6]\[eredith    v.    I'nited    States,    13 

eign    immunity    of    the    Stotes    from  Pet.  496.  10  L.  ed.  258. 
suit  should  not  be  deemed  Avaived  by        ! "United  States  v.  San  Jacinto  Tin 

them  except  as  it  has  been  expressly  Co.  125  U.  S.  273,  31  L.  ed.  747,  8  Sup. 

waived     in     the     Federal      cor  ;titu-  Ct.  Rep.  850. 

tion.      A     further     holding    that     a        isUnited    States  v.   American   «tc. 

19 


§  2   [m]  FEDERAL   JTTrisDICTION    IX   (JENERAl-.  [Code  Fed. 

for  cancellation  of  other  instruments,! 9  and  to  enjoin  labor  leaders  from 
interfering  with  the  transportation  of  the  mails. 20  Nor  is  the  government 
restricted  to  eases  in  wliich  its  pecuniary  interests  are  involved.  It  is 
enough  that  the  wrongs  complained  of  afliect  the  public  at  large  in  respect 
to  a  matter  within  the  natiojial  powers  and  involving  the  national  duties.21 

[m]     What  are  suits  against  the  United  States. 

A  suit  in  which  the  United  States  were  made  parties  defendant  of  record 
would  doubtless  be  a  suit  against  the  United  States  just  as  it  has  similarly 
been  held  of  suits  against  a  State ;  1  and  a  suit  against  the  property  of 
the  United  States  is  similarly  inhibited  except  by  consent. 2  A  suit  against 
a  United  States  officer  where  the  United  States,  though  not  named,  is 
the  real  party  against  whom  the  relief  is  asked  and  the  judgment  will 
operate,  is  in  fact  a  suit  against  the  government;  although  the  doctrine 
of  U.  S.  v.  Lee, 3  and  of  several  cases  following  it  somewhat  modifies 
this  general  proposition.  Those  cases  have  sustained  actions  of  ejectment 
and  trespass  against  officers  in  possession  of  land  as  government  officers, 
and  under  claim  of  title  in  the  government.  The  gist  of  these  actions  is 
the  tort  of  the  individuals,  but  the  decision  turns  entirely  upon  the 
existence  of  valid  title  in  the  government  whose  rights  are  thus  indirectly 
litigated.  Another  line  of  cases  affirms  the  right  of  the  individual  to 
sue  even  high  executive  officers  of  the  government  to  compel  the  perform- 
ance of  ministerial  duties  or  to  restrain  a  violation  of  private  rights.* 

[nj     Cases  in  which  a  State  is  party. 

The  provision  applies  to  States  that  are  members  of  the  union,  and  to 
public  bodies  owing  obedience  and  conformity  to  its  Constitution  and  laws. 6 
To  constitute  a  state,  a  political  organization  must  be  a  State  in  con- 
templation of  the  Constitution.7  Indian  nations  are  not  States.s  The 
District  of  Columbia  is  not  a  State  within  the  term  as  here  used.?  A  Fed- 
eral corporation,  not  being  a  citizen  of  any  State  is  not  within  the  terms 

Tel.  Co.  128  U.  S.  315,  32  L.  ed.  450,  Ct.    Rep.    4LS;    Same    v.    Same,    102 

i)  Sup.  Ct.  Rep.  90.  U.  S.  255,  40  L.  ed.  900,  10  Sup.  Ct. 

isUnited  States  v.  Union  Pac.  Ry.  Rep.  7G0. 

160  U.  S.  50,  40  L.  ed.  319,  16  Sup.  ^Marbury    v.    Madison,    1    Cranch, 

Ct.  Rep.   190.  137,   2   L.   ed.   60;    United   States   v. 

20ln  re  Debs,  158  U.  S.  580.  39  L.  Commissioner,  5  Wall.  565,  18  L.  ed. 

ed.  1103,  15  Sup.  Ct.  Rep.  900.  692;     Kendall    v.   United  States,     12 

2iln  re  Debs,   158  U.  S.  580.  39  L.  Pet.  010,  9  L.  ed.  1181  ;  United  States 

ed.  1103,  15  Sup.  Ct.  Rep.   907.  v.  P>laine,  139  U.  S.  319,  35  L.  ed.  183, 

lOsborn  v.  Bank  of  United  States,  11  Sup.  Ct.  Rep.  607;  Carroll  v.  Saf- 

9  Wheat.  738.  6  L.  ed.  204.  ford,  3  How.  463,  11  L.  ed.  671. 

2Stanlev   v.    Schwalby,    162   U.    S.  GScott  v.  Jones,  5  How.  377,  12  L. 

270,  40  K  ed.  966,  T6  Sup.  Ct.  Rep.  ed.   198. 

760;    In    re    Avers,    123    U.    S.    443,  "Cherokee  Nation  v.  Georgia,  5  Pet. 

31    L.   ed.  216.  8   Sup.   Ct.  Rep.    164;  18,  8  L.  ed.  25.            * 

Minnesota  v.  Hitchcock.  185  U.  S.  373,  s-Cherokee  Nation  v.  Georgia,  5  Pet. 

46  L.  ed.  954.  22  Sup.  Ct.  Rep.  655.  16.  8  L.  ed.  31 ;    Snead  v.  Sellers,  66 

3 United   States   v.   Lee.    106   U.    S.  Fed.  371,  13  C.  C.  A.  518. 

196,   1   Sup.  Ct.   Rep.  240,  27   L.   ed.  sHepburn     v.     Ellzey,     2     Cranch, 

171:    and    see    Stanley    v.    Schwalbv,  453,  2  L.  ed.  332. 
147  U.  S.  508.  37  L.  ed.  259,  13  Sup. 

20 


Procedure]  SCOPE  AND  EXTENT.  §   2   lii] 

of  the  jurisdiction  here  granted. lo  The  fact  that  a  State  is  the  nominal 
party  plaintiff  in  suit  on  attachment  bond  does  not  oust  the  circuit  courf.s 
jurisdiction.il  While  the  constitution  extends  the  judicial  power  to  all 
cases  arising  under  the  constitution  and  laws,  a  suit  against  a  State  may 
not  be  held  justiciable  on  that  ground  unless  also  within  the  class  of  cases 
as  to  whicli  the  States  have  expressly  waived  their  nonsuability.12  Since 
the  11th  amendment  forbidding  suits  against  States  by  individuals,!  3 
the  judicial  power  extends  only  to  suits  against  them  by  other  States, 
domestic  or  foreign,  and  to  suits  by  them  against  other  States,  domestic 
or  foreign,  and  their  citizens  or  subjects.  In  all  cases  the  jurisdiction  is 
original  in  the  Supreme  Court.  A  State  cannot  there  sue  its  own  citi- 
zens,i4  and  if  they  be  necessary  parties  to  a  suit  otherwise  cognizable, 
the  jurisdiction  is  ousted.! 5  Suits  between  States  have  been  principally 
over  boundaries,  as  to  which  the  jurisdiction  is  well  settled,i6  though  re- 
cent cases  have  sometimes  been  instituted  in  an  attempt  to  protect  private 
rights,!'?  or  to  protect  the  public  health  against  sanitary  works  in  an- 
other State,!  8  or  to  restrain  the  diversion  of  the  waters  of  an  interstate 
river.  19  Federal  jurisdiction  is  not  extended  to  "all"  controversies  between 
States,  although  none  are  in  terms  excluded. 20  But  political  questions  and 
all  questions  which  on  the  settled  principles  of  public  law  are  not  cog- 
nizable in  courts  of  justice  are  not  justiciable  as  controversies  between 
States.!  The  controversy  must  be  one  directly  between  two  States  in- 
volving state  property,  or  powers,  and  not  an  attempt  to  protect  private 
contract  rights,  e.  g.,  by  assuming  the  prosecution  of  debts  owing  by  de- 

lOSmith  V.  RackliflFe,  87  Fed.  964,  26  Sup.  Ct.  Rep.  408,  571;  Virginia 
31  C.  C.  A.  328,  Affirmed,  Smith  v.  v.  Tennessee.  148  U.  S.  504,  37  L. 
Reeves,  178  U.  S.  436,  44  L.  ed.  1140,  ed.  537,  13  Sup.  Ct.  Rep.  728.  A 
20  Sup.  Ct.  Rep.  919.  controversy     over     boundary     exists 

1! State  of  Missouri  v.  Bowles  Mill  where  a  dispute  is  between  two  States 
Co.  80  Fed.   161.  as  to  the  enforcement  of  the  oyster 

!2Hans  V.  Louisiana,  134  U.  S.  14,    legislation  of  one  of  them  in  certain 
16-21,  33  L.  ed.  845,  849.  10  Sup.  Ct.   waters.     Louisiana  v  :\Iississippi,  202 
Rep.   507;    Smith  v.   Reeves,   178   U.    U.   S.   1,   58,   50  L.   ed.   913,  934,   26 
S.  436,  20  Sup.   Ct.  Rep.   923,  44  L.    Sup.   Ct.  Rop.  408.  571. 
ed.  1140.  iTLouisiana    v.    Texas,    176    U.    S. 

isPost,  §  7.  23,  44  L.  ed.  .356,  20  Sup.  Ct.  Rep.  251 ; 

!4Ca]ifornia  v.  Southern  Pac.  R.  R.  New  Hampshire  v.  Louisiana,  108  U. 
157  U.  S.  258,  39  L.  ed.  694,  15  Sup.  S.  76,  27  L.  ed.  056,  2  Sup.  Ct.  Rep. 
Ct.  Rep.  003;  Pennsylvania  v.  Quick-    170. 

silver  Co.  10  Wall.'  550.  19  L.  ed.  isMissouri  v.  Illinois,  180  U.  S.  241, 
998.  45  L.  ed.  512,  21  Sup.  Ct.  Rep.  331. 

isMinnesota  v.  Northern  Securities  !9Kansas  v.  Colorado,  185  U.  S.  142, 
Co.  184  U.  S.  199,  46  L.  ed.  499,  46  L.  ed.  838,  22  Sup.  Ct.  Rep.  5,52; 
22  Sup.  Ct.  Rep.  308.  South  Carolina  v.  Georgia,  93  U.  S. 

i«Xew  Jersey  v.  New  York,  5  Pet.    4,  23  L.  ed.  782. 
290,   8  L.  ed.   127;    Rhode   Ishmd   v.        20Rhode  Island    v.    Massachusetts, 
Massachusetts,  12  Pet.  057,  9  L.  ed.    12  Pet.  721.  9  L.  ed.  1233. 
1234;    Alabama  v.  Georgia,  23   How.        iLouisiana  v.  Texas,  176  U.  S.  23, 
510,   16  L.  ed.  5.59;    Iowa  v.   Illinois,    44  L.  ed.  356,  20  Sup.  Ct.  Rep.  251; 
202  U.  S.  59,  50  L.  ed.  934,  26  Sup.    Hans  v.  Louisiana,  134  U.  S.  1,  33  L. 
Ct.  Rep.  571;  Louisiana  v.  Mississip-    ed.  842,  10  Sup.  Ct.  Rep.  504. 
pi,  202  U.  S.  1.  58.  50  L.  ed.  913,  934, 

21 


§  2   [o]  FEDERAL  JURISDICTION   IN   GENERAL.  [Code  Fed. 

fendant  State  to  citizens  of  the  plaintiff  State. 2  Controversies  ex  con- 
tractu, between  States  are  necessarily  rare  and  where  tortious  action  by 
a  State  is  alleged  it  has  been  said  it  must  appear  to  be  the  action  of  the 
State  and  not  merely  of  an  ofhcer  in  the  maladministration  of  its  laws. 3 
Thus  where  the  tort  committed  was  that  of  officers  in  the  malevolent  mis- 
application of  the  quarantine  laws  of  Texas  the  State  injured  was  held  not 
entitled  to  relief  against  the  State  of  Texas  as  such;  but  where  the  injury 
alleged  was  to  the  health  of  the  people  in  an  adjoining  State,  by  the  ac- 
tion of  a  sanitary  district  acting  as  agent  of  the  State  government  and 
according  to  lawful  authority,  the  tort  was  held  that  of  the  State.*  "It 
would  be  objectionable  and  indeed  impossible  for  the  court  to  anticipate 
by  definition"  what  controversies  can  and  what  cannot  be  brought  under 
this  provision. 5  Torts  affecting  the  public  health  against  which  other 
relief  would  be  inadequate,  and  torts  affecting  the  public  property  of  a 
State  probably  constitute  the  chief  justiciable  controversies.  Absence  of 
other  adequate  relief  and  ability  to  make  an  effective  decree  in  case  juris- 
diction is  entertained  are  important  and  often  controlling  factors. 

Lo]  Suits  by  State  against  citizens  of  another  State,  etc.,  or  arising  under 
Federal  laws. 
Suits  against  citizens  of  other  States  in  the  Federal  court  have  been  in- 
frequent. Ordinarily  a  State  would  proceed  in  its  own  courts  where  defend- 
ant was  within  its  jurisdiction,  since  the  right  to  do  so  is  not  ousted  by  the 
grant  of  Federal  jurisdiction; 7  and  actionable  controversies  against  a  non- 
resident for  injuries  to  the  State  as  such,  do  not  often  arise.  The  cases 
in  which  jurisdiction  has  been  sustained  imder  this  clause  have  been  mainly 
for  the  protection  of  State  property  rights. s  The  jurisdiction  is  confined  to 
civil  causes  and  this  grant  of  judicial  power  does  not  authorize  the  Supreme 
Court  to  administer  the  penal  laws  of  a  State.  Hence  a  suit  against  a 
foreign  insurance  company  to  enforce  payment  of  a  penalty  for  violation 
of  its  municipal  laws,  cannot  be  entertained  under  this  section. 9  In  one 
or  two  cases  in  which  a  State  has  brought  proceedings  against  a  sister 
State,  members  of  the  court  have  intimated  that  citizens  or  municipal 
districts  of  the  defendant  States  would  have  been  the  proper  defendant.io 
The  removal  acts  have  never  permitted  the  removal  of  a  cause   because 

2New  Hampshire  v.  Louisiana,  108  son,  170.  U.  S.  521,  42  L.  ed.  112G.  18 

U.  S.  91,  27  L.  cd.  G62,  2  Sup.  Ct.  Rep.  Sup.  Ct.  Rep.  G8.5. 
184.  sPennsylvania  v.  Wheeling  Bridge 

sLouisiana  v.  Texas,  176  U.  S.  23,  Co.  13  How.  518.  14  L.  ed.  249;  Texas 

44  L.  ed.  35G,  20  Sup.  Ct.  Rep.  258.  v.  White,  7  Wall.  700.  19  L.  ed.  227; 
^Missouri  V.  Illinois.  180  U.  S.  208,  Florida  v.  Anderson,  91  U.  S.  G67,  23 

45  L.  ed.  498,  21  Sup.  Ct.  Rep.  344,  L.  ed.  290;  Akibama  v.  Burr.  115  U. 
sMissouri  v.  Illinois,  180  U.  S.  208,  S.  413,  29  L.  ed.  435,  6  Sup.  Ct.  Rep.  81. 

45  L.  ed.  497,  21   Sup.  Ct.  Rep.  343,  nVisconsin  v.  Pelican  Ins.  Co.    127 

344.     Costs  may  be  decreed  against  U.  S.  265,  32  L.  ed.  239,  8  Sup.  Ct. 

the   losing   State    in    litigation   with  Rep.     1370.       Such    suits    must    be 

another  State.     Missouri    v.    Illinois,  brought  in  State  court.     Postal,  etc. 

202  U.  S.  598,  50  L.  ed.  1160,  26  Sup.  Co.  v.  Alabama,  155  U.  S.  487,  39  L. 

Ct.  Rep.  713.  ed.  231,  15  Sup.  Ct.  Rep.  192. 

'i' Plaquemines,   etc.  Co.  v.  Hender-  lOSee  Louisiana  v.  Texas,   176  U. 

22 


Procedure]  SCOPE  AND  EXTENT.  §  2    [q] 

between  a  State  and  citizens  of  anotlier  State  or  aliens,  but  the  act  of  1875 
permitting  removal  of  causes  arising  vmder  the  Federal  constitution,  laws 
or  treaties,  was  held  to  include  suits  brought  by  a  State  where  such  a 
question  was  involved,  n  The  fact  that  the  Supreme  Court  has  original 
jurisdiction  where  a  State  is  a  party  does  not  prevent  Congress  conferring 
also  appellate  jurisdiction,!  2  and  the  principle  forbidding  suits  against  a 
State  though  arising  under  the  Federal  Constitution  and  laws,i3  does  not 
apply  to  suits  by  a  State. 

[pj     Procedure  in  suits  affecting  States. 

Rule  5  of  the  Supreme  Court  provides  for  service  of  process  against 
States. 16  Early  cases  held  that  a  State  might  properly  sue  by  the  governor 
in  behalf  of  the  State.i^  But  the  practice  now  is  for  the  State  to  sue  as 
such,  by  its  Attorney  General. is  In  one  case  an  avithority  and  ratifi- 
cation by  the  governor,  of  the  solicitor's  action  in  filing  a  bill,  was  filed 
in  the  Supreme  Court.i9  Filing  of  demurrer  signed  by  A.  B.,  "Attorney 
General  of  New  York,"  is  an  appearance  by  the  State.  20  Subpoena  has 
issued  to  be  served  sixty  days  before  the  return  day.i  In  boundary  cases 
the  chancery  practice  prevails,  but  technical  principles  of  pleading  may 
be  disregarded. 2  Disputed  matters  of  fact  and  the  proper  location  of  the 
boundary  when  settled,  are  adjusted  through  the  appoincment  of  com- 
missioners.3 

[q]     Suits  between  citizens  of  different  States  and  aliens. 

This  jurisdiction  was  conferred  on  the  Federal  courts  to  secure  an  im- 
partial tribunal  for  settlement  of  such  controversies. s  Congress  has  vest- 
ed the  jurisdiction  principally  in  the  circuit  court,  both  original,  and  on 
removal  from  State  courts. 9  Certain  general  principles,  however,  growing 
out  of  this  grant  of  Federal  judicial  power,  may  appropriately  be  considered 
here.  It  is  apparent  from  the  wording  of  the  constitutional  provision  that 
controversies  merely  between  two  or  more  aliens  are  not  of  Federal  cog- 

S.  23,  44  L.  ed.  356.  20  Sup.  Ct.  Rep.  Co.   184  U.  S.  199,  46  L.  ed.  499,  22 

251;    xviissouri  v.   Illinois,   180  U.   S.  Sup.  Ct.  Rep.  308. 

241,  45  L.  ed.  512,  21   Sup.  Ct.  Rep.  isTexas  v.  White,  7  Wall.  719,  19 

331.  L.  ed.  227;   so  governor  may  engage 

iiRailroad  Co.   v.   Mississippi,   102  counsel  in  re  Paschal.  10  Wall.  ^493, 

XJ.  S.  141,  26  L.  ed.  96;  Ames  v.  Kan-  19  L.  ed.  992. 

sas.  111  U.   S.  472,  28  L.  ed.  482.  4  2  0Xew  Jersey  v.  New  York,  6  Pet. 

Sup.  Ct.  Rep.  437;   Southern  Pac.  R.  327,  8  L.  ed.  414. 

R.  V.  California,  118  U.  S.  112.  30  L.  iGrayson  v.  Virginia,  3  Dall.  321, 

ed.  104,  6  Sup.  Ct.  Rep.  mi:  Arkan-  1  L.  ed.  619. 

sas  V.  Kansas,  etc.   Co.  96  Fed.  355.  2Rhode  Island  v.  Massachusetts,  14 

See  post,  §  133.  Pet.  257,  10  L.  ed.  423. 

i2See  post,  §  36.[a]  sFowler  v.  Lindsey,  3  Dall.  413,  1 

isSee  post,  §  7,  note.[c]  L.  ed.  658;  Missouri  v.  Iowa,  7  How. 

isSee  post,  §  858.  667.  12  L.  ed.  861. 

i7Georgia  v.  Brailsford.  2  Dall.  402,  sBarrow  S.  S.  Co.  v.  Kane.  170  U. 

1  L.  ed.  433;  Kentuckv  v.  Denuison,  S.  Ill,  42  L.  ed.  964,  18  Sup.  Ct.  Rep. 

24  How.  97,  16  L.  ed.  717.  526. 

isSee  Minnesota  v.  Northern  Sec.  sPost,  §§  131,  134. 

23 


§   2    [r]  FEDERAL   JURISDICTION   IN   GENERAL.  [Code  Fed. 

nizance.io  A  territory  is  not  a  State  within  this  provision  and  its  citi- 
zens cannot  sue,  or  be  sued  by,  citizens  of  States  or  aliens  under  this  grant 
of  judicial  power. n  Nor  is  a  State  a  citizen  within  this  provision.  12  Fed- 
eral jurisdiction  fails  where  all  the  parties  on  one  side  of  the  controversy 
have  not  a  right  by  diverse  citizenship  or  alienage,  to  sue  all  the  parties  on 
the  other  side.is  To  protect  defendants  properly  entitled  to  a  removal 
from  State  to  Federal  court  against  devices  to  defeat  the  right  by  joinder 
of  other  parties  under  this  principle,  Congress  has  provided  a  right  of  re- 
moval where  a  case  contains  a  controversy  between  citizens  of  different 
states  or  aliens,  which  is  separable  from  other  issues  in  the  cause.i*  To 
this  end  also,  the  courts  will  not  permit  a  right  of  removal  to  be  defeated 
by  the  joinder  of  nominal  or  imnecessary  parties; is  but  will  rearrange  the 
parties  according  to  their  interest,  in  determining  the  right  to  removal. 1 6 
They  will  also  entertain  jurisdiction  originally  when  the  joinder  of  proper, 
but  not  necessary,  parties  would  defeat  it.i^ 

[r]  —  suits   by  assignee  and  transfers  to   give  jurisdiction. 

From  the  first.  Congress  has  legislated  to  prevent  undue  enlargement  of 
Federal  jurisdiction  through  the  device  of  assignments  made  to  parties  who 
having  the  requisite  diverse  citizenship  could  sue  in  the  Federal  court.19 

[sj  —  representative  parties  and  real  party  in  interest. 

Another  settled  principle  in  the  construction  of  the  grant  of  jurisdic- 
tion for  diverse  citizenship  or  alienage,  is  that  where  a  nominal  plaintiff  is 
made  by  law  the  conduit  through  whom  the  real  complainant  seeks  relief, 
the  latter  is  regarded  as  the  real  party  for  jurisdictional  purposes.!  But 
this  principle  is  not  to  be  confused  with  another,  equally  well  settled, 
that  the  courts  look  to  the  citizenship  of  the  party  in  whom  the  cause 
of  action  is  vested  and  not  to  the  status  of  his  predecessor  in  interest  or 

lOMossman  v.  Higginson,  4  Dall.  Hool  v.  Jamieson,  166  U.  S.  397,  41 
14.  1  L.  ed.  720;  Montalet  v.  Murray,    L.  ed.  104!),  17  Sup.  Ct.  Rep.  5&6. 

4  Cranch,  47,  2  L.  ed.  545.  1 4 Post,  §   135. 

iiHepburn  v.  Ellzev.  2  Cranch.  453,        isWood  v.  Davis,  18  How.  46n,  15 

2  L.  ed.  332;  New  Orleans  v.  Winter,  L.  ed.  460;  Bacon  v.  Rives,  106  U.  S. 

1  Wheat.  94,  4  L.  ed.  44;  Cameron  v.  104,  27  L.  ed.  69,  1  Sup.  Ct.  Rep.  3; 

Hodges,  127  U.  S.  325.  32  L.  ed.  132,  Einstein  v.  Georgia,  etc.  Ry.  120  Fed. 

5  Sup.  Ct.  Rep.  1154:  Hool  v.  Jamie-  1008. 

son,  166  U.  S.  397,  41  L.  ed.  1049,  17  isHarter  v.  Kernochan,   103  U.  S. 

Sup.   Ct.  Rep.   596;    Watson  v.  Bon-  506,  567,   26    L.    ed.    411;    Carson  v. 

fils,    116   Fed.   157,  53  C.    C.  A.  535;  Hvatt,  118  U.  S.  279,  30  L.  ed.   167; 

Weller  v.  Hanaur,  105  Fed.  193.  Evers  v.  Watson.  156  U.  S.  532,  39  L. 

i2Stone  V.  South  Carolina,  117  U.  ed.  520.  15  Sup.  Ct.  Rep.  430. 

S.  433,  29  L.  ed.  962.  6  Sup.  Ct.  Rep.  i^Cameron  v.  McRoberts,  3  Wheat. 

799;  Missouri,  etc.  R.  R.  v.  Missouri,  .594,  4  L.  ed.  467;   Vattier  v.  Hinde, 

etc.   Comrs.   183  U.   S.  58,   46  L.  ed.  7  Pet.  263,  8  L.  ed.  675;  Horn  v.  Lock- 

78,  22  Sup.  Ct.  Rep.  18;  Arkansas  v.  hart,    17    Wall.    579,   21    L.    ed.    657; 

Kansas,  etc.  Co.  183  U.  S.  188,  46  L.  Hotel  Co.  v.  Wade,  97  U.  S.  20.  24  L. 

ed.  144.  22  Sup.  Ct.  Rep.  47.  ed.  917;  Delaware,  etc.  R.  R.  v.  Frank, 

isStrawbriflge  v.  Curtiss,  3  Cranch,  110  Fed.  689. 

207,  2   L.   ed.   435;     New    Orleans  v.  ^s  See  post,  §  23. 

Winter.    !    \Mioat.    95.    4    L.    ed.    44;  iJrvine  v.  Lowrv,   14  Pet.   300.   10 

24  ■      ■ 


Procedure]  SCOPE  AND  EXTENT.  §  2   [t] 

those  beneficially  interested. 2  Thus  the  citizenship  of  an  executor  or  ad- 
ministrator controls,  regardless  of  the  citizenship  of  decedent; 3  and  the 
citizenship  of  a  trustee,  regardless  of  the  beneficiaries.*  In  the  case  of 
a  guardian  suing  for  an  infant  or  for  an  insane  person,  or  of  an  infant 
suing  by  his  next  friend,  the  question  in  whom  the  right  of  action  is 
vested,  controls.  If  it  is  vested  in  the  guardian,  his  citizenship  is  decisive,* 
but  if  he  merely  sues  in  the  ward's  name,«  or  if  an  infant  sues  by  his  next 
friend^  the  citizenship  of  the  ward  or  infant  controls. 

[t]  —  citizenship  of  corporations,  partnerships  and  associations. 

After  some  vacillation  in  early  cases,  the  rule  finally  became  and  is 
now  well  established  that,  for  jurisdictional  purposes,  a  corporation  is  a 
citizen  of  the  State  of  its  incorporation  and  its  stockholders  are  conclu- 
sively presumed  citizens  of  such  State,io  though  there  is  otherwise  no 
legal  presumption  that  a  corporation's  president  is  a  citizen  of  the  same 
State.ii.  The  presumption  of  uniform  citizenship  is  not  extended  to  unin- 
corporated associations,  joint  stock  companies,  or  partnerships  and  the 
actual  citizenship  of  members  thereof  controls. 12  State  laws  requiring 
foreigTi  corporations  to  file  their  articles  of  incorporation,  even  though 
adopting  them  as  domestic  corporations  upon  compliance  with  this  require- 
ment, do  not  deprive  such  foreign  corporations  of  their  original  citizen- 
ship for  jurisdictional  purposes. is  A  corporation  which  goes  into  an- 
other State  and  obtains  a  charter  there  remains  for  Federal  jurisdictionaf 

L.  ed.  462;  Coal  Co.  v.  Blatchford,  11  C.  C.  A.  459.     See  Toledo  T.   Co.  v. 

Wall.   177,  20  L.  ed.   179;   Marvland  Cameron,     137     Fed.    48,    69     C.    C. 

v.  Baldwin,  112  U.  S.  491.  28  L.  ed.  A.  28. 

822.  5  Sup.  Ct.  Rep.  278;   Stewart  v.  ^Williams  v.  Ritchev.   3   Dill.  406. 

Baltimore,  etc.  R.  R.  168  U.  S.  449,  Fed.  Cas.  No.  17,734:    Toledo  T.  Co. 

42  L.  ed.  537.  18  Sup.  Ct.  Rep.   105;  v.    Cameron,    137    Fed.    48,    69    C.    C. 

Williams  v.  Ritchey,  3  Dill.  406.  Fed.  A.  28. 

Cas.  No.  17,734:  Jack  v.  Williams,  113  lOLouisville,  etc.   R.   R.  v.  Letson, 

Fed.   823:    Cincinnati,   etc.   R.    Co.   v.  2  How.  555,  558,  11  L.  ed.  353;  Rail- 

Thiebaud,   114  Fed.   918,  52   C.  C  A.  road  Co.  v.  Koontz,  104  U.  S.  12,  26 

.'i38;  Bishop  v.  Boston,  etc.  R.  R.  117  L.    ed.    643;    St.    Louis,    etc.   Ry.    v. 

Fed.  771;   Franklin  v.  Conrad-S.  Co.  James,  161  U.  S.  562,  40  L.  ed.  802, 

137  Fed.  737,  70  C.  C.  A.  171.  16  Sup.  Ct.  Rep.  621;   Barrow  S.   S. 

2Knapp   V.   Railroad   Co.   20   Wall.  Co.  v.  Kane,  170  U.  S.  106,  42  L.  ed. 

124,  22  L.  ed.  328.  964,  18  Sup.  Ct.  Rep.  526. 

sChappedelaine     v.     Dechenaux,     4  nUta.h-Nevada   Co.   v.   De   Lamar. 

Cranoh   308.   2  L.  ed.   629;     Mexican,  133  Fed.  113,  66  C.  C.  A.  179. 

etc.  R.  R.  V.  Eckman.  187  U.  8.  429.  47  i2Great  Southern,  etc.  Hotel  Co.  v. 

L.  ed.  245,  23  Sup.  Ct.  Rep.  213:  New  .Tones,    177  U.   S.   449.  44  L.  ed.   842. 

Orleans  v.  Gaines,  138  U.  S.   606.  34  20    Sup.   Ct.    Rep.    690;    Chapman   v. 

L.   ed.    1102,   11    Sup.   Ct.   Rep.   428;  Barney.  129  U.  S.  677,  32  L.  ed.  800, 

Dodffe  v  Perkins.  4  Mason,  435  Fed.  9  Sup.  Ct.  Rep.  426.    See  Fred  Macey 

Cas.'^No.  3,954.  Co.    v.    Macey,    135    Fed.    725.    68    C. 

iDodge  V.  Tulleys,   144  U.   S.  455,  C.  A.  363,  holding  Michigan  organi- 

456,  36" L.  ed.  501,   12  Sup.  Ct.  Rep.  zation  a  partnership;   nnd  Derk.  etc. 

728.  Co.  V.  Charles,  etc.  Agency,  135  Fed. 

^Mexican,  etc.  R.  R.  v.  Eckman,  187  613.   holdinu:   citizenship   of    partners 

U.  S.  429,  47  L.  ed.  245.  23  Sup.  Ct.  suflicientlv  alleged. 

Rep.  211.  i3Raihvay  Co.  v.  Whitton,  13  Wall. 

eStont  V.  Rigney,  107  Fed.  545,  46  285.  20  L.  ed.  571:   Pennsylvania  R. 

25 


S   2   [u]  FEDERAL  JURISDICTION   IN   GENERAL.  [Code  Fed. 

purposes  a  citizen  of  the  State  of  its  original  corporation.  It  can  neither 
sue  nor  be  sued  in  the  Federal  courts  as  a  citizen  of  the  second  State.i^ 
If  it  comes  into  court  alleging  its  incorporation  in  both  States  it  cannot 
maintain  suit  against  a  citizen  or  other  corporation  of  either  State,  since 
such  a  pleading  is  deemed  to  show  a  joinder  of  two  plaintiffs  who  are  citi- 
zens of  two  different  States. is  A  consolidation  of  two  corporations  works 
a  dissolution  of  the  original  concerns  and  creates  a  new  corporation,!  6 
unless  the  legislature  otherwise  intend. i"  The  citizenship  of  the  new 
company  is  that  of  the  State  first  granting  it  a  charter. is 

[u]     Change  of  status  after  suit  brought  and  to  confer  jurisdiction. 

The  status  of  the  party  at  the  time  suit  is  brought,  and  not  beforei  or 
afterwards,  governs; 2  hence  Federal  jurisdiction  can  neither  be  divesteds 
nor  conferred*  by  a  change  of  citizenship  pending  suit.  Moreover  if  juris- 
diction properly  attached  when  suit  was  brought,  a  change  in  parties,  such 
as  the  substitution  of  the  administrator  of  a  deceased  party,  will  not 
oust  it; 5  nor  will  the  fact  that  the  party  originally  bringing  suit  has 
ceased  to  take  an  active  part  therein. 6  It  has  been  held  that  in  the 
absence  of  objection  to  the  jurisdiction  it  is  sufficient  if  it  existed  at  the 
time  judgment  was  entered. 7  It  has  also  been  decided  that  a  voluntary 
transfer  of  plaintiff's  interest  to  one  whose  citizenship  does  not  entitle 
to  a  Federal  tribunal,  will  not  oust  the  jurisdiction  after  it  has  properly 
attached.*  The  fact  that  a  party  changes  his  domicil  prior  to  suit,  though 
with  the  express  purpose  of  acquiring  a  right  to  sue  in  the  Federal  court, 

Co.  V.  St.  Louis,  etc.  R.  R.  118  U.  S.  2  Connolly  v.  Taylor,  2  Pet.  565,  7 

297,  30  L.  ed.  83,  6  Sup.  Ct.  Rep.  1094;  L.  ed.  518;'  Colorado,  etc.  Min.  Oo.  v. 

St.  Louis,  etc.  Rv.  v.  James,  IGl  U.  S.  Turck,  150  U.  S.  144,  37  L.  ed.  1030, 

566,  40  L.  ed.  802,  16  Sup.  Ct.  Rep.  14  Sup.  a.  Rep.  35. 

021 ;   St.  Joseph,  etc.  R.  R.  v.  Steele,  sMollan  v.  Torrance,  9  Wheat.  539, 

167  U.  S.  663,  42  L.  ed.  315,  17  Sup.  6  L.  ed.    154;    Morgan  v.  Morgan,  2 

Ct.    Rep.    925:    Southern   Ry.   Co.    v.  Wheat.   297,   4  L.    ed.   242;    Dunn  v. 

Allison,  190  U.  S.  326,  47  L.  ed.  1078,  Clarke,  S  Pet.  3,  8  L.  ed.  845;  Collins 

23  Sup.  Ct.  Rep.  713.  v.  Qty  of  Ashland.  112  Fed.  175. 

i^Louisville,  etc.  Ry.  v.  Louisville  ^Connolly  v.  Taylor,  2  Pet.  565,  7 

Trust   Co.   174  U.   S.  563,  43   L.   ed.  L.  ed.  51S;'Gibson  V.  Bruce,  108  U.  S. 

1081,  19  Sup.  Ct.  Rep.  821,  and  cases  563.   27  L.  ed.   826,  2  Sup.   Ct.   Rep. 

cited:   Walters  v.  Chicago,  etc.  R.  R.  873. 

104  Fed.  377;  Freeman  v.  Amer.  Sur.  sciarkev.  Matthewson,  12  Pet.  171, 

Co.  110  Fed.  548.  9  L.  ed.  1041;  Hemingway  v.  Stansell, 

isOhio.    etc.   R.   R.   v.    Wheeler,    1  106  U.  S.  402,  27  L.  ed.  245,  1  Sup.  Ct. 

Black.  297.  298,  17  L.  ed.  130;  Louis-  Rep.   473;   Hardenbergh  v.  Ray,   151 

ville,  etc.  Rv.  v.  Louisville  Trust  Co.  U.  S.   118,  38  L.  ed.  93,   14  Sup.  Ct. 

174  U.  S.  552,  43  L.  ed.  1081,  19  Sup.  Rep.   305;   Whvte  v.  Gibbs,  20  How. 

Ct.  Rep.  821.  542,  15  L.  ed.  1016. 

leClearwater  v.  IMeredith,  1  Wall.  « Washington,     etc.    Ry.    v.    Coeur 

40,  17  L.  ed.  604:  Shields  v.  Ohio,  95  D'Alene  Ry.  160  U.  S.  94,  40  L.  ed. 

U.  S.  325,  24  L.  ed.  357.  346,  16  Sup.  Ct.  Rep.  231. 

iTCentral  R.  R.  v.  Georgia,  92  U.  ^Pacific  R.  R.  v.  Ketchum,  101  U. 

S.  670,  23  L.  ed.  757.  S.  298.  25  L.  ed.  ^32. 

isWestheider  v.  Wabash  R.  R.  115  sGlover  v.  Shepperd,  21   Fed.  481; 

Fed.  841.  Ross  v.  City  of  Ft.  Wavne;  63  Fed. 

iNoves  V.  Crawford.  134  Fed.  796.  466,  11  C.  C.  A.  288;  Jarboe  v.  Tem- 

26 


Procedure]  SCOPE  AND  EXTENT.  §   2   [v] 

does  not  defeat  that  right  if  the  change  is  bona  fide. 9  The  wife's  domicil 
for  jurisdictional  purposes  is  presumed  to  be  that  of  her  husband  though 
in  fact  she  reside  elsewhere.io 

l|v]  —  interveners  and  cross  complainants. 

The  general  rule  that  interveners  in  a  case  where  jurisdiction  depends  on 
diverse  citizenship  or  alienage,  must  themselves  have  the  necessary  diverse 
citizenship,! 4  is  subject  to  important  exceptions.  When  the  Federal  court 
has  acquired  a  jurisdiction  over  the  subject  matter  of  the  litigation  either 
because  in  possession  of  its  officers,  or  otherwise,  of  such  a  nature  that  no 
State  court  could  properly  entertain  jurisdiction  over  the  same,  it  is  ob- 
vious that  justice  might  be  thwarted  unless  third  persons  asserting  rights 
in  that  subject  matter  were  permitted  to  appear  and  protect  them.i5  in 
such  cases  diverse  citizenship  of  the  intervener  need  not  appear  and  his 
application  is  regarded  as  ancillary  to  the  main  suit. 1 6  Thus  in  fore- 
closure proceedings  brought  by  certain  bondholders  for  themselves  and 
others,  or  in  other  proceedings  to  enforce  a  lien,  and  in  creditors'  suits  to 
reach  assets,  other  bondholders  and  other  creditors  may  come  in  reganl- 
less  of  their  citizenship,  i^  So  where  property  has  been  attached,  a  third 
person  may  intervene  to  protect  his  rights. is  The  principle  applies  also 
to  a  cross  bill  or  complaint  filed  by  a  defendant  in  the  original  bill.  If 
he  seeks  affirmative  relief  respecting  the  property  which  has  come  within 
the  court's  exclusive  custody,  e.  g.  to  foreclose  an  asserted  lien  of  his 
own,  or  to  cancel  the  plaintiff's  claim,  he  may  do  so  and  join  other  par- 
pier,  38  Fed.  217;  but  see  Adams  Exp.  Shakers  v.  Watson,  68  Fed.  736,  15 
Co.  V.  Denver,  etc.  Ry.  16  Fed.  717,  4  C.  C.  A.  632;  Clarke  v.  Eureka  Co. 
McCrarv,  77.  Bank.   116  Fed.   534,   and   Everett  v. 

9  Morris  V.  Gilmer,  129  U.  S.  328,    School  Dist.  102  Fed.  520,  where  the 
32  L.  ed.  690,  9  Sup.  Ct.  Rep.  289.    See    principle  is  more  broadly    stated, 
also  post,   §   23.  1  "Galveston,  etc.  R.  R.  v.  Cowderv. 

lOThompson  v.  Stalmann.  139  Fed.  11  Wall.  478,  20  L.  ed.  205;  Chicago. 
93.  etc.  R.  R.  v.  Union,  etc.  Co.  109  U.  S. 

i4Clvde  V.  Richmond,  etc.  R.  R.  65  717,  718,  27  L.  ed.  1081,  3  Sup.  Ct. 
Fed.  336;  Forest  Oil  Co.  V.  Crawford,  Rep.  594;  Stewart  v.  Dunham,  115 
101  Fed.  849,  42  C.  C.  A.  54:  Rouse  U.  S.  61,  29  L.  ed.  329,  5  Sup.  Ct. 
v.  Letcher,  156  U.  S.  47,  39  L.  ed.  Rep.  1164:  Lilienthal  v.  McCormick. 
341,  15  Sup.  Ct.  Rep.  266;  United,  117  Fed.  89,  54  C.  0.  A.  475;  Mc- 
etc.  Co.  V.  Louisiana,  etc.  Co.  68  Fed.  Bee  v.  JMarietta,  etc.  R.  R.  48  Fed. 
673.  247 ;  Central  Trust  Co.  v.  Bridges,  57 

isConwell  v.  White,  etc.  Canal  Co.  Fed.  762.  6  C.  C.  A.  539:  OslK)rne  v. 
4  Biss.  195,  Fed.  Cas.  No.  3,148;  Barge,  30  Fed.  806:  Forbes  v.  Mem- 
Henderson  V.  Goode,  49  Fed.  887;  phis,  etc.  R.  R.  2  Woods,  323.  Fed. 
United,  etc.  Co.  v.  Louisiana,  etc.  Co.  Cas.  No.  4,9^:0;  Belmont  Nail  Co.  v. 
68  Fed.  673.  Columbia,  etc.  Co.  40  Fed.  336.     But 

i^Stewart  v.  Dunham.  115  U.  S.  61,  it  has  been  otherwise  held  wliere  all 
115  L.  ed.  329,  5  Sup.  Ct.  Rep.  1164;  bondholders  were  necessary  parties. 
Rouse  V.  Letcher,  156  U.  S.  49.  39  See  Mangels  v.  Donau.  etc.  Co.  53 
L.  ed.  342,  15  Sup.  St.  Rep.  266;  Fed.  513;  Tug  River  Co.  v.  Brigel, 
Siwix  aty,  etc.  Co.  v.  Trust  Co.  of  67  Fed.  625,  14  C.  C.  A.  577. 
North  America,  82  Fed.  128,  27  C.  C.  isKrippendorf  v.  Hvde,  110  U.  S. 
A.  73;  Rice  v.  Durham  Water  Co.  91  276,  28  L.  ed.  145,  4  Slip.  Ct.  Rep.  27; 
Fed.  433;  Park  v.  New  York.  etc.  R.  Raisin  v.  Statham.  22  Fed.  146. 
R.     70    Fed.     641.     See     Society    of 

27 


§   '^    [w] 


FEDERAL   JUUISDICTION   IN   GENERAL. 


[Code  Fed. 


ties  who  have  not  the  requisite  diverse  citizenship,  without  ousting  the 
jurisdiction  that  originally  attached. 19  And  the  cross  bill  may  be  retained 
where  independent  relief  is  prayed,  though  the  original  bill  be  dismissed. 2  0 
The  right  to  a  hearing  in  the  court  having  possession  of  the  res,  may  be 
asserted  by  the  ordinary  bill  of  intervention,  or  by  cross  bill  of  original 
defendants  or  by  a  bill  in  the  nature  of  an  original  bill.  The  form  of 
pleading  is  immaterial  if  the  court  proceed  upon  it  in  connection  with  the 
other  pleadings  respecting  the  property  before  the  court. i  Bills  which 
would  be  deemed  original  under  ordinary  rules  of  equity  pleading  are  not 
so  regarded  by  the  Federal  courts  in  proceedings  of  this  sort. 2  The  princi- 
ple of  these  cases  merges  itself  in  the  broader  subject  of  the  ancillary  ju- 
risdiction of  the  Federal  courts. s 

[w]     Probate  jurisdiction  resulting  from  diverse  citizenship. 

The  Federal  courts  have  no  probate  jurisdiction,  at  least,  in  so  far  as 
probate  is  an  ex  parte  proceeding.^  But  as  they  have  jurisdiction  of  "con- 
troversies" between  citizens  of  different  States  and  aliens,  it  follows  that 
if  such  a  controversy  arises  in  the  course  of  probate  proceedings  it  is  jus- 
ticiable in  the  Federal  courts.9  Accordingly  they  may  take  jurisdiction  of 
a  suit  against  an  administrator  to  establish  a  claim  against  the  estate: i" 


is^Morgan,  etc.  Co.  v.  Texas,  etc. 
Ry.  137  I  J.  S.  171,  201.  34  L.  ed.  625, 
11  Sup.  Ct.  Rep.  61;  Chicago,  etc.  R. 
R.  V.  Third  Nat.  Bank,  134"U.  S.  276, 
33  L.  ed.  900,  10  Sup.  Ct.  Rep.  550; 
Toledo,  etc.  R.  R.  v.  Continental 
Trust  Co.  95  Fed.  504,  36  C.  C.  A.  155; 
Springfield,  etc.  Co.  v.  Barnard  Co. 
81  Fed.  264,  26  C.  C.  A.  389;  Schenck 
\-.  Peav,  Woolw.  175,  Fed.  Cas.  No. 
12,450;  First  Nat.  Bank  v.  Salem,  etc. 
Co.  31  Fed.  583,  12  Sawv.  485,  496; 
Jesup  v.  Illinois  Cent.  R.  R.  43  Fed. 
496;  Mercantile  Trust  Co.  v.  Atlantic 
&   P.   R.  R.   70   Fed.  518. 

2  0Barnard  v.  Hartford,  etc.  R.  R. 
Fed.  Cas  1.003;  Jesup  v.  Illinois  Cent. 
R.  R.  43  Fed.  496;  Railroad  Co.  v. 
Chamberlain,  6  Wall.  748,  18  L.  ed. 
859.  See  Kromer  v.  Everett  Imp.  Co. 
110  Fed.  22,  where  proceedings  in  in- 
tervention were  dismissed  after  dis- 
missal of  original  cause.  See  also 
post,  §  0G3. 

i]\Torgans,  etc.  Co.  v.  Texas,  etc. 
Ry.  137  U.  S.  201,  34  L.  ed.  636,  11 
Sup.  Ct.  Rep.  71 ;  Rouse  v.  Letcher, 
156  U.  S.  48,  39  L.  ed.  342,  15  Sup. 
Ct.  Rep.  266;  Compton  v.  Jesup,  68 
Fed.  203,  281,  15  C.  C.  A.  3.97;  Lum- 
iey  V.  Wabash  R.  Co.  76  Fed.  66,  22 
C.  C.  A.  60:  Blake  v.  Coal  Co.  84 
Fed.    1014,   28    C.    C.    A.    678:    Conti- 


nental, etc.  Co.  V.  Toledo,  etc.  R.  R. 
87  Fed.  133,  32  C.  C.  A.  44,  s.  c.  on 
appeal,  95  Feu.  504,  505.  36  C.  C. 
A.  155;  Caray  v.  Houston,  etc.  Ry. 
52  Fed.  674;' Fish  v.  Ogdensburgh, 
etc.  R.  R.  79  Fed.  131. 

2:\linnesota  Co.  v.  St.  Paul  Co.  2 
Wall.  633,  17  L.  ed.  895;  Schenck  v. 
Peav,  Woolw.  175,  Fed.  Cas.  No.  12,- 
450.' 

^Post,  §  3. 

sFouveraTie  v.  New  Orleans,  18 
How.  473,  15  L.  ed.  399;  Gaines  v. 
Fuentes,  92  U.  S.  21,  23  L.  ed.  524; 
Byers  v.  McAuley,  149  U.  S.  619,  620, 
37  L.  ed.  867,  13  Sup.  Ct.  Rep.  906; 
Clark  V.  Guv,  114  Fed.  783. 

sEverliart  v.  Ever  hart,  34  Fed.  82; 
Brodhead  v.  Shoemaker,  44  Fed. 
518,  11  L.R.A.  567;  Ellis  v.  Davis,  109 
U.  S.  485,  27  L.  ed.  1006,  3  Sup.  Ct. 
Rep.  327;  Kirby  v.  Chicago,  etc.  R. 
R.  Co.  106  Fed. '.551. 

1  "Clark  v.  Bever,  139  U.  S.  96.  35  L. 
ed.  88,  11  Sup.  Ct.  Rep.  468;  Alice  E. 
M.  Co.  V.  Blanden,  136  Fed.  252.  The 
right  to  sue  to  establish  a  claim  has 
been  held  to  be  confined  to  cases 
where  some  special  equitable  feature 
and  necessitj'  exist.  Schurmeier  v. 
Conn.  etc.  Ins.  Co.  137  Fed.  47.  69 
C.  C.  A.  22. 


Procedure]  SCOPE  AND  EXTENT.  §  2   [w] 

or  to  obtain  payment. n  Proceedings  for  the  probate  of  a  will  are  merely 
ex  parte  and  not  a  suit  or  controversy.!  2  And  a  contest  prior  to  pro- 
bate has  been  held  not  Federally  cognizable. is  It  is  also  decided  that  pro- 
ceedings to  set  aside  the  probate  of  a  will  or  the  issue  of  letters  of  ad- 
ministration on  the  ground  of  fraud  is  not  a  proper  subject  for  equitable 
relief,  and  Federal  jurisdiction  has  accordingly  been  denied. i*  But  a  suit 
to  set  aside  a  will  is  a  controversy  justiciable  in  the  Federal  courts  at  the 
suit  of  a  citizen  of  another  State  or  alien.15  In  general,  it  seems  to  be 
settled  that  a  Federal  court  may  take  jurisdiction  in  equity  where  diverse 
citizensliip  exists,  whenever  by  established  Federal  equity  principles,  a  cred- 
itor or  other  party  interested  in  the  probate  proceedings  would  have  a 
right  to  resort  to  a  court  of  equity  for  the  protection  or  enforcement  of 
some  right.  16  The  fact  that  the  State  provides  a  method  for  relief  in 
the  probate  court  cannot  affect  this  right,  provided  it  is  in  fact  of  an  equi- 
table nature.  Hence  a  distributee  may  sue  the  administrator  in  a  Fed- 
eral court  where  citizenship  is  diverse  upon  allegations  of  fraud  and  waste, 
to  compel  an  accounting  and  for  complainants'  share  of  the  estate.i"  So  a 
creditor  maj-  sue  the  administrator  for  discovery  of  assets.is  A  legatee 
may  sue  an  executor  to  compel  payment  of  legacj'  claimed  to  be  void.is 
Suits  for  the  construction  of  a  will  and  to  have  complainant's  rights  ad- 
judged, have  been  sustained  in  the  circuit  court.20  So,  also  Federal  juris- 
diction to  set  aside  a  sale  of  property  by  a  probate  court,  on  the  ground 
of  fraud  has  been  upheld.21  But  a  suit  to  compel  the  personal  represen- 
tatives to  settle  a  debt  of  their  decedent  will  not  lie  in  the  Federal  court 
where  it  presents  no  ground  for  equitable  interference  with  probate  pro- 
ceedings.!    Nor    will    any    proceeding   be    cognizable   in    the    Federal    court 

iiHess  V.  Reynolds,  113  U.  S.  73,  47.  69  C.  C.  A.  22.  In  O'Callaghan 
28  L.  ed.  927.  5  Sup.  Ct.  Rep.  377.        v.  O'Brien.   199  U.  S.   110,  50  L.  ed. 

I21n  re  Cilley,  58  Fed.  977;  Wahl  111,  25  Sup.  Ct.  Rep.  727,  the  cases 
V.  Franz,  100  Fed.  680,  40  C.  C.  A.  are  re\'iewed  at  length  and  me  law 
638.  upon    the  question  of  Federal   juris- 

isCopeland  v.  Benning,  72  Fed.  5.    diction    in   probate   mattei's    is   sum- 
See   also  Reed  v.   Reed, "31    Fed.  49;     marized. 
Oaklev  v.  Tavlor,  64  Fed.  245.  i^Payne  v.  Hook,  7  Wall.  425.  19  L. 

i4Caseof  BVoderick's  Will,  21  Wall.  ed.  261;  Pulliam  v.  Pulliam,  10  Fed. 
503,  22  L.  ed.  599;  Simmons  v.  Saul,  23;  ]\Iaver  v.  Foulkrod,  4  Wash.  C. 
138  U.  S.  459,  34  L.  ed.  1054,  11  Sup.  C.  349,  Fed.  Cas.  No.  9..341;  Herron  v. 
Ct.  Rep.  369.  Comstock.    139   Fed.   377    (C.   C.   A.). 

ir.Gaines  v.   Fuentes.  92  U.   S.   10,        isKennedv  v.  Creswell,   101   U.   S. 
23  L.  ed.  524;   Ellis  v.  Davis,  109  U.    641,  25  L.  ed.  1075. 
S.  498,  27  L.  ed.  1000,  3  Sup.  Ct.  Rep.        isDomestic,  etc.  Church  v.  Oaither, 
327;   Lawrence  v.  Nelson,   143  U.   S.    62  Fed.  422. 

223,  36  L.  ed.  1.30.  12  Sup.  Ct.  Rep.  20Toms  v.  Owen.  52  Fed.  417; 
440;  Hayes  v.  Pratt,  147  U.  S.  570,  Wood  v.  Paine,  66  Fed.  807.  See  Cen- 
37  L.  ed.  279.  13  Sup.  Ct.  Rep.  503;  tral  Xat.  Bank  v.  Fitzgerald,  94  Fed. 
Everhart    v.     Everhart.   34   Fed.    82;    19. 

Williams  v.  Cra.bb,  117  Fed.  197,  54  2iJohnson  v.  Waters,  111  U.  S.  640. 
C.  C.  A.  213.  59  L.R.A.  425;  Wart  v.  28  L.  ed.  547,  4  Sup.  Ct.  Rep.  619; 
Wart,  117  Fed.  760;  Pichard^on  v.  Arrowsmith  v.  Cleason.  129  U.  S.  99, 
Green,  61  Fed.  431.  9  0.  C.  A.  565.         .32  L.  ed.  6.34,  9  Sup.  Ct.  Rep.  241.  _ 

16  See  cases  supra;  also  Schur-  iBedford  Quarries  Co.  v.  Thomlin- 
meier  v.  Conn.  etc.  Ins.  Co.  137  Fed.    son,  95  Fed.  208.  36  C.  C.  A.  272. 

29 


J  3  FEDERAL  JURISDICTION  IN   GENERAL.  [Code  Fed. 

which  would  interfere  with  the  State  courts'  custody  of  the  estate  under 
the  rules  limiting  another  court's  concurrent  jurisdiction  of  property  in 
custodia  l(>gis;2  and  if  a  claim  established  by  the  Federal  court  is  not 
paid,  the  creditor  must,  at  least  in  the  first  instance,  resort  to  the  State 
court  of  probate  for  relief. 3 

LxJ     Suits  by  land  claimants  under  grants  from  different  States. 

The  jurisdiction  over  such  suits  has  been  vested  in  the  circuit  court  both 
original  and  on  removal. s 

[yj     Suits  affecting  foreign  States. 

The  reports  contain  a  few  cases  in  which  foreign  States  have  appeared 
as  plaintifls  in  the  Federal  courts  luider  the  grant  of  jurisdiction  contained 
in  the  Constitution.! o  Suit  against  a  foreign  State  cannot  be  maintained 
as  of  right  in  the  domestic  court,  and  impleading  such  State  as  defendant 
is  a  mere  invitation  to  it  to  come  in  and  litigate.n  In  New  York  the 
State  court  has  entertained  suit  by  a  foreign  State.12 

§  3.     Ancillary  jurisdiction  of  Federal  courts. 

On  grounds  of  necessity  and  expediency  and  to  prevent  conflicts 
of  jurisdiction"^^^  certain  causes  may  be  brought  in  the  Federal 
court  if  auxiliary  to  some  other  case  or  controversy  there  pending, 
thoug]i  neither  diverse  citizenship,  nor  a  Federal  question  capable 
of  sustaining  jurisdiction,  nor  the  requisite  value  in  dispute,  ex- 
ists. "^^^  If  by  a  receivership,  or  a  suit  to  enforce  a  lien  or  credit- 
ors suit,  or  the  like,  property  has  been  brought  into  the  custody  or 
under  the  control  of  a  Federal  court  in  some  suit  of  Federal  cog- 
nizance,"^*^^  other  claimants  and  parties  in  interest  are  permitted 
to  come  into  that  court  and  there  have  their  rights  adjudicated  and 
enforced,  regardless  of  their  citizenship.  Proceedings  to  construe, '^'^^ 
or  enforce,^*^^^  or  to  set  aside  and  restrain^®^''^^^  a  Federal  judg- 
ment or  decree,  are  deemed  ancillary  and  maintainable  in  the 
Federal  court  regardless  of  ordinary  jurisdictional  restrictions. 
The  same  is  true  of  proceedings  to  enforce  some  incidental  right 
arising  in  a  Federal  suit,  such  as  a  liability  on  an  appeal  or  at- 
tachment   bond    and    the    like.^^^     Proceedings    to    redress     some 

2See  post,  §  16,  note.  L.  ed.   127;   Republic  of  Colombia  v. 

sThiel  Detective  Service  Co.  v.  Mc-  Cauca    Co.    100    Fed.    339;    King    of 

dure,  130  Fed.  55.  Spain  v.  Oliver,  2  Wash.   C.  C.   429, 

TPawlot    v.    Clark,    9    Cranch,    323,  Fed.  Cas.  No.  7,814. 

3  L.  ed.  735.     See  post,  8  131.  1  Planning  v.   Nicaragua;    14   How. 

sColson  V.  Lewis,  2  Wheat.  378,  4  Tr.  517. 

L.  ed.  266.     See  post,  §  134.  i2RepnbHc  of  iNlexico  v.  Arrangois, 

lOThe   Sapphire,   11   Wall.   164,   20  5  Duer,  634,  11  How.  Pr.  576. 

30 


Frocedure]  ANCILLARY    JURISDICTION.  §   3   [b] 

abuse  or  misapplication  of  a  Federal  court's  process  in  a  suit 
cognizable  in  the  Federal  court,  are  also  within  the  ancillary- 
rule. ^^^""^'^  The  same  considerations  which  justify  the  Federal 
courts  in  taking  cognizance  of  all  such  proceedings  as  ancillary 
to  some  other  cause,  forbid  their  taking  jurisdiciton  on  removal 
of  any  similar  ancillary  proceeding  in  a  State  court J^^  A  bill 
in  equity  in  such  ancillary  proceeding  is  not  original  and  substi- 
tuted service  is  permissible. f*^^  On  appeal  the  jurisdiction  is 
governed  by  and  rested  upon  the  same  grounds  as  the  jurisdiction 
in  the  original  cause.  ^^^ 
Author's  Section. 

[a]  Grounds  of  the  ancillary  jurisdiction. 

The  courts  have  stated  the  grounds  of  the  ancillary  jurisdiction  in  a 
number  of  cases. 21  In  those  cases  where  the  basis  of  the  jurisdiction  is 
property  in  custody,  it  would  obviously  result  in  contlicts  of  jurisdiction 
between  State  and  Federal  courts,  to  deny  others  interested  in  such  prop- 
erty the  right  of  resort  to  the  court  having  the  property  under  its  con- 
trol. In  the  cases  where  the  jurisdiction  is  founded  upon  the  fact  of  a 
Federal  judgment  or  decree  and  the  need  for  aid  in  its  enforcement,  con- 
struction or  restriction,  a  denial  of  the  ancillary  jurisdiction  would  give  to 
State  tribunals  a  supervisory  power  not  intended,  and  deprive  Federal 
courts  of  the  necessary  right  fully  to  regulate  the  course  of  proceedings 
before  them,  secure  to  a  successful  party  the  fruits  of  his  judgment,  and 
protect  injured  parties  against  a  judgment  wrongfully  obtained.  In  cases 
where  the  ancillary  jurisdiction  is  exercised  over  abuses  or  misapplica- 
tion of  Federal  process,  it  is  obvious  that  it  is  a  mere  incident  to  the 
power  of  a  court  to  control  its  own  process.  It  is  amply  justifiable  upon 
a  consideration  of  the  abuses  and  conflicts  that  would  result  from  per- 
mitting other  courts  to  interfere. 

[b]  Regardless  of  citizenship  or  amount  in  controversy. 

The  jurisdiction  depends  neither  upon  the  value  in  dispute  nor  the  ex- 
istence of  a  Federal  question,  nor  the  citizenship  of  the  parties.  1  It  is 
concerned  usually  with  cases  where  the  jurisdiction  originally  was  based 
upon  the  character  of  the  parties.  While  an  auxiliary  jurisdiction  is  fre- 
quently exercised  by  Federal  courts  in  matters  essentially  of  Federal  cog- 

2iKrippendorf  v.  Hyde,  110  U.  S.        iLamb  v.  Ewing,  54  Fed.  273.  4  C. 
283,  28  L.  ed.  145.  4  .Sup.  Ct.  Rep.  21.    C.  A.    320;     Pullman's    P.  ('.    Co.   v. 
See  Compton  v.  Jesup,  68  Fed.  270,    Washburn,    66    Fed.    794;    White    v. 
15  C.  C.  A.  397;  Central  Trust  Co.  v.    Ewing,  159  U.  S.  36.  40  L.  ed.  67,  15 
Bridges,  57  Fed.  762,  6  C.  C.  A.  539;    Sup.  Ct.  Rep.  1019;   Sullivan  v.  Bar- 
Conwell  V.  White  Water  Valley,  etc.    nard,  81  Fed.  880. 
Co.  4  Biss.  200,  Fed.  Cas.  No.  3,148; 
Lamb  v.  Ewing,  54  Fed.  273,  4  C.  C. 
A.  320. 

31 


f   3   [c]  FEDERAL   JURISDICTION    IN   GENERAL.  [Code  Fed. 

nizance  such  as  admiralty  and  bankruptcy  causes,  it  would  not  seem  to  be 
necessary  to  justify  that  jurisdiction  under  the  doctrine  here  considered.2 

[c]     Receivership  and  other  foreclosure  cases. 

Freqvient  instances  of  the  exercise  of  ancillary  jurisdiction  have  occurred 
in  railroad  foreclosure  suits  where  receivers  have  been  appointed  ar<l  the 
various  liens  and  other  claims  against  the  property  have  been  litigated. 3 
The  right  of  other  than  the  original  parties,  to  a  hearing  continues  even 
after  decree  in  the  original  cause,  so  long  as  the  property  is  still  in  the 
court's  custody.4  If  the  receiver  was  first  appointed  in  a  suit  of  general 
creditors,  the  court  appointing  him  is  the  proper  one  before  which  fore- 
closure proceedings  should  be  instituted,  regardless  of  citizenship.  6  Where 
the  fund  for  iiayment  of  bonds  has  been  realized  and  is  in  the  court's 
possession,  this  warrants  an  intervening  petition  before  that  court  to  de- 
termine rights  to  the  fund.7  It  is  proper  also  for  stockholders  in  a  de- 
fendant company,  alleging  fraud  in  the  foreclosure  proceedings  to  inter- 
vene in  such  a  proceeding  regardless  of  citizenship. s  In  other  cases  general 
creditors,  bondholders,  or  mortgagees,  of  a  commercial  corporation  claimed 
to  be  insolvent  or  to  be  dissipating  its  assets  have  commenced  the  pro- 
ceedings, and  all  the  various  claimants  have  resorted  to  the  Federal  tri- 
bunal regardless  of  citizenship,  to  litigate  their  rights. lo  The  fact  that 
a  receiver  is  in  possession  under  direction  of  a  Federal  court  makes  it 
proper  to  authorize,  as  ancillary,  proceedings  in  that  court  by  him  for  the 
collection  of  the  assets  of  the  defendant  corporation  to  protect  its  rights, 
and  generally  to  accomijlish  the  ends  sought  and  directed  by  the  suit  in 
which  he  was  appointed.!!     He  is  not,  however,  necessarily  entitled  to  a 

2See,  however,  in  re  Sabin,  21  Fed.  sToledo,  etc.  R.  R.  v.  Continental, 
Oas.  p.  123,  where  Federal  jurisdic-  etc.  Co.  95  Fed.  497,  36  C.  C.  A.  155: 
tion  over  a  controversy  as  to  a  fund  Fish  v.  Ogdensburgh,  etc.  R.  R.  79 
in  the  hands  of  a  bankrupt  assignee  Fed.  131;  Cole  v.  Philadelphia,  etc. 
was  justified  under  the  doctrine  of  Ry.  140  Fed.  944. 
the  ancillary  jurisdiction.  "Central    Trust   Co.   v.    Carter,    78 

sPeople'sBank  v.  Calhoun,  102  U.  Fed.  225,  24  C.  C.  A.  73. 
S.  256,  26  L.  ed.  101 ;  IMorsan's  etc.  sCarey  v.  Houston,  etc.  R.  R.  52 
Co.  V.  Texas,  etc.  Rv.  137  U.  S.  201,  Fed.  671;  Pacific  R.  R.  v.  Missouri  P. 
34  L.  ed.  636,  11  Sup  Ct.  Rep.  61;  R.  R.  Ill  U.  S.  506,  28  L.  ed.  504,  4 
Rouse  V.  Letcher,  156  U.  S.  47,  39  L.  Sup.  Ct.  Rep.  583.  See  also  post,  un- 
ed.  341,  15  Sup.  Ct.  Rep.  266;  Comp-    der  note[e]. 

ton  V.  Jesup,  68  Fed.  279.  15  C.  C.  A.  !OWhite  v.  Ewing,  159  U.  S.  36,  40 
397;  State  Trust  Co.  v.  Kansas,  etc.  L.  ed.  67,  15  Sup.  Ct.  Rep.  1019;  Hol- 
Ry.  115  Fed.  367;  Farmers  L.  &  T.  lins  v.  Brierfield  Coal,  etc.  Co.  150  IT. 
Co.  v.  Lake.  etc.  R.  R.  177  U.  S.  61,  S.  379,  37  L.  ed.  1114,  14  Sup.  Ct. 
44  L.  ed.  671,  20  Sup.  Ct.  Rep.  564;  Rep.  127;  Ross-Mce;ian,  etc.  Co.  v. 
Carey  v.  Houston,  etc.  R.  R.  52  Fed.  Southern,  etc.  Co.  72  Fed.  959;  Dewey 
671,  674;  Toledo,  etc.  R.  Co.  v.  Con-  v.  West  Fairmont,  etc.  Coal'Co.  123 
tinental  Trust  Co.  95  Fed.  504,  36  C.  U.  S.  329,  31  L.  ed.  179.  8  Sup.  Ct. 
C.  A.  155;  Manhattan  Trust  Co.  v.  Rep.  150;  Montgomerv  v.  McDermott, 
Sioux  City  Ry.  76  Fed.  6.iS;  Central  103  Fed.  801,  42  C.  C.'A.  348;  Central 
Trust  Co.*^  V.  Bridges,  57  Fed.  753,  6  Trust  Co.  v.  LInited  States,  etc.  Mill- 
€.  C.  A.  539:  Farmers  L.  &  T.  Co.  v.  ing  Co.  112  Fed.  371. 
Houston,  etc.  R.  R.  44  Fed.  115.  iiDavis  v.  Grav,   16  Wall.  219.  21 

4Compton  V.  Jesup.  (iS  Fed.  278.  L.  ed.  453;  White" v.  Ewing,  159  U    S. 

32 


Procedure] 


ANCILLARY   JURISDICTION. 


§   3   [c] 


Federal  tribunal  in  prosecuting  other  suits. 12  Suits  against  such  a  re- 
ceiver growing  out  of  his  administration  of  his  trust  are  ancillary  and 
cognizable  in^s  and  removable  toi*  the  Federal  court  appointing  him 
regardless  of  citizenship  or  amount  in  controversy.! » 

Where  jurisdiction  was  wrongfully  taken  in  the  original  suit  appointing 
the  receiver,!"  or  a  receiver  was  improperly  appointed  ex  parte,  and  the 
order  has  since  been  vacated,!  s  the  ancillary  jurisdiction  likewise  fails.  A 
dismissal  of  the  original  cause  will  prevent  jurisdiction  of  subsequent  an- 
cillary proceedings  from  attaching,! 9  but  probably  will  not  oust  ancillary 
jurisdiction  that  has  already  attached  in  cases  where  the  subject  matter 
of  the  controversy  is  in  the  court's  custody. 20  Bank  receivers  appointed 
by  the  comptroller  of  the  currency  are  not  officers  of  the  court  nor  entitled 
upon  that  ground  to  maintain  ancillary  proceedings  in  the  Federal  court.! 
Ancillary  equity  proceedings  cannot  be  supported  where  the  attachment 
issued  by  creditors  at  law  has  not  been  effective  in  bringing  any  specific 
property  within  the  control  of  the  court. 2  A  bill  filed  in  the  court  where 
proceedings  for  foreclosure  on  certain  notes,  are  pending,  by  strangers  to 
the  litigation  who  claim  an  equitable  assignment  of  such  notes,  is  an 
original  bill  and  not  sustainable  as  ancillary  to  the  foreclosure  case.3  A 
stockholders'  suit  five  years  after  settlement  of  foreclosure  litigation  can- 
not be  maintained,  as  ancillary,  wliere  it  really  concerns  subsequent  deal- 
ings between  themselves  and  the  company;  4  and  though  proceeds  of  a  sale 
of  land  to  the  United  States  are  in  custody,  a  bill  to  reach  them  is  not  an- 


3G,  40  L.  ed.  67,  15  Sup.  Ct.  Rep.  1018; 
Pope  V.  Louisville,  etc.  R.  R.  173  U. 
S.  573.  43  L.  ed.  814,  19  Sup.  Gt.  Rep. 
500:  Miles  v.  New  S.  Bldg.  &  L.  Assn. 
95  Fed.  921;  Ex  parte  Tyler.  149  U. 
S.  104,  37  L.  ed.  689,  13  Sup.  Ct.  Rep. 
787;  Memphis  Sav.  Rank  v.  Houehens> 
115  Fed.  96.  52  C.  C.  A.  176;  Connor 
V.  Alligator,  etc.  Co.  98  Fed.  155; 
Gunby  v.  Armstrong,  133  Fed.  417, 
66  C.  C.  A.  627.  See  Bausman  v. 
Denny,  73  Fed.  69,  70,  where  the 
ancillary  jurisdiction  is  explained  on 
other  grounds. 

!2Pope  v.  Louisville,  etc.  R.  R.  173 
U.  S.  573,  43  L.  ed.  814,  19  Sup.  Ct. 
Rep.  500.  See  Gilmore  v.  Herrick,  93 
Fed.  526,  527.     See  also  post,  §  129. 

isRouse  V.  Letcher,  156  U.  S.  47,  39 
L.  ed.  342,  15  Sup.  Ct.  Rep.  266; 
Chattanooga,  etc.  R.  R.  v.  Felton,  69 
Fed.  273;  Washington  v.  Northern 
Pac.  R.  R.  75  Fed.\333. 

i^Carpenter  v.  Northern  P.  R.  R. 
75  Fed.  850;  Sullivan  v.  Barnard,  81 
Fed.  886.  But  see  Rav  v.  Pierce,  81 
Fed.  881;  Pitkin  v.  Cowen,  91  Fed. 
599;  and  Gilmore  v.  Herrick,  93  Fed. 
526,  527. 


15 See  Gilmore  v.  Herrick,  93  Fed. 
526,  527. 

1  "Baltimore,  etc.  Assn.  v.  Ander- 
son, 90  Fed.  146,  32  C.  C.  A.  542. 

isSullivan  v.  Swain.  96  Fed.  259. 

isCabaniss  v.  Reco  Min.  Co.  116 
Fed.  318,  54  C.  C.  A.  190;  in  Kromer 
v.  Everett  Imp.  Co.  110  Fed.  22,  an  in- 
tervention was  dismissed  along  with 
the  original  controversy,  but  it  does 
not  appear  that  any  property  was  in 
the  custody  of  the  court. 

20 At  least  it  has  been  held  that  a 
cross  bill  may  be  retained  after  the 
original  has  been  dismissed.  Bar- 
nard V.  Hartford,  etc.  R.  R.  2  Fed. 
Cas.  836:  Jesup  v.  Illinois  C.  R.  R. 
43  Fed.  496:  Railroad  Co.  v.  Cham- 
berlain, 6  Wall.  748.  18  L.  ed.  859. 

iFoUett  V.  Tillingha&t,  82  Fed.  241. 
But  they  are  officers  of  the  United 
States  and  hence  may  sue  in  the 
circuit  court.     See  post.  §  124. 

2]Montgomery  v.  McDermott,  103 
Fed.  801.  813,  42  C.  C.  A.  348. 

sChristmas  v.  Russell,  14  Wall.  69, 
20  L.  ed.  762. 

4 Central,  etc.  Co.  v.  Farmers'  L. 
&  T.  Co.  114  Fed.  263,  52  C.  C.  A. 
149. 


Fed.  Proc. — 3. 


33 


§   3    [f]  FEDERAL  JURISDICTION   IN   GENERAL.  [Code  Fed. 

ciliary  to  a  suit  at  law  in  which  the  title  was  litijjated  and  adjudged  to 
the  claimants  and  against  the  United  States. 5  A  bill  to  restrain  persons 
from  selling  stock  of  a  railroad  company  is  not  ancillary  to  a  foreclosure 
suit  to  which  the  stockholders  were  not  parties.  6 

[d]     Proceedings  to   construe  judgments. 

Proceedings  to  construe  a  judgment  are  ancillary  and  maintainable  re- 
gardless of  citizenship  or  other  grounds  of  Federal  jurisdiction. s  A  bill  by 
a  railroad  to  have  a  foreclosure  decree  of  its  property  construed  and  ita 
rights  thereunder  declared,  is  ancillary  to  such  foreclosure  suit.* 

[dd]     Enforcement  and  revival  of  judgments. 

It  is  well  settled  that  the  jurisdiction  of  a  court  does  not  terminate  with 
the  judgment  but  continues  until  its  satisfaction.! i  Proceedings  on  exe- 
cution are  part  of  the  proceedings  in  the  cause;  12  and  actions  in  aid  of 
execution  at  law  are  merely  ancillary.is  It  would  be  an  impairment  of  a 
court's  jurisdiction  to  deprive  it  of  power  to  execute  its  decrees.!*  It  is 
under  this  principle  that  the  circuit  court's  power  to  issue  mandamus  chiefly 
arises.  For  while  the  circuit  court  has  no  original  jurisdiction  to  issue  the 
writ,  it  may  be  issued  when  ancillary  to  jurisdiction  already  acquired; is 
e.  g.,  to  compel  the  funding  or  payment  of  a  judgment  at  law  by  a  munici- 
pality; 16  to  compel  a  corporation  to  issue  stock  certilicates  to  a  purchaser 
at  marshal's  execution  sale.i"  A  creditor's  bill  is  properly  brought  in  the 
circuit  court  where  based  on  a  judgment  at  law  in  that  court;  is  but  not 
where  based  on  judgment  at  law  in  the  district  court. 1 9  A  bill  is  main- 
tainable by  purchaser  at  Federal  foreclosure  sale,  to  enjoin  an  improper 
State  court  proceeding  which  would  cloud  his  title, 20  or  any  attack  upon 


sstillman  v.  Combe.  197  U.  S.  438,  Ct.  Rep.  633;   Indiana  v.  Lake  Erie, 

49  L.  ed.  822,  25  Sup.  Ct.  Rep.  480.  etc.  R.  R.  85  Fed.  1 ;   Smith  v.  Bour- 

BRaphael  v.  Trask,  118  Fed.  777.  bon  Co.  127  U.  S.  112,  32  L.  ed.  73, 

sjenks  v.  Brewster,  96  Fed.  625.  8  Sup.  Ct.  Rep.  1043.     See  also  post, 

sMilwaukee,  etc.  R.  R.  v.  Soutter.  §  841. 

2  Wall.  632,  17  L.  ed.  895.  leBoard   of   Liquidation   v.   United 

iiWayman  v.  Southard.  10  Wheat.  States,  108  Fed.  689,  47  C.  C.  A.  587; 

23,  6  L.  ed.  253;  Campbell  v.  Hadley,  Brooks   v.    Memphis,    Fed.    Cas.    No. 

1  Spr.  470,  Fed.  Cas.  No.  2.358.  1954;  Knox  Co.  v.  Aspinwall,  24  How. 

i2Union  Bank  v.  Gearv,  5  Pet.  113,  384,  16  L.  ed.  738;  Riggs  v.  Johnson 

8  L.  ed.  60.                         *  Co.  6  Wall.   187,  194,  18  L.  ed.  773; 

isUnited    States    v.    Halstead.    10  Ex  parte  Flippin,  94  U.  S.  350,  24  L. 

Wheat.   64,  6  L.   ed.   264;    Claflin   v.  ed.  195. 

McDermott,  12  Fed.  375,  20  Blatchf.  i^Hair    v.    Burnell,    l-Oe    Fed.    280. 

522.  See  also  post,  §  841. 

i^Central    Nat.   Bank   v.    Stevens,  isBabcock  v.  Millard,  2  Fed.  Cas. 

169  U.  S.  465,  42  L.  ed.  807,  18  Sup.  299;   Hatch  v.  Dorr,  4  McLean,   112, 

Ct.  Rep.  403.  Fed.  Cas.  No.  6.206. 

i5Bath  Co.  V.  Amy,  13  Wall.  249,  1 9 Winter  v.  Swinburne,   8  Fed.  50, 

250,  20  L.  ed.  539;  Davenport  v.  Coun-  10  Biss.   454. 

ty  of  Dodge,  105  U.  S.  242,  243,  26  20 Julian   v.  Central  T.  Co.   193  U. 

L.    ed.    1018;    Rosenbaum    v.    Bauer,  S.  93,  48  L.  ed.  629,  24  Sup.  Ct.  Rep. 

120  U.  S.  4o8,  30  L.  ed.  743,  7  Sup.  399. 

34 


Procedure]  ANCILLARY    JURISDICTION.  §  3   [e] 

his  title  based  upou  alleged  irregularity  in  the  foreclosure  proceedings.! 
A  bill  praying  that  possession  of  property  be  delivered  up  is  ancillary  to  a 
previous  decree  quieting  complainant's  title.3  A  cross  bill  to  have  a  judg- 
ment declared  a  lien  on  certain  property  by  virtue  of  a  lease  which  secured 
such  judgment  is  ancillary  to  the  case  in  which  the  judgment  was  ob- 
tained.* A  proceeding  to  satisfy  costs  recovered  in  equity,  against  patent 
rights  of  defendant  is  a  mere  incident  to  the  original  cause.s  A  bill  to  re- 
vive and  continue  prior  decrees  in  force  is  cognizable  by  the  court  render- 
ing such  decrees  regardless  of  citizenship  of  parties  thereto.6  Nor  is  di- 
verse citizenship  requisite  in  a  proceeding  to  compel  payment  of  a  Federal 
judgment  out  of  a  fund  made  liable  therefor  by  such  judgment,?  or  to 
subject  attached  property  to  a  judgment. s  In  all  these  cases  the  proceed- 
ing must  be  in  the  court  rendering  the  original  judgment,  in  order  to  be 
deemed  ancillary.  9 

[e]     Relief  against  judgments. 

A  bill  to  set  aside  a  decree  as  fraudulent  is  maintainable  in  the  circuit 
court  rendering  it,  regardless  of  citizenship. 12  _\  suit  to  set  aside  a  fore- 
closure decree  and  a  reorganization  plan  thereunder,  as  fraudulent,  is  cog- 
nizable as  ancillary  to  the  foreclosure  proceedings.!  3  So  a  suit  to  set 
aside  a  judgment  for  fraud  may  be  maintained  against  an  assignee  of  the 
judgment  regardless  of  citizenship.  1*  An  ancillary  bill  to  set  aside  a  judg- 
ment may  be  maintained  though  it  has  been  carried  into  execution,  and 
the  court  by  its  decree  will  seek  to  restore  the  status  prior  to  its  ren- 
dition, is  But  where  defendant  in  the  original  cause  had  died  and  the  suit 
was  not  revived,  and  the  bill  filed  to  set  aside  the  former  decree  in  his  favor 
was  not  against  defendant's  estate  and  did  not  join  her  personal  repre- 
sentatives, it  was  held  not  sustainable  as  ancillary,  and  dismissed  because 
diverse  citizenship  did  not  appear. is  in  proceedings  to  set  aside  a  decree 
for  fraud  the  party  in  whose  favor  the  original  decree  was  rendered  should 
be  made  a  party  and  given  an  opportunity  to  rebut  the  alleged  fraud.i? 
A  bill  to  set  aside  a  judgment  in  partition  for  irregularity  in  service  of 

iRiverdale,  etc.   Mills  v.  Alabama  454;    Wheeling  v.  Mavor,  1  Hughes, 

G.  Co.  198  U.  S.  188,  49  L.  ed.  1008,  94,  Fed.  Cas.  No.  17,502. 

25  Sup.  Ct.  Rep.  629-  i2Richardson  v.  Loree,  94  Fed.  375, 

sRoot  V.  Woohvortn,  150  U.  S.  401,  36  C.  C.  A.  301. 

37  L.  ed.  1123,  14  Sup.  Ct.  Rep.  139.  isCarey  v.  Houston,  etc.  R,  R.  161 

4Milwankee,   etc.   R.   R.   v.   Oham-  U.  S.  115.  40  L.  ed.  638,  16  Sup.  Ct. 

berlain.  6  Wall.  750,  18  L.  ed.  861.  Rep.  541;  Pacific  R.  R.  v.  Missouri  P. 

5Maitland  v.  Gibson.  79  Fed.   136;  R.  R.  Ill  U.  S.  522,  28  L.  ed.  498,  4 

Wonderlv   v.   Lafavette   Co.   77   Fed.  Sup.  Ct.  Rep.  583;   Foster  v.  Mans- 

665.          '                    "  field,    etc.    R.    R.    36    Fed.    627,    628; 

eShainwold  v.  Lewis.  69  Fed.  494.  Symmes  v.  Union  T.  Co.  60  Fed.  855. 

TCity  of  New  Orleans  v.  Fisher,  180  KO'Rrien  Co.  v.  Brown.  1  Dill.  588, 

U.  S.  18.5,  45  L.  ed.  485,  21  Sup.  Ct.  Fed.  Cas.  Xo.  10,399. 

Rep.  347.  laOsborn  v.  Michigan,  etc.  R.  R.  2 

sHatcher  v.  Hendrie,   etc.  Co.   133  Flip.  503,  Fori.  Cas.  No.  10,594. 

Fed.   267.   68  C.   C.  A.   19.  isRa^ton  v.   Sharon,   51    Fed.   712. 

sMercantile    Trust    Co.    v.    Kana-  i^Harwod  v.  Railroad,  17  Wall.  80, 

wha,  etc.  R.  R.  39  Fed.  337;  Winter  21   L.   ed.   558;   Wicklifi-e  v.   Eve,   17 

v.    Swinburne,    8    Fed.    50,    10    Bi^*.  How.  470,  15  L.  ed.  163. 

35 


S   3   [f]  FEDERAL   JURISDICTION   IN  GENERAL.  [Code  Fed. 

process  and  to  annul  an  agreement  subsequent  to  the  judgment  has  been 
held  not  maintainable,  because  adequate  remedy  existed  at  law  by  eject- 
ment.! 8  The  circuit  court  rendering  a  judgment  may  entertain  a  suit 
to  impeach  same  though  between  two  aliens.19 

[f]     Injunction  against  actions  at  law  or  other  proceedings. 

Bills  of  injunction  against  judgments  in  the  Federal  courts  are  deemed 
dependent,  and  ancillary  to  the  original  cause.20  Hence  the  Federal  court 
rendering  judgment  in  ejectment  may  entertain  a  bill  to  restrain  its  en- 
forcement as  ancillary  to  the  ejectment  case;i  or  permit  a  landlord  to 
come  in  and  open  a  judgment  in  ejectment. 2  So  it  may  entertain  bill  to 
enjoin  garnishment  proceedings  on  a  judgment  fraudulently  obtained  at 
law,  regardless  of  citizenship;  3  to  enjoin  execution  of  a  judgment  on  writ 
of  entry; -t  to  enjoin  the  assignment  of  a  judgment;  5  to  enjoin  execution 
and  for  permission  to  intervene  in  the  action  at  law; 6  to  restrain  enforce- 
ment of  judgment  because  complainant  not  properly  served;  t  to  prevent 
marshal's  sale  on  foreclosure.8  But  where  the  bill  joins  many  new  parties 
and  is  not  merely  to  restrain  execution,  but  mainly  seeks  the  establish- 
ment of  an  equitable  title  it  is  not  sustainable  as  ancillary. 9 

A  bill  on  the  equity  side  of  the  court  to  enjoin  the  prosecution  of  ac- 
tions at  law  in  the  same  court  is  ancillary  and  maintainable  regardless  of 
citizenship.il  Ejectment  proceedings  may  be  thus  enjoined  by  a  bill  seek- 
ing also  the  cancelation  of  certain  deeds  as  a  cloud  on  title.  12  A  bill 
for  reformation  in  equity  is  ancillary  to  an  action  on  the  law  side  of  the 
court. 13  Proceedings  on  a  creditors  bill  have  also  been  enjoined  on  an 
ancillary  application.!  *  An  ancillary'  bill  is  maintainable  against  pro- 
ceedings in   a  number  of   cases   at   law   to   prevent   multiplicity   of   suits 

isYeatman    v.    Bradford,    44    Fed.  5 Thompson  v.  McRevnolds,  29  Fed. 

538.  657. 

isLacassagne  v.  Chapuis,  144  U.  S.  ^McDonald    v.    Seligman,    81    Fed. 

126,  36  L.  ed.  368,  12  Sup.  Ct.  Rep.  753. 

659.  TBrown  v.  Walker,  84  Fed.  532. 

2  0Dunlap  v.  St«tcon,  4  Mason,  349,  SBroadis   v.   Broadis,   86   Fed.   951, 

Fed.  Oas.  No.  4,164;    Krippendorf  v.  954. 

Hyde,  110  U.  S.  285,  28  L.  ed.  147,  4  sSterling  v.  Barnwall,  12  Fed.  324. 

Sup.  Ct.  Rep.  27;   Sims  v  Guthrie,  9  nCortes    Co.    v.    Thannhauser,    9 

Cranch,  25,  3  L.  ed.  642;  DeViginer  V.  Fed.    227,   20    B^atchf.    59;    Hauf    v. 

New  Orleans,   16  Fed.   11,  4  Woods,  Wilson,    31    Fed.    384;    Widaman    v. 

206.  Hubbard,  88  Fed.  806,  812;  St.  Lukes 

iJohnson    v.   Christian,    125    U.    S.  Hospital  v.  Barclay,   3   Blatchf.   259, 

646,  31   L.   ed.  821,  8   Sup.  Ct.   Rep.  Fed.  Cas.  No.  12,241:  South  P.  O.  Co. 

1135;   Webb  v.   Barnwall,   116   U.   S.  v.  Calf  Creek,  etc.  Co.  140  Fed.  507; 

193,  29  L.   ed.   595,   6  Sup.  Ct.  Rep.  Campbell  v.  Golden  M.  Co.   141  Fed. 

350;   Dunn  v.  Clarke,  8  Pet.   1,  8  L.  610. 

ed.  845.  i2Smythe    v.   Henry,   41    Fed.    705 

2King  V.  Davis,  137  Fed.  198.  713. 

3 Jones   V.  Andrews,   10  Wall.   333,  isRosembaum  v.  Council,   etc.   Ins. 

19  L.  ed.  935.  Co.  37  Fed.  728. 

4Dunlap  V.  Stetson,  4  Mason.  349,  i^Bradshaw    v.    Miners'    Bank,    81 

Fed.  Cas.  No.  4,164.  Fed.  902,  26  C.  C.  A.  673. 

36 


Procedure]  A2SCILLARY    JURISDICTION.  §   3    [h] 

whore  the  defense  in  all  was  the  same  and  the  interest  of  all  a  common 
one.  15 

[g]     Enforcement  of  liability  on  bond  given  in  original  cause. 

An  action  on  an  undertaking  given  to  stay  proceedings  pending  motion 
for  new  trial,  is  ancillary  and  cognizable  by  the  court  in  which  the  cause 
was  pending.i  The  Federal  court  will  entertain  ancillary  jurisdiction  re- 
gardless of  citizenship,  in  an  action  on  an  appeal  bond  given  therein ;  - 
on  a  bond  staying  execution ;  3  on  the  statutory  liability  of  the  endorser 
of  a  writ  issued  by  such  court;*  on  a  rejilevin  bond; 5  on  an  attachment 
bond;  6   and  on  a   forthcoming  bond  given   in   attachment   proceedings." 

[h]     Proceedings    to    redress   abuse   or   misapplication   of   Federal   court's 

process. 
The  leading  case  upon  this  branch  of  the  ancillary  jurisdiction,  was 
concerned  with  a  conflict  between  State  and  Federal  courts  growing  out 
of  a  Federal  attachment  claimed  to  be  wrongful,  and  against  which  re- 
lief was  sought  in  the  State  court.  That  case  laid  down  the  principle 
that  a  bill  filed  on  the  equity  side  of  the  Federal  court  to  prevent  in- 
justice or  an  inequitable  advantage  under  its  mesne  or  final  process 
is  not  original  but  ancillary,  and  that  such  a  bill  was  the  proper  way 
for  a  claimant  of  property  attached  by  the  marshal  on  process  from  the 
circuit  court  to  establish  his  right.io  It  is  not  proper  for  State  court  to 
attempt  to  replevy  property  held  by  the  marshal  either  under  attach- 
ment or  execution.il  Later  cases  have  also  recognized  the  propriety 
of  other  proceedings  less  formal  than  bill  in  equity, 12  such  as  petition 
of  intervention,  motions  supported  by  affidavits,  and  interpleaders  at 
law.13  If  the  claimant  proceed  by  bill  in  equity,  appeal  and  not  writ  of 
error  is  the  proper  mode  for  obtaining  a  review.i*  The  attachment  laws 
of  many  States  provide  a  summary  mode  for  determining  claims  to  at- 
tached property  and  the  Federal  courts  usually  follow  such  practice  and 
afford  ancillary   relief   in  the   mode   prescribed  by   the   local    law   and   le- 

iBVirginia-Carolina    Chem.    Co.    v.        nFreeman  v.  Howe,  24  How.  450, 

Home  Ins.  Co.  113   Fed.   1,  51   C.   C.  16  L.  ed.  749,  752;  Covell  v.  Heyman, 

A.  21,  12G  Fed.  1002.  1003.  Ill  U.  S.  170,  28  L.  ed.  390,  4  Sup.  Ct. 

iJVierchants,   etc.   Bank   v.   Leland,  Rep.  .355. 
38  How.  Pr.  31,  Fed.  Cas.  No.  9,452.  i2Krippendorf  v.  Hyde,  110  U.   S. 

2 Arnold  v.  Frost.  9  Ben.  207,  Fed.  276,   28   L.   ed.    145,   4   Sup.   Ct.  Rep. 

Cas.   No.   558;    Seymour   v.    Phillips,  27. 
7  Biss.  400,  Fed.  Cas.  No.  12,089.  isQumbel  v.  Pitkin,  113  U.  S.  545, 

3Lamb   v.   Ewing,   54   Fed.    269,   4  28  L.  ed.  1129,  5  Sup.  Ct.  Rep.  616; 

C.  C.  A.  320.  S.  C.  on  second  appeal,  124  U.  S.  131. 

4Pullman's  P.  C.  Co.  v.  Washburn,  31   L.  ed.   374,  8   Sup.   Ct.  Rep.   383. 

66  Fed.  790.  In  an  early  case  replevin  in  the  cir- 

"Patterson  v.  Mather,  26  Fed.   31.  cuit  court  was  deemed  a  proper  pro- 

fiFiles  v.  Davis,  118  Fed.  405.  ceeding.     :Maddux   v.  Usher,  2  llask. 

"Reillv  V.  Holding,  10  Wall,  56,  19  261,   Fed.    Cas.   No.   8.936. 
L.  ed.  858.  i^Brochon  v.  Wilson.  91   Fed.  619, 

lOFreeman  v.  Howe,  24  How.  450,  34  C.  C.  A.  31. 
16  L.  ed.  749,  752. 

37 


§  3   [I]  FEDERAL  JURISDICTION   IN   GENERAL.  [Code  Fed. 

gardloss  of  citizenship  of  the  parties.is  Where  a  circuit  court  judgment 
was  reversed  by  the  Supreme  Court  for  want  of  jurisdiction,  it  has  been 
held  that  the  former  might  decree  restitution  of  the  property  taken 
under  execution  on  such  judgment  prior  to  appeal,  regardless  of  the  want 
of  jurisdiction.  16 

The  reports  also  contain  other  instances  of  the  ancillary  Federal  jurisdic- 
tion respecting  process  of  the  court  and  its  satisfaction.  An  ancillary 
bill  to  restrain  further  prosecution  of  garnishment  proceedings  has  been 
upheld;!  also  to  restrain  a  marshal  from  using  papers  seized  illegally 
.ipon  replevin  and  to  compel  him  to  return  them. 2  Judgment  entered  on 
motion  against  the  marshal  for  execution  money  not  paid  over,  has  been 
sustained. 3  So  where  corporate  stock  was  about  to  be  sold  on  execution 
by  the  marshal,  it  has  been  held  that  a  litigant  from  a  State  court  might 
maintain  a  bill  in  the  circuit  court  to  protect  his  rights  by  preventing 
tlie  threatened  sale.* 

[i]     Independent  action  against  marshal  for  abuse  of  process. 

The  exclusive  jurisdiction  of  the  Federal  court  prevents  replevin  in  the 
State  court  for  property  seized  by  the  marshal,  but  not  an  action  of 
trespass,  since  that  does  not  affect  the  possession  of  the  property; 6  nor 
does  it  prevent  an  action  on  the  marshal's  bond.'i' 

[jj     Ancillary  matters  in  State  court  not  removable. 

It  results  from  the  doctrine  of  the  ancillary  nature  of  proceedings  to 
try  claims  to  attached  property,  that  such  proceedings  in  a  suit  in  the 
State  court  are  not  removable  to  the  Federal  tribunal  upon  grounds  of  di- 
verse citizenship. 5  But  where  removal  would  not  result  in  a  conflict  of 
jurisdiction  because  the  res  in  controversy  was  in  possession  of  a  State 
court,  the  right  to  remove  to  a  Federal  tribunal  for  diverse  citizenship  will 
not  be  denied  when  a  separate  suit  or  controversy  really  arises  in  the 
course  of  State  court  proceedings.  Thus  when  a  proceeding  to  set  aside  a 
State  court  judgment  may  be  taken  by  original  suit  in  the  State  court  and 

isClarke   v.    Matfchewson,    12    Pet.  4New     York     Commercial     Co.    v. 

164,   172,   9  L.   ed.   1041;    Gumbel   v.  Franci?*  S3  Fed,  769,  28  C.  C.  A.  199. 

Pitkin,  124  U.  S.   131,  3.1  L.  ed.  374,  eCovell  v.  Heyman,  111  U.  S.  176, 

8  Sup.  Ct.  Rep.  387;   Bates  v.  Davs,  28  L.   ed.   390,  4  Sup.  Ct.  Rep.  355; 

17  Fed.  lb?,  5  McCrary,  342.  Buck  v.  Colba.th,  3  Wall.  334,  18  L. 

leNorthwestern  Fuel  Co.  v.  Brock,  ed.  257.                                  ,     ^.   ^    ,„ 

139  U.  S.  216,  35  L.  ed.  152,  11  Sup.  oJt    T^^-'d^'"'rf'  i       9«?' 

Ct.  Rep.  523.     This   ease  is   sustain-  -\l:^'{-  l^'l  *  ^"P  ^*-  ?,^P-  f^^J     ,« 

,,          J       lu         •     •   1         c         -n      ,  9First  Isat.   Bank   v.   TurnbuU,   16 

able  under  the  pimciples  of  ancillary  ^^,^^j,            ^1  L.  ed.  296;  DuVivier  v. 

jurisdiction    though   the   doctrine    is  Hopkins,  116  Mass.  125,  17  Am.  Rep. 

not  invoked  by  the  court.  ^^{.    ^^^^,1   ^,     Cincinnati,   etc..   Con- 

1  Jones  v.  Andrews.  10  Wall.  327,  19  struction  Co.  9  Fed.  351,  10  Biss.  555; 

f-  ed.  935.  Poole    ^     Thatcherdeft.    19    Fed.    49: 

2Gibbs  V.  Usher,  Holmes  348,  Fed.  Hospes  v.  Car  Co.  22  Fed.  565;  Ladd 

Cas.  No.  5,387.  v.  West.  55  Fed.  353;  Coeur  D'Alene 

sGwin   V.    Breedlove,    2    How.   29,  Ry.  v.   Spalding,  93  Fed.   280,   35  C. 

11  L.  ed.  167.  C.  A.  295. 

38 


i 
I 


Procedure]  JURISDICTION   OF  ENTIRE   CAUSE.  §   4 

is  not  a  mere  supplementary  proceeding,  sucli  suit  may  be  removed  to  the 
Federal  court. lo  So  also  a  removable  suit  or  controversy  may  arise  in  the 
progress  of  probate  proceedings  in  a  State  court,  n 

[k]     Ancillary  bills  not  original — substituted  service. 

Mr.  Justice  Story  termed  a  bill  to  enjoin  enforcement  of  a  judgment 
"dependent."  14  The  cases  for  the  most  part  are  content  to  point  out 
that  while  bills  in  ancillary  proceedings  would  often  be  termed  original 
under  the  ordinary  rules  of  equity  pleading,  they  are  not  properly  such 
*'with  reference  to  the  line  which  divides  the  jurisdiction  of  the  Federal 
courts  from  that  of  the  State  courts."i5  Substituted  service  of  process  in 
such  proceedings  is  accordingly  upheld, 1 6  though  the  court  may  order 
personal  service  as  well. 1 7  Mere  notice  without  subpoena  has  been  sus- 
tained when  preceeding  by  bill  was  really  unnecessary.!  8  The  substituted 
service  should  have  the  sanction  of  an  order  of  court.is  Service  of  sub- 
poena in  bill  of  review  upon  the  United  States  district  attorney  has  been 
upheld  as  service  upon  the  United  States.20 

£1]     Ancillary  cases  appealable  to  circuit  court  of  appeals. 

Since  causes  in  which  Federal  jurisdiction  is  based  on  diverse  citizen- 
ship are  appealable  to  the  circuit  court  of  appeals,  whose  judgment  is 
final,  the  appeal  in  ancillary  proceedings  growing  out  of  diverse  citizen- 
ship, follows  the  same  course. i 

§  4.     Federal  courts  power  to  decide  non-Federal  questions  and 
entire  controversy. 
When  jurisdiction  arises  from  the  character  of  the  parties,  the 
questions  involved  are  mainly,  if  not  entirely,  of  a  local  or  non- 

lOGaines  v.  Fuentes.  92  U.  S.  10,  23  ers'  L  &  T.  Co.  v.  Houston,  etc.  R.  R. 

L.  ed.  524;  Barrow  v.  Hunton,  99  U.  44    Fed.    115;    Shainwald   v.   Davids, 

S.  80,  25  L.  ed.  407;  Cowley  v.  North-  69  Fed.  701,  703. 

ern  Pac.  R.  R.   159  U.   S.  579.  40  L.        iTCortes  Co.  v.  Thannhauser,  9  Fed. 

ed.   263,   16   Sup   Ct.   Rep.    130.     See  220,  228,  20  Blatchf.  59. 
also  under  removal   of  causes,   post,        isMaitland  v.  Gibson,  79  Fed.  136. 
§134.  isGregorv  v.  Pike.  79  Fed.  520,  2.5 

iiSee  ante,    §   2.    [w].  C.  C.  A.  48';  Pacific  R.  R.  v.  ilissouri 

KClarke  v.^Mathewson,  12  Pet.  172,  P.  R.  R.  3  Fed.  772,  1  McCrary,  647. 
9  L.  ed.   1044.  zoBush  v.   United  States,   13   Fed. 

isMilwaukee  etc.  R.  R.  v.  Soutter,  627,  8  Sawv.  322;   Rouse  v.  Letcher, 

2  Wall.  609,  17  L.  ed.  895.     And  see  156  U.  S.  47,  39  L.  ed.  341,  15  Sup.  ( t. 

Krippendorf  v.  Hvde.  110  U.  S.  276,  Rep.  266, 

28  L.  ed.  146.  4  Slip.  Ct.  Rep.  27;  Pa-         iRouse  v.  Hornsby,  161   U.  S.  5SS. 

cific  R.  R.  v.  Missouri  etc.  R.  R.  Ill  40  L.  ed.   818,   16  Sup.  Ct.  Rep.   610, 

U.  S.  505,  28  L.   ed.  498,  4  Sup.  Ct.  Gregory  v.  Van  Ee,  160  U.  S.  043,  40 

Rep.  583;   Pope  v.  Louisville,  etc.  R.  L.    ed.    567,    16    Sup.    Ct.    Rep.    431; 

R.   173  U.   S.  573,  43  L.   ed.  814,   19  Carev  v.  Railwav  Co.  161   U.  S.  115. 

Sup.  Ct.  Rep.  501.  40  L.  ed.  038,  10  Sup.  Ct.  Rep.  537; 

i6Dunn   v.  Clarke,   8  Pet.   1,  8  L.  Pope  v.  Louisville  etc.  R.  R.  173  U. 

ed.  845;  Milwaukee  etc.  R.  R.  v.  Sout-  S.  573,  43  L.  ed.  814,  19  Sup.  Ct.  Rep. 

ter,  2  Wall.  609,  17  L.  ed.  895;  Farm-  501.     »ee  post,  §  77. 

39 


§  4    [a]  FEDERAL   JURISDICTION    IN   GENERAL.  [Code  Fed. 

Federal  nature,  and  the  Federal  courts  have  as  complete  a  power 
to  decide  upon  them  as  have  the  local  courtsJ^^  It  is  a  settled 
principle  that  Congress  has  power  to  provide  a  Federal  tribunal 
for  all  cases  involving  a  Federal  question,  even  though  other  ques- 
tions of  law  and  fact  not  in  themselves  of  Federal  cognizance  are 
involved. '^''^  This  being  so  it  is  obviously  proper  that  jurisdic- 
tion should  extend  to  the  entire  case.  Hence,  where  jurisdiction 
of  a  Federal  court  has  rightfully  attached,  either  originally  or  by 
removal  before  trial,  because  a  Federal  right  is  involved,  it  ex- 
tends to  the  whole  case  and  to  all  issues  raised  whether  Federal  or 
non-Federal,  and  the  court  has  jsower  to  decide  upon  all  ques- 
tions, i^*^^  But  when  a  cause  is  tried  in  the  State  court,  review  in 
the  Federal  supreme  court  is  confined  to  the  validity  of  the  Federal 
right  alleged  to  have  been  impaired  in  the  State  tribunal. '^'^^ 
Author's  Section. 

[a]  Where  jurisdiction  rests  on  character  of  parties. 

Where  Federal  jurisdiction  rests  upon  diverse  citizenship  the  Federal 
court  is  an  auxiliary  State  court  and  has  the  same  power  as  the  latter  to 
decide  the  whole  case  and  to  examine  and  decide  the  validity  of  any 
ordinance  or  law  under  the  State  constitution  as  well  as  under  the  Federal 
Constitution.!  Nor  is  the  scope  of  the  jurisdiction  narrowed  by  the  fact 
that  a  Federal  question  arises  incidentally  in  the  progress  of  the  cause.2 

[b]  Jurisdiction  not  ousted  by  non-Federal  questions. 

Where  jurisdiction  rests  upon  a  Federal  question  it  is  not  ousted  by  the 
existence  of  non-Federal  questions.  This  principle  was  laid  down  in  an 
early  case  and  is  obviously  necessary  as  otherwise  the  mandate  of  the 
Constitution  that  jurisdiction  should  extend  to  "all"  cases  arising  under 
Federal  laws  etc.,  would  generally  be  defeated. 3  A  case  "arises  under" 
the  Federal  Constitution  and  laws  whenever  its  correct  decision  depends 
upon  the  right  construction  of  either,*  so  that  it  matters  not  how  many 
other  questions  be  involved,  provided  a  Federal  question  is  one  ingredient 
of  the  mass. 5  The  intent  was  to  give  those  claiming  Federal  rights  a 
trial  in  a  Federal  court. ^ 

iFallbrook  Irrig.  Dist.  v.  Bradley,  ed.  487,  4  Sup.  Ct.  Rep.  437;   South- 

164  U.  S.  154,  41  L.  ed.  369.  17  Sup.  em  Pac.  R.  R.  v.  California,  118  U. 

Ct.  Rep.  61.  S.  112,  30  L.  ed.  104.  6  Sup.  Ct.  Rep. 

2Jew  Ho  v.  Williamson,   103   Fed.  993. 
10.     See  note    [c]    infra.  5]\Iayor    v.    Cooper,    6    Wall.    252, 

sOsbom  V.  Bank  of  United  States,  18  L.  ed.  8.53;  Railroad  Co.  v.  Missis- 

9  Wheat.  823,  G  L.  ed.  204,  224.  sippi,   102   U.    S.    141.   2G   L.   ed.    98: 

^Cohens  v.  Virginia.  6  Wheat.  379,  Tennessee  v.  Davis.  100  U.  S.  2G4,  25 

5  L.  ed.  285;  Railroad  Co.  v.  Missis-  L.  ed.  050. 

sippi,    102   U.    S.    140.   20   L.   ed.    98;         eQeborn  v.  Bank  of  United  States. 

Ames  V.  Kansas,  111  U.  S.  449.  28  L.  9    Wheat.    823,    6    L.    ed.    204.    224. 

40 


Piocedure]  JURISDICTION  OF  ENTIRE   CAUSE.  §   4   [d] 

[c]     Jurisdiction  of  entire  cause. 

It  is  a  general  principle  of  law  that  a  court  having  jurisdiction  may 
decide  every  question  which  occurs  in  a  cause. ^  The  inconvenience  of 
confining  Federal  courts  to  the  examination  of  Federal  questions  in 
cases  where  the  jurisdiction  rests  thereon,  made  the  adoption  of  this 
principle  in  the  administration  of  their  jurisdiction,  of  obvious  propriety.* 
To  guard  against  an  undue  extension  of  Federal  jurisdiction,  however,  the 
coui-ts  have  found  it  necessary  to  require  that  the  Federal  question 
upon  which  Federal  jurisdiction  is  invoked  shall  appear  plainly  from 
plaintiff's  statement  of  his  case  in  the  complaint. &  Otherwise  litigants 
could  bring  almost  any  cause  into  the  Federal  court  upon  plausible  al- 
legations of  a  Federal  question.  In  a  recent  case  at  circuit,  the  question 
of  the  validity  of  a  State  law  under  the  State  Constitution  was  avoided 
on  grounds  of  proprietj^,  where  not  really  necessary  to  a  decision.io 
There  can  be  no  doubt,  however,  of  the  power  of  Federal  courts  to 
determine  the  validity  of  State  statutes  under  the  State  constitution, 
where  the  question  is  involved  in  the  decision  of  a  cause  on  trial  before 
them. 11  "Where  a  controversy  when  commenced  involves  a  substantial  Fed- 
eral question,  its  elimination  during  the  progress  of  the  cause  does  not 
prevent  the  court  deciding  other  issues  under  the  State  law  and  constitu- 
tion.12  So  where  it  appears  that  the  amount  in  controversy  really  falls 
below  tlie  sum  required  for  jurisdictional  purposes,  the  jurisdiction  Avhich 
rightfully  attached  imder  an  averment  of  sufficient  value  in  dispute,  is  not 
ousted. 13  It  has  been  intimated  that  in  cases  where  Federal  jurisdiction  is 
invoked  on  the  ground  that  a  State  ordinance  or  law  violates  the  Federal 
Constitution,  the  Federal  court  may  not  examine  its  repugnancy  to  the 
State  constitution. 1*     This  seems  unsound. 

[dj     Non-Federal  questions  not  examinable  on  error  to  State  court. 

In  exercising  its  right  of  reviewing  State  court  decisions,  the  Supreme 
court  has  recognized  the  propriety  of  confining  its  examination  of  the 
record  to  the  correctness  of  the  decision  on  the   Federal  question  raised 

But   this   is   not   secured   under   the  4,828;  Whelan  v.  New  York,  etc.   R. 

law  as  it  exists  to-day,  in  cases  where  R.  3.5  Fed.  859. 

the  defense  rests  on  Federal  grounds.  sPost.  §  129. 

^Elliott   V.    Peirsol,   1   Pet.    340,   7  loPeoples  Gas,  etc.  Co.  v.  Chicago, 

L.  ed.  170;  Grignon  v.  Astor,  2  How.  114  Fed.  384. 

343,  11  L.  ed.  283;  Wilcox  v.  Jackson.  uSatterlee  v.  Matthewson,  2  Pet. 

13  Pet.  511,  10  L.  ed.  264;  In  re  Saw-  414.  7  L.  ed.  458. 

yer,   124  U.  S.  220,  31  L.  ed.  402,  8  i2Miohigan   R.  R.   Tax  Cases,   138 

Sup.  Ct.  Rep.  493.  Fed.    223;    Omaha  Horse   Rv.   Co.   v. 

sOsbom  V.  Bank  of  United  States,  Cable  etc.  Co.  32   Fed.   727;'  Peoples 

9    Wheat.    738,    823,    6    L.    ed.    204;  S.  Bk.  v.  Layman,  134  Fed.  635. 

Mavor  V.  Cooper.   6   Wall.   247,   2.52,  isCowlev  v.  Xorthern  Pacific  R.  R. 

18   L.  ed.   851;    Railroad  Co.  v.   Mis-  159  U.  S.  582,  40  L.  ed.  263.  16  Sup. 

sissippi,  102  U.  S.  135,  141,  20  L.  ed.  Ct.  Rep.  127;  Scott  v.  Donald,  165  U. 

OS;  New  Orleans  N.  W.  &  La.  Sucjar  S.  89,  41  L.  ed.  632,  17  Sup.  Ct.  Rep. 

Co.  125  U.  S.  32,  31  L.  ed.  607,  8  Sup.  266;   Stillwell.   etc.  Co.  v.  Williams- 

Ct.    Rep.    741 :    Nashville    etc.    R.    R.  ton  Oil  Co.  80  Fed.  70. 

V.  Tavlor.  86  Fed.  177;  Fisk  v.  Union  i-i.Jew  Ho  v.  Williamson.  103  Fed. 

Pac.  R.  R.  8  Blatchf.  248,  Fed.  Cas.  10. 

41 


i  5   [a]  FEDERAL  JURISDICTION  IN   GENERAL.  [Code  Fed. 

and  decided.15     The  provision  of  the  statute  that  review  shall  be  by  writ 
of  errorifi  confines  the  examination  to  questions  of  law. 

§  5.     States  may  not  impair  or  regulate  Federal  jurisdiction  or 
procedure. 

Having  delegated  to  the  general  government  jurisdiction  over 
certain  subject  matters  and  between  certain  parties,  the  States  may 
not  regulate  or  impair  or  forbid  any  part  of  that  jurisdiction. 
This  principle  forbids  any  attempt  by  the  States  to  confer  juris- 
diction, or  prescribe  the  modes  of  proceeding  in  Federal  courts,  or 
the  remedies  enforced  ;f^^"'^'^^  or  to  restrict  the  right  of  removal 
where  permitted  by  the  Federal  Constitution  and  laws;"^^'  or  to 
confer  general  rights  enforceable  only  in  the  State  courts  and  for- 
bidden to  parties  suing  in  the  Federal  courts. ^^^ 
Author's  Section. 

[a]     State  regulation  of  Federal  jurisdiction  or  modes  of  proceeding. 

The  States  have  no  power  to  confer  jurisdiction  on  the  Federal  courts 
nor  limit  or  impair  the  jurisdiction  granted  by  Congress, 20  or  prescribe  ex- 
clusive modes  of  invoking  it.i  The  forms  and  modes  of  proceeding  in  the 
Federal  courts  are  not  subject  to  State  regulation.2  The  modes  of  redress 
furnished  by  State  law  do  not  bind  the  Federal  courts  in  controversies 
between  citizens  of  different  States  and  aliens. 3  While  Congress  has 
declared  that  the  local  procedure  shall  be  followed  in  actions  at  law  in 
Federal  courts, 4  the  State  laws  respecting  process  and  procedure  can 
have  no  effect  proprio  vigore,  in  the  Federal  courts. 5  The  regulation  of 
Federal   practice,    procedure    and   remedies    is    for   Congress,    and    for   the 

isPost,  §  2084.  iBarber  etc.  Co.  v.  Morris,  132  Fed. 

lepost,  §  38.  945,  06  C.  C.  A.  55. 

20United  States  v.  Peters,  5  Cranch,  ^Keary  v.  Farmers  etc.  Bk.  16  Pet. 

138.  3   L.  ed.   53;    Pavne  v.  Hook,  7  ^^'  ^0  L.' ed.  897;  Beers  v.  Haughton, 

Wall.   425,   19  L.   ed.  "261;    Greely   v.  ^   Pet.    359.    9    L.    ed.    145;    Clark    v. 

Townsend',    25   Cal.   604 :' Steamboat  Smith,    13   Pet.   203,   10  L.   ed.    123; 

Orleans  v.  Phoebus,  11  Pet.  184,  9  L.  Camp1)ell  v.  Boyreau,  2i  How.  227,  16 

ed.  677;  Union  Bk.  v.  Jollv,  18  How.  L.  ed.  96;  Kelsey  v.  Forsyth,  21  How. 

503,  15L.  ed.  472;  Toland  v.  Sprague,  §8,  16  L.  eel.  .32. 

12  Pet.  330,  9  L.  ed.  1093;   Hyde   v.  '^nion  Bank   v.   Vaiden,   18   How. 

Stone,   20  How.    175,    15   L.   ed.    875;  f^^'  \^«  V           .in     f.f  "1  J' t    "'V 

Cowles  V.  Mercer  Co.  7  Wall.  122,  19  ^l^:'    A  ,        %.        '90  i'         ,--  '1. 

T      J   or>    T.                TT     1     -  1117  11    (or.  509;  Hyde  v.  Stone.  20  How.   l/o,  15 

i1;t'^-   .'o^n-T'^-^"     'o'  ^'^^O'  L.  ed.  874;   Pavne  v.  Hook,  7  Wall. 

19  L.  ed.  260;  Insurance  Co.  v.  Morse.  430^  jg  l.  ed.  260;  Chicot  Co.  v.  Shev- 

20  Wall.  453,  22  L.  ed.  365;  Southern  ...Q^d,  148  U.  S.  5.34,  37  L.  ed.  546. 
Pac.  Co.  V.  Denton.  146  U.  S.  209.  36  13  gi,'     (^'t   j^pp   ,595 

L.  ed.  943,  13  Sup.  Ct.  Rep.  44;  Lead-        4Post,  §  900 

ville  Coal  Co.  v.  McCreery,  141  U.  S.  sOgden'v.  Saunders,  12  Wheat.  367, 
477,  35  L.  ed.  824,  12  Sup.  Ct.  Pvop.  6  L.  ed.  600;  Duncan  v.  Darst.  1  How. 
28;  Bigelow  v.  Nickerson,  70  Fed.  120,  305,  11  L.  ed.  139;  The  Mayor  v.  Lord, 
17  CCA.  1,  30  L.R.A.  336.  9  Wall.  413,  19  L.  ed.  707. 

42 


Procedure]  STATES  MAY  NOT  IMPAIR  OR  REGULATE.  |   5   [b] 

Federal  courts,  under  its  control.*  Neither  the  fundamental,  nor  the 
statutory  State  law  can  forbid  the  practice  prevailing  in  the  Federal 
courts  of  charging  juries  as  to  matters  of  fact;  7  nor  is  the  State  practice 
as  to  mandamus  proceedings  effective  in  the  Federal  court  unless  regular- 
ly adopted. s  The  States  may  not  control  or  discriminate  against  Fed- 
eral judgments  as  respects  the  period  within  which  suit  may  be  main- 
tained thereon;  and  while  they  may  limit  suit  on  judgments  to  a  cer- 
tain time,  the  judgments  of  Federal  courts  within  the  State  must  be 
as  favorably  treated  as  domestic  State  judgments. 9  The  provision  of 
State  law  tluit  no  lis  pendens  sliall  bind  a  purchaser  unless  recorded  in 
a  specified  waj'  is  not  operative  on  the  Federal  courts.io 

[b]     In  equity  cases. 

In  equity  causes  the  jurisdiction  and  procedure  of  Federal  courts  are 
uniform  througliout  the  United  States  and  not  subject  to  restraint  or  regu- 
lation by  the  States.  12  The  fact  that  the  State  has  abolished  the  distinc- 
tion between  law  and  equity  can  make  no  difference  in  the  Federal  court 
there  sitting.i"  That  the  State  has  provided  a  remedy  at  law  cannot 
oust  Federal  equity  jurisdiction  if  the  cause  is  within  recognized  grounds 
of  Federal  equity  cognizance  ;14  nor  can  the  fact  that  the  State  permits 
recourse  to  equity,  justify  proceeding  upon  the  equity  side  of  the  Fed- 
eral court  if  by  its  practice  the  proceeding  is  regarded  as  properly  at 
law.  15  The  practice  of  the  Federal  courts  as  to  deficiency  decree  on  fore- 
closure is  not  subject  to  State  control,i6  nor  the  allowance  of  costs  and 
attorney's  fees   to   a  trustee  therein.i'?      The  Federal  courts  preserve  the 

«Noonan  v.  Lee,  2  Black,  .509,  17  L.  S.  200,  37  L.  ed.  1052;  14  Sup.  Ct.  Rep. 

ed.  278;  St.  Louis  etc.  Rv.  v.  Vickers,  75;  United  States  v.  Wilson.  118  U. 

122  U.  S.  3G3,  30  L.  ed.'llGl;  Dodge  S.  90,  30  L.  ed.  110,  6  Sup.  Ct.  Rep. 

V.   Tallevs,  144   U.   S.   4.57,  36  L.  ed.  991;    Scott  v.  Neelv,   140   U.   S.   110, 

501.  12  Sup.  Ct.  Rep.  728.  Ill,  35  L.  ed.  358.   11   Sup.  Ct.  Rep. 

7St.  Louis  etc.  Ry.  v.  Vickers,  122  712;    Cates  v.   Allen,    149   U.    S.   456, 

U.  S.  363,  30  L.  ed!  1161,  7  Sup.  Ct.  459,  37  L.  ed.  804,   13  Sup.  Ct.  Rep. 

Rep.   1216.  883,  977;  Rollins  v.  Brierfield  Coal  Co. 

sThe  Mayor  v.  Lord,  9  Wall.  413,  19  150  U.  S.  379,  37  L.  ed.  1113,  14  Sup. 

L.  ed.  704.  Ct.  Rep.  127. 

nietcalf  v.  Watertown,  153  U.  S.        i4Smvth  v.  Ames.   169   U.   S.  516, 

679,  38  L.  ed.  861,  14  Sup.  Ct.  Rep.  42  L.  ed.  819,  18  Sup.  Ct.  Rep.  418; 

951.  Ray  v.  Tatum,  72  Fed.  114,  18  C.  C. 

loKing  V.  Davis.  137  Fed.  223.  A.  *464;  Barrett  v.  Twin  City  Co.  118 

i2United     States     v.     Rowland,     4  Fed.    861;     Mississippi    Mills    Co.    v. 

Wheat.   115,  4  L.   ed.  526;    Kirbv  v.  Cohn,  150  U.  S.  207,  37  L.  ed.  1052, 

Lake  Shore  etc.  R.  R.  120  U.  S.'l37,  14  Sup.  Ct.  Rep.  75. 
138,  30  L.  ed.  569,  7  Sup.  Ct.  Rep.  430;        1 5  Whitehead  v.  Shattuck,  138  U.  S. 

Dodge  V.   Woolsey,   18  How.  347,   15  151.  34  L.  ed.  873,   11   Sup.  Ct.  Rep. 

L.    ed.    401;    Creen   v.    Creighton,   23  276;    Scott  v.  Neely,    140   U.   S.   110, 

How.  105,  16  L.  ed.  419;  MoConihay  111,  35  L.  ed.  358,   11  Sup.  Ct.  Rep. 

V.  Wright,   121   U.   S.  206,  30   L.  ed.  712. 

932,  7  Sup.  Ct.  Rep.  940;  Ridings  v.        le^oonan  v.  Lee,  2  Black,  507.  17 

Johnson,    128    U.    S.    217,    32    L.    ed.  L.  ed.  278. 
401,  9  Sup.  Ct.  Rep.  72.  it  Dodge  v.  Tallevs,  144  U.  S.  457, 

isMississippi  Mills  v.  Cohn,  150  U.  36  L.  ed.  501,  12  Sup.  Ct.  Rep.  728. 

43 


5  5  [c] 


FEDERAL  JURISDICTION   IN   GENERAL. 


[Code  Fed. 


distinction  between  common  law  and  equity  as  recognized  and  defined 
in  England  at  the  time  of  the  revolution. is  But  when  the  creation  of  a 
new  equitable  remedial  proceeding  by  a  State,  establishes  a  new  equitable 
right  or  an  enlargement  of  existing  equitable  rights,  this  may  be  ad- 
ministered and  enforced  by  the  Federal  coiirt  sitting  in  equity. is  TIun 
is  so  because  in  all  controversies  where  jurisdiction  depends  wholly  upon 
diverse  citizenship  the  substantive  rights  administered  are  created  or 
exist  under  the  State  law.  It  is  only  the  mode  of  enforcement  that  is 
beyond  the  control  of  the  local  law. 

LcJ     In  admiralty. 

State  courts  cannot  enlarge  or  limit  the  admiralty  jurisdiction  of  the 
Federal  courts.i  They  cannot  confer  on  their  own  courts  the  cognizance 
of  admiralty  causes. 2  But  the  States  may  create  a  right  essentially  of  a 
maritime  nature,  such  as  a  .lien  for  repairs  in  the  home  port,  and  this  will 
be  enforced  in  the  Federal  court  in  admiralty 3  just  as  new  equitable 
rights  will  be  enforced  by  the  Federal  court  in  equity.  So  an  action  for 
death  by  marine  tort  given  by  a  State  statute  is  enforceable  in  ad- 
miralty.* 

[dj     In  criminal  cases. 

The  jurisdiction,  modes  of  procedure,  and  the  law  administered,  in 
criminal  trials  in  the  Federal  courts  are  altogether  independent  of  State 
control.  5  The  State  law  forbidding  comments  by  the  judge  on  the  facts 
in  his  charge  to  the  jury, 6   or  prescribing  the  modes  of  challenge,  or  of 


isMcCollum  V.   Eager,  2  How.  64,  Orleans  v.  Phoebus,  11  Pet.  184.  9  L. 

11  L.  ed.  179;  In  re  Sawyer,  124  U.  S.  ed.  677;  Smith  v.  Marvland,  18  How. 

209,  31  L.  ed.  402,  8  Sup.  Ct.  Rep.  482.  76.  15  L.  ed.  209. 

Scott  V.  Neely,  140  U.  S.  Ill,  35  L.  2Tavlor  v.  Carrvl.  20  How.  598. 
ed.  358;  11  Sup.  Ct.  Rep.  712;  White  605,  15  L.  ed.  1028;  The  Moses  Taylor, 
v.  Berry,  171  U.  S.  376,  43  L.  ed.  4  Wall.  427,  18  L.  ed.  397;  The  Hine 
199,  18  Sup.  a.  Rep.  917;  Thompson  y  Trevor,  4  Wall.  570,  571,  18  L.  ed. 
V  Railroad  Go's  6  Wall  137,  18  L.ed.  451.  ^j^g  Lottawanna,  21  Wall.  580, 
^65;  New  Orleans  v  Louisiana  etc.  22  L.  ed.  654;  In  re  Steamboat  Jo- 
Co.  129  L_.  S.  4b  32  L.  ed  60.,  9  ^^^.  39  ^  ^  Contra  see 
Sup.  Ct.  Ren.  223:  National  Surety  ,-r/  tt  i  o  n  m  i  --.^ 
Co.%.  State  Bank  120  Fed.  593,  56  Warner  v.  Uncle  Sam,  9  Cal  /26. 
C  C  A  657  ^The  Lottawanna,  21  Wall.  580,  22 
'isClarke  'v.  Smith,  13  Pet.  195,  10  ^-  ^^-  *^54.  S«e  post,  §  11,  note  [b]. 
L.  ed.  123;  Broderick's  Will,  21  Wall.  ^I"  re  Long,  etc.  Co.  5  Fed.  608; 
520,  22  L.  ed.  606;  Holland  V.  Challen,  The  City  of  Norwalk.  55  Fed.  105: 
110  U.  S.  24,  28  L.  ed.  55,  3  Sup.  Ct.  The  Transferer  No.  4.  61  Fed.  308. 
Rep.  495;  Dick  v.  Foraker,  155  U.  S.  9  C-  C.  A.  521;  The  Williamette,  70 
415,  39  L.  ed.  205,  15  Sup.  Ct.  Rep.  Fed.  878,  18  C.  C.  A.  366,  31  L.R.A. 
124;  Rich  v.  Braxton,  158  IT.  S.  405,  715. 
39  L.  ed.  1032,  15  Sup.  Ct.  Rep.  1017;        ^See  post  §§  15,  1537  et  seq,  1571 


Bardon  v.  Land,  etc.  Co.  157  U.  S. 
330,  39  L.  ed.  720,  15  Sup.  Ct.  Rep. 
650.    See  post,  §  10  note  [aa]. 


et  seq. 

sStarr  v.  United  States,  153  U.  S. 
625,  38  L.  ed.  841,  14  Sup.  Ct.  Rep. 


iThe  St.  Lawrence,  1  Black,  526,  919;  Allis  v.  United  States,  155  U 
527,  17  L.  ed.  180;  The  S.  E.  Rumbell,  S.  124,  39  L.  ed.  91,  15  Sup.  Ct.  Rep. 
148  U.  S.  12,  37  L.  ed.  345;  Steamboat    ,36;  Simmons  v.  United  States,  142  U. 

44 


Procedure!  STATES  MAY  NOT  IMPAIR  OR  REGULATE  S   5   [f] 

excepting   to   instructions,"   or  of  impaneling  grand  juries,?    have   no   ap- 
plicability to  Federal  criminal  trials. 

[e]     Attempts  to  restrict  right  of  removal. 

In  the  leading  case  on  this  question  the  State  of  Wisconsin  required 
foreign  insurance  companies  seeking  to  do  State  business,  to  agree  not 
to  remove  causes  for  trial  to  the  Federal  court.  This  agreement  was 
held  not  binding  upon  the  companies,  although  the  State's  power  to  im- 
pose conditions  upon  foreign  corporations  seeking  to  do  domestic  busi- 
ness was  admitted.9  The  rule  thus  established  has  since  been  adhered 
to;  10  although  its  effect  is  practically  nullified  by  a  recent  case  hold- 
ing that  under  the  power  to  impose  conditions  on  foreign  corporations  a 
State  may  validly  provide  for  forfeiture  of  a  right  to  do  domestic  busi- 
ness in  case  such  corporations  exercise  the  right  of  removal. n  In  other 
words  while  a  State  may  not  exact  such  a  stipulation  it  may  enforce  such 
a  penalty.  It  may  be  questioned  whether  this  decision  will  prove  a  final 
adjudication  of  the  matter.  Power  to  protect  the  jurisdiction  delegated 
by  the  States  to  the  Federal  government  must  necessarily  exist  in  some 
form  and  in  some  department;  in  Congress  if  not  in  the  courts. 

[f J     Attempts  to  limit  the  enforcement  of  rights  to  State  courts. 

When  a  general  right  of  action  is  conferred  by  State  law  it  cannot  be 
withdrawn  from  Federal  cognizance  by  enacting  that  it  shall  only  be 
enforced  in  a  State  court.  Thus,  where  a  I'ight  of  action  for  death  is  given 
by  State  statute,  it  can  be  enforced  by  any  Federal  court  within  the 
State  having  jurisdiction  by  diverse  citizenship  or  other  wise.  12  So  a 
law  requiring  counties  to  be  sued  in  the  county  courts,  cannot  oust 
Federal  jurisdiction. is  But  a  law  permitting  suit  against  the  State 
may  provide  that  the  suitor  must  resort  to  the  State  court  since  such  a 
suit  is  not  within  the  Federal  jurisdiction  and  would  only  be  there 
cognizable  upon  the  consent  of  the  State.i*  The  fact  that  the  State  law 
provides  for  the  bringing  of  will  contests  or  the  distribution  of  a  decedent's 

S.  148,  35  L.  ed.  969,  12  Sup.  Ct.  Rep.      uSecuritv  etc.  Ins.  Co.  v.  Prewitt, 

171.  202  U.  S.  246.  50  L.  ed.  1013,  26  Sup. 

7St.  Clair  v.  United  States,  154  U.  Ct.  Rep.   619.     See  also  United,  etc. 

S.  134,  38  L.  ed.  936,  14  Sup.  Ct.  Rep.  Ins.  Co.  v.  Cable,  98  Fed.  767.  39  C. 

1002,  1010.  C.  A.  264.     There  is  a  provision  en- 

sUnited  States  v.  Ambrose,  3  Fed.  forcing  such  a  penaltv  in  California. 

285.  See  Pol.  Code,  §  595." 

^Insurance  Co.  v.  Morse,  20  Wall.        i2Chicaffo.  etc.  R.  R.  v.  Whitton,  13 

445,  22  L.  ed.  365.  \vall.  270,  286.  20  L.  ed.  571;  Bigelow 

lODovle  V.  Insurance  Co.  94  U.  S.  v.  Xickerson,  70  Fed.  120,  17  C.  C.  A. 

538,  24  L.  ed.  148;   Barron  v.  Burn-  1,  30  L.  R.  A.  336. 
side  121  U.  S.  200.  30  L.  ed.  915,  7        isLincoln  Co.  v.  Liming,  133  U.  S. 

Sup.  Ct.  Rep.  931 ;  Southern  Pac.  Co.  530,  33  L.  ed.  766,   10  Sup.  Ct.  Rep. 

V.  Denton.  146  U.  S.  207.  .36  L.  ed.  943,  363;  Cunningham  v.  Ralls  Co.  1  Fed. 

13  Sup.  Ct.  Rep.  44;  Ooldey  v.  Morn-  455,  1  McCrarv.  117;  Hoover  v.  Craw- 

ini  News,   156  U.   S.   523.   39   L.  ed.  fora  Co.  39  Fed.  9. 
519,   15  Sup.   Ct.  Rep.   559;    Ashe  v.        i^Smith  v.  Reeves,  178  U.  S.  445, 

Union,  etc.  Ins.  Co.  115  Fed.  234.    Si'e  44  L.  ed.  1145,  20  Sup.  Ct.  Rep.  922. 
Allen  V.  Texas,  etc.  R.  R.  25  Fed.  515. 

45 


S   5   [f] 


FEDERAL   JURISDICTION    IN   GENERAL. 


[Code  Fed. 


estate,  in  the  State  probate  court  does  not  prevent  the  Federal  court 
taking  jurisdiction  if  diverse  citizenship  exists  and  the  proceeding  has 
resolved  itself  into  a  suit  at  law  or  in  equity.is  A  state  law  providing 
for  creditors  bill  in  the  State  chancery  court  may  be  invoked  by  a 
creditor  citizen  of  another  State  suing  in  the  Federal  court.  16  A  State 
law  regulating  the  venue  of  actions  cannot  affect  the  rules  as  to  place 
of  action,  enacted  by  Congress  for  the  Federal  courts. 1 7  A  State  law 
limiting  remedies  of  its  citizens  to  its  own  courts  cannot  prevent  citizens  of 
other  States  from  suing  in  the  Federal  courts. is  Hence  a  railroad  con- 
demnation suit  may  be  removed  to  the  Federal  court  though  the  State 
law  makes  them  cognizable  only  in  the  probate  court. is  The  provision  of 
a  State  statute  that  foreclosure  of  mortgage  given  by  a  guardian  shall 
be  in  the  county  court  cannot  defeat  Federal  jurisdiction.20  State  law 
authorizing  proceeding  in  rem  in  its  own  courts  for  enforcement  of  a 
lien  that  is  really  maritime  in  nature,  is  void  and  resort  must  be  had 
to  the  Federal  court  in  admiralty.  1  Requirement  of  a  State  law  that  a 
previous  order  of  court  is  a  necessary  preliminary  to  suit  on  a  judgment, 
cannot  require  such  an  order  of  a  State  court  before  suit  in  the  Federal 
court.2  A  litigant  loses  nothing  by  appealing  to  the  Federal  rather 
that  the  State  court. 3  It  is  a  general  rule  that  whenever  a  citizen  of 
a  state  can  go  into  its  courts  to  defend  his  property  against  illegal  acts 
of  State  officers,*  and  to  secure  a  decision  of  his  controversy  with  another 
citizen  of  the  same  State; 5  a  citizen  of  another  State  has  a  similar  right 
to  resort  to  the  Federal  tribunal.  Hence  if  a  State  provide  that  the  remedy 
for  an  illegal  schedule  of  railroad  rates  is  by  proceeding  at  law  in  the  State 
supreme  court,  this  cannot  deprive  a  citizen  of  another  State  of  his  right 
to  proceed  in  the  Federal  court  and  to  apply  for  equitable  relief  where  the 


isPavne  v.  Hook.  7  Wall.  425,  19 
L.  ed.  262;  Gaines  v.  Fuentes,  92  U. 
S.  10,  23  L.  ed.  524;  Hayes  v.  Pratt, 
147  U.  S.  570,  37  L.  ed.  279,  13  Sup. 
Ct.  Rep.  503;  Ellis  v.  Davis.  109  U. 
S.  498,  27  L.  ed.  lOOG.  3  Sup.  Ct.  Rep. 
327;  Lawrence  v.  Nelson,  143  U.  S. 
223,  36  L.  ed.  130,  12  Sup.  Ct.  Rep. 
440;  Clark  v.  Bever,  139  U.  S.  102, 
103,  35  L.  ed.  88;  11  Sup.  Ct.  Rep. 
468;  Richardson  v.  Green,  61  Fed. 
423.  9  C.  C.  A.  565;  Williams  v.  Crab, 
117  Fed.  197,  54  C.  C.  A.  213,  59  L.R.A. 
425  and  cases  cited.  As  to  Federal 
probate  jurisdiction.  See  §  2,  note, 
[w] 

leDarragh  v.  Wetter  Mfg.  Co.  78 
Fed.  7,  23  C.  C.  A.  609. 

1  TiEast  etc.  R.  R.  v.  Atlanta  etc.  R. 
R.  49  Fed.  612,  15  L.R.A.  111. 

i^Union  Bank  v.  Vaiden.  18  How. 
507;  15  L.  ed.  472;  Bigelow  v.  Nicker- 
son,  70  Fed.  121,  30  L.R.A.  341,  17 
C.  C.  A.  1. 


isMineral  etc.  R.  R.  v.  Detroit  etc. 
Co.  25  Fed.  520. 

2  0United  States  Mortgage  Co.  v. 
Snerry,  138  U.  S.  332,  34  L.  ed.  969, 
11  Sup.  Ct.  Rep.  321;  Davis  v.  James, 
2  Fed.  620,  10  Biss.  51. 

iThe  Lottawanna,  21  Wall.  580,  22 
L.  ed.  654. 

2  Union  T.  Co.  v.  Rochester  etc.  R. 
R.  29  Fed.  610. 

3Ex  parte  McNeil,  13  Wall.  236,  20 
L.  ed.  624;  Davis  v.  Way,  16  Wall. 
221,  21  L.  ed.  452;  Smith  v.  Reeves, 
178  U.  S.  445,  44  L.  ed.  1145.  20  Sup. 
Ct.  Rep.   922. 

4 Reagan  v.  Farmers  L  &  T.  Co.  154 
U.  S.  391,  38  L.  ed.  1022,  14  Sup.  Ct. 
Rep.  1052. 

sSchiirmeier  v.  Conn.  M.  L.  Ins.  Co. 
137  Fed.  46,  69  C.  C.  A.  22,  and 
cases  cited. 


46 


Procedure]  INHERENT   LIMITATIONS  §   6    [bj 

facts  entitle  him  thereto  under  the  established  principles  of  equity  juris- 
prudence in  the  Federal  courts. 6 

§  6.     Inherent  limitations  on  Federal  judicial  power. 

Certain  limitations  upon  the  exercise  of  judicial  power  arise  from 
the  fact  that  the  Constitution  distributes  the  powers  entrusted 
to  it,  among  the  three  great  departments  of  government,  legis- 
lative, judicial  and  executive.  The  first  makes,  the  second  con- . 
strues  and  the  third  executes  the  law.  The  three  are  co-ordinate 
equal  and  independent.  It  has  been  deemed  vital  that  no  one  of 
these  departments  be  permitted  to  encroach  upon  the  powers  of 
the  others.  Hence  the  courts  may  not  be  required,  nor  have  they 
a  right  to  exercise  non-judicial  powers, '^^^''^"^  and  the  executive  and 
legislative  departments  may  not  be  required,  nor  have  they  a  right 
to  exercise  any  part  of  the  judicial  power  confided  to  the  courts. ^'^^ 
Author's  Section. 

[a]  Conferring  non-judicial  powers  on  courts. 

The  courts  cannot  be  required  by  the  other  departments  to  discharge 
non- judicial  functions,  such  as  passing  ujion  pension  claims,io  or  re- 
viewing a  decision  of  the  court  of  claims  which  is  merely  advisory  to 
the  interior  department.! i 

[b]  Assumption  of  non-judicial  powers. 

Nor  can  courts  make  the  law,  but  must  expound  it  as  they  find  it.i* 
They  must  give  effect  to  the  will  of  the  legislature,  not  of  the  judge.i* 
The  motive  for  the  passage  of  a  law  is  not  a  proper  subject  of  inquiry; i5 
nor  is  the  expediency  or  wisdom  of  legislation.!  6  They  may  review  but 
it  has  been  said,  cannot  restrain  acts  of  other  departments.!  7  As  re- 
spects the  executive  they  may  not  interfere  with  the  discharge  of 
ordinary  duties,! 8  or  with  executive  discretion,! 9  or  executive  action  with- 

eSmyth  v.  Ames,  169  U.  S.  516,  42  v.  Des  Moines  etc.  Ry.  142  U.  S.  544, 

L.  ed.  838,  18  Sup.  Ct.  Rep.  422.  35  L.  ed.  1099,  12  Sup.  a.  Rep.  308. 

lOHayburns  Case,  2  Dall.  409,  1  L.  is  Wilkes  v.  Dinsman,  7  How.  127, 

ed.   436.  12  L.  ed.  618;  Brass  v.  North  Dakota, 

iiln  re  Sanborn,  148  U.  S.  224.  37  153  U.  S.  404,  38  L.  ed.  757,  14  Sup. 

L.  ed.  429,  13  Sup.  Ct.  Rep.  577.  Ct.  Rep.  857;  Li  Sing  v.  United  States, 

isGelston  v.  Hoyt,   3   Wlieat.   309,  180  U.  S.  495,  45  L.  ed.  638,  21  Sup. 

4  L.  ed.    381;    Luther    v.    Borden,  7  Ct.  Rep.  449;  Dred  Scott  v.  Sandford, 

How.  45,  12  L.  ed.  581.  19  How.   405,   15  L.  ed.   691. 

KOsborne  v.  LTnited   States   Bank,  !7Mississippi   v.    Johnson,  4    Wall. 

9  Wheat.  866,  6  L.  ed.  204.  500,  18  L.  ed.  437. 

ispletcher  v.  Peck.  6  Cranch,  131,  !8Bartlett   r.  Kane,   16   How.   272, 

3  L.   ed.   162;    Ex  parte  McCardle,  7  14  L.   ed.   931. 

Wall.  514,  19  L.  ed.  264;  Soon  riin2  v.  !9Board  of  Liquidation  v.  McComb, 

(Irowloy.  113  U.  S.  710,  28  L.  ed.  1145,  92  l\  S.  541,  23  L.  ed.  623. 
6    Sup.   Ct.   Rep.    7.30.    United    States 

47 


§  G   [c]  FEDERAL  JURISDICTION   IN   GENERAL.  [Code  Fed. 

in  the  scope  of  duties  prescribed  by  law.20  The  question  when  mandauuis 
or  injunction  will  lie  against  executive  oiTicers  is  discussed  on  a  subse- 
quent page.i 

[c]  Power  to  entertain  political  questions. 

Similarly  it  is  settled  that  the  courts  will  not  take  cognizance  of  polit- 
ical questions; 2  but  as  to  them  will  follow  the  decision  of  the  political 
department. 3  Thus,  the  question  as  to  the  adoption  of  a  constitution, 
or  amendment  or  existence  of  a  treaty  is  political  ;<  so  also  in  the  recog- 
nition of  foreign  States; 5  and  of  disputed  boundary  between  two  sovereign 
States, 6  though  not  between  States  of  the  Union. ^ 

[d]  —  assumption  of  judicial  powers  by  Congress  or  the  executive. 

It  is  equally  inadmissible  for  Congress  or  the  executive  departments  to 
assume  the  exercise  of  judicial  power;  10  though  the  Federal  Constitution 
does  not  prohibit  an  exercise  of  judicial  functions  by  the  State  legisla- 
tures.! 1  The  construction  of  statutes  is  not  a  legislative  power,i2  nor 
can  the  legislature  impose  upon  the  courts  its  construction  of  a  prior 
law.i3  Similarly  the  question  whether  a  statute  is  repealed  by  a  later 
law  is  judicial  not  legislative.!  *  A  direction  by  Congress  that  the  Fed- 
eral courts  dismiss  certain  claims  adjudicated  against  the  government, 
thus  denying  their  previous  legal  effect,  is  void  as  an  assumption  of  ju- 

20Craig  v.  Leitensdorfer,  123  U.  S.  L.  ed.  608;  Gelston  v.  Hoyt,  3  Wheat, 

211,  31   L.  ed.   114;    8  Sup.  Ct.   Rep.  324,  4   L.   ed.   381;    United   States  v. 

85;    Quackenbush   v.   United   States,  Yorba,  1   Wall.  423,  17  L.  ed.  635. 

177  U.  S.  25,  44  L.  ed.  656,  20  Sup.  6De   La  Croix  v.   Chamberlain,   12 

Ct.  Rep.  530;  Keim  v.  United  States,  Wheat.  600,  6  L.  ed.   741;   Garcia  v. 

177  U.  S.  292,  44  L.  ed.  775,  20  Sup.  Lee,  12  Pet.  516,  9  L.  ed.  1176;  United 

Ct.  Rep.  574.  States  v.  Reynes,  9  How.  154,  13  L. 

!See  post,  §  841.  ed.    74. 

2Marbury    v.    Madison,    1    Cranch,  ''Rhode    Island    v.    Massachusetts, 

169,  170,  2  L.  ed.  60;  Cherokee  Nation  12   Pet.    725,   9   L.   ed.    1233;    United 

V.    Georgia,   5    Pet.    20,    8  L.   ed.   25;  States  v.  Texas,  143  U.  S.  621,  36  L. 

Georgia   v.    Stanton,   6   Wall.   71-76,  ed.  285,  12  Sup.  Ct.  Rep.  488. 

18  L.  ed.  721;  United  States  v.  Blaine,  lOGordon  v.  United  States,  117  U. 

139  U.  S.  326,  35  L.  ed.  183,  11  Sup.  S.  697,  ^Appx.)  ;  Kilbourn  v.  Thomp- 

Ct.  Rep.  607;  In  re  Cooper,  143  U.  S.  son,  103  U.  S.  192,  193,  26  L.  ed.  377; 

503,  36  L.  ed.  232,  12  Sup.  Ot.  Rep.  Interstate  Commerce  Com.  v.  Brim- 

453.  son,   154   U.  S.   485,   38  L.   ed.   1047, 

sFoster  v.  Xeilson,  2  Pet.  307,  7  14  Sup.  Ct.  Rep.  1125. 
L.  ed.  415;  United  States  v.  Lee,  106  nOalder  v.  Bull,  3  Dall.  392,  395, 
U.  S.  209,  27  L.  ed.  171,  1  Sup.  Ct.  398,  1  L.  ed.  648;  Satterlee  v.  Mat- 
Rep.  240;  White  v.  Hart,  13  Wall,  thewson,  2  Pet.  413,  7  L.  ed.  458. 
649,  20  L.  od.  685,  More  v.  Steinbach,  isOgden  v.  Blackledge,  2  Cranch, 
127  U.  S.  80,  32  L.  ed.  51.  8  Sup.  Ct.  277,  2  L.  ed.  276;  Postmaster  General 
Rep.  1067;  In  re  Baiz,  135  U.  S.  432,  v.  Early,  12  Wheat.  148,  6  L.  ed.  577. 
34  L.  ed.  ^22,  10  Sup.  Ct.  Rep.  854.  i3Wneaton  v.  Peters,  8  Pet.  634,  8 

4Luther  v.  Borden,  7   How.  39,  42,  L.  ed.  1055. 

47,  12  L.  ed.  581;  Terlinden  v.  Ames,  i^United  States  v.  Claflin,  97  U.  S. 

184  U.  S.  2S8,  46  L.  ed.  534.  22  Sup.  549,  24  L.  ed.  1082;   District  of  Col- 

Ct.  Rep.  484.  umbia  v.  Hutton,  143  U.  S.  27,  28,  36 

sRose  V.  Ilinelv,  4  Cranch.  272,  2  L.  ed.  60,  12  Sup.  Ct.  Rep.  369. 

48 


Procedure]  SUITS   AGAINST   A    STATE    PROHIBITED.  {  7   [a] 

dicial  power.  15  The  essential  difl'erence  between  judicial  and  legislative 
power  is  that  the  former  declares  what  the  law  is  while  the  latter  pre- 
scribes what  the  law  is  to  be.iG  The  legislature  prescribes  general  rules 
for  the  government  of  society,  but  the  application  of  those  rules  belongs 
elsewhere.i"^  The  presumption  is  that  the  legislature  does  not  intend 
to  assume  judicial  functions. i*  Cases  ai'e  few  in  which  executive  action 
has  been  challenged  as  a  usurpation  of  judicial  power.  The  question 
whether  public  lands  have  been  disposed  of  is  judicial  rather  than 
executive. 19  But  the  executive  possesses  many  important  powers  re- 
specting the  reservation  and  disposal  of  public  lands; 20  and  the  making 
and  correction  of  surveys.  1  The  issue  of  a  distress  warrant  from  the 
treasury  to  satisfy  a  claim  against  a  tax  collector  for  balance  due,  has 
been  held  an  executive  and  not  a  judicial  act. 2  Nor  is  the  president's 
approval  of  the  sum  found  by  a  commission  to  be  a  fair  price  for  land 
taken,  a  judicial  act.s 


§  7.     Suits  against  a  State  prohibited. 

The  judicial  power  of  the  United  States  shall  not  be  construed^^^ 
to  extend  to  any  suit  in  law    or    equity"^^^    commenced    or    prose- 
cuted against  one  of  the  United   States   by  citizens   of   another 
State,^''^  or  by  citizens  or  subjects  of  any  foreign  State. '^'^^"^'^ 
Xlth  Amendment,  U.  S.  Constitution. 

[a]     Origin  and  retroactive  operation  of  this  amendment. 

The  amendment  was  held  to  extend  to  cases  pending  at  the  time  of  its 
ratification  and  further  prosecution  thereof  ceased. i"  Its  adoption  re- 
sulted directly  from  the  decision  of  the  Supreme  Court  in  Chisholm  v. 
Georgian  declaring  the  States  suable  in  the  Supreme  Court  at  the  in- 
stance of  citizens  of  other  States.  In  effect  it  denied  the  soundness  of 
that  decision  by  declaring  that  the  Constitution  should  not  be  construed 
as  containing  any  waiver  by  the  States  of  their  sovereign  immunity  from 
suit.  It  has  its  full  effect  if  the  Constitution  be  construed  as  it  would 
have  been  had  the  jurisdiction  of  the  court  never  been  extended  to   th'j 

isUnited  States  v.  Klein,  13  Wall.  18  L.   ed.  863;   Wisconsin  etc.  R.  R. 

144-147,  20  L.  ed.  519.  v.  Forsythe,  159  U.  S.  55.  40  L.  ed.  71. 

isCalder  v.  Bull,  3  Uall,  386,  1  L.  iKnight    v.    United    States    Land 

ed.  64S.  Assn.  142  U.  S.  176.  35  L.  ed.  974. 

i7Fletcher  v.  Peck,  6  Cranch,   136,  2Den  v.  Hohokon  Land  etc.  Co.  18 

3  L.  ed.  Ib2.  How.  280,  15  L.  ed.  372. 

18 Angle    V.    Chicago,    etc.  Ry.  151  sShoemaker  v.  Unitetl   States,  147 

U.   S.  20,  38  L.   ed.   55,   14  Sup.  Ct.  U.  S.  301,  .37  L.  ed.  170. 

Rep.  240.  lOOsborn  v.  Bank  of  c  nited  States, 

laHardin  v.  Jordan,  140  U.  S.  401,  9  Wheat.  858,  6  L.  ed.  233. 

35  L.  ed.  428.  iiQeorgia  v.  Brailsford,  2  Dall.  419, 

2  0Grisar  v.  McDowell,  6  Wall.  381.  1  L.  ed.  440. 
Fed.  Proc.— 4.                                  49 


§   7   [b]  FEDERAL  JURISDICTION   IN   GENERAL.  [Code  Fed. 

suits  therein  restrained.  12  The  amendment  saved  the  States  the  embar- 
rassment of  legal  proceedings  by  their  creditors  for  the  collection  of 
debts  incurred  during  and  after  the  war  for  independence. 

Lb]     Suit  in  law  or  equity. 

Whether  an  exception  of  admiralty  proceedings  was  intended  or  ef- 
fected, has  not  been  decided  although  argued  in  an  early  case.is 

[c]  By  citizens  of  another  State  or  aliens. 

The  fact  that  citizens  of  the  State  sought  to  be  sued  and  corporations 
created  by  Congress,  are  not  included,  does  not  mean  that  they  might 
sue  in  the  Federal  court  where  the  cause  is  itself  of  Federal  cognizanct 
because  arising  under  the  Federal  constitution  and  laws.i*  The  true 
principle  of  construction  is  that  the  sovereign  non-suability  of  a  State 
is  not  to  be  deemed  waived  in  the  grant  of  Federal  judicial  power  ex- 
cept in  the  cases  specifically  mentioned.i5 

[d]  What  constitutes  a  suit  against  a  State. 

Early  cases  held  that  the  amendment  was  satisfied  by  denying  juris- 
diction over  cases  where  a  State  was  party  defendant  of  record.is  But 
this  rule  has  long  since  been  discarded  as  an  inadequate  and  unreliable 
test.  The  real  nature  of  the  proceeding  controls. 1 7  The  Constitution 
contains  many  prohibitions  upon  State  action  and  limitations  upon  State 
power  which  the  Supreme  Court  is  bound  to  enforce  for  the  protection 
of  individual  rights.  In  interpreting  the  eleventh  amendment  therefore, 
the  court  has  striven  to  give  it  reasonable  effect  without  rendering  nug- 
atory the  various  salutary  restrictions  upon  State  action  infringing  in- 
dividual rights.  The  distinction  running  through  all  the  cases  is  be- 
tween preventive  and  affirmative  relief;  between  those  cases  in  which 
State  action  is  sought  to  be  restrained  by  proceedings  against  State  offi- 
cers, and  those  in  which  some  affirmative  though  legal  and  proper  act  of 
the  State  is  sought  to  be  compelled. 1 8  Tlie  amendment  does  not  shield 
State  officers  in  the  performance  of  unlawful  acts  though  prescribed  by 
State  law;  but  it  protects  the  State  against  compulsion  in  the  performance 
of    its    sovereign    functions,   against    the    enforcement    of    a    liability    ex 

i20sborn  v.  Bank  of  United  States,  i^In  re  Ayers,  123  U.  S.  443,  31  L. 

9  Wheat.   858,  6   L.  ed.   233.  ed.   216.   8   Sup.   Ct.   Rep.    164,    173; 

iSGovernor  of  Georgia  v.  Madrago,  Poindexter  v.   Greenhorn,    114   U.   S. 

1  Pet.  116,  124,  7  L.  ed.  76,  80.  270,  287,   29   L.   ed.   185,   5   Sup.   Ct. 

i4Hans  V.  Louisiana.  134  U.  S.  14,  Rep.   903. 
16-21,    33    L.    ed.    845.    10    Sup.    Ct.  isCunningham  v.  Macon  &  B.  R.  R. 
Rep.  5O7--509;   Smith   v.  Reeves,   178  Co.  109  U-  S.  453,  454,  27  L.  ed.  995,  3 
U.  S.  436,  44  L.  ed.  1142,  20  Sup.  Ct.  Sup.  Ct.  Rep.  298;  Hagood  v.  South- 
Rep.  923.  em.   117   U.  S.  52,  70,  29  L.  ed.  805, 

i5See  ante,  §  2  [o].  6  Sup.  Ct.  Rep.  616;  Hans  v.  Louis- 

leOsborn  v.  Bank  of  United  States,  iana.  134  U.  S.  20,  21.  33  L.  ed.  842, 

9  Wheat.  738,  6  L.  ed.  204 ;  Chaff raix  10   Sup.   Ct.   Rep.   504;    Pennoyer  v. 

v.  Board  of  Liquidation,  11  Fed.  638;  McConnaughv.  140  U.  S.  1,  35  L.  ed. 

Davis  V.  Gray.   16  Wall.   220    21   L.  363,  11  Sup.  Ct.  Rep.  703,  704. 
ed.  447. 

50 


Procedure]  SUITS    AGAINST   A   STATE    PROHIBITED.  §   7   [e] 

contractu  or  ex  delicto,  against  direct  proceedings  for  the  recovery  of 
property  held  by  the  State  through  its  officer.  The  cases  in  which  by 
mandamus  or  other  writ  State  officers  have  been  compelled  to  perform 
certain  acts  at  the  suit  of  individuals  injured,  are  no  exception  to  this 
rule,  since  the  foundation  of  the  relief  is  the  wrong  of  the  officers  in  dis- 
obeying or  maladministering  the  State  law  and  not  a  wrong  committed 
by  the  State.  Neither  are  the  cases  in  which  detinue,  trespass  and  eject- 
ment have  been  maintained  against  State  officers  holding  real  or  personal 
property  under  claim  of  right  or  title  in  the  State,  although  the  title  of  the 
State  is  indirectly  litigated  in  such  proceedings,  since  the  theory  on  which 
such  cases  proceed  is  that  of  a  tort  by  the  defendant  official.  19 

If  then,  by  way  of  illustration,  a  State,  having  agreed  that  the  coupons 
on  its  bonds  shall  be  valid  tender  for  State  taxes,  thereafter  prohibits  its 
officers  from  accepting  such  coupons  in  payment,  the  State  cannot  be  sued 
directly  for  breach  of  contract,  nor  indirectly  by  proceeding  to  compel 
its  officers  to  accept  the  coupons  in  payment  contrary  to  the  mandate  of 
the  statute,  but  injunction  will  lie  to  restrain  sale  of  the  land  for  non- 
payment of  taxes  after  coupons  have  been  tenderetl,  and  tort  proceedings 
may  be  maintained  against  the  offending  officers  after  seizure  for  non- 
payment, and  they  cannot  plead  the  invalid  statute  in  defense. 20 

[e]     Proceedings  to  enforce  liability  or  compel  affirmative  action. 

A  suit  will  not  lie  to  compel  a  State  to  pay  its  bonds;!  nor  to  realize 
upon  security  given  therefor. 2  The  proceeding  is  equally  prohibited 
where  the  State  is  not  made  party  but  suit  is  against  its  treasurer, 3  or 
second  mortgage  bondholders  proceed  against  the  governor  of  a  State 
which  has  foreclosed  a  first  mortgage,  <  or  creditors  sue  the  State  auditor. » 
Suit  to  enforce  payment  of  the  State  bonds  may  not  be  maintained  by  an- 
other State  to  which  the  holders  have  assigned  same  in  order  to  evade  the 
eleventh  amendment. 6  JIandamus  will  not  lie  to  compel  State  tax  col- 
lectors to  accept  State  coupons  in  payment  of  taxes,  where  a  State  has 
repudiated   its   agreement   that   they   may   be   so   received,   and   forbidden 

I9lt  must   be   confessed,   however,  Hagood  v.  Southern,  117  IT.  S.  52,  29 

that    thev    are    close   to    the   border  L.  ed.  805,  6  Sup.  Ct.  Rep.  608;  Smith 

line.    See'  ante.  §  2.  [niT  v.  RadcliflFe,  87  Fed.  064,  31  C.  C.  A. 

20Marye  v.  Parsons,  114  U.  S.  329,  328;  McGahev  v.  Virginia,  135  U.  S. 

29  L.  ed.   205,   5  Sup.   Ct.   Rep.  932,  6S4,  34  L.  ed.  304,  10  Sup.  Ct.  Rep. 

962;  Poindexter  v.  Greenhorn.  114  U.  972;  Smith  v.  Reeves,  178  U.   S.  445, 

S.  270.  3.-50.  29  L.  ed.  ISo.  5  Sup.  Ct.  44  L.  ed.  1146,  20  Sup.  Ct.  Rep.  920. 
Rep.  903,  962;  McGahev  v.  Virginia,        ^Cimningham  v.  Macon,  etc.  R.  R. 

135  U.  S.  662,  684,  34  L.  ed.  304,  10  109  U.  S.  451,  27  L.  ed.  992,  3  Sup.  Ct. 

Sup.  Ct.  Rep.  972.  Rep.  292. 

IBank  of  Washington  v.  Arkansas,        SLousiana  v.  Steele,  134  U.  S.  232 

20  How.  532,  15  L.  ed.  993;  Ex  parte  33  L.  ed.  891,  10  Sup.  Ct.  Rep.  511; 

Ayers,   123  U.  S.  443.  31   L.  ed.  216,  North  Carolina  v.  Temple,  134  U.  S. 

8  Sup.  Ct.  Rep.  181.  S.  22,  33  L.  ed.  849,  10  Sup.  Ct.  Rep. 

2Christian   v.    Atlantic   etc.   R.   R.  509. 
133  U    S.  243,  33  L.  ed.  589,  10  Sup.        6New  Hampshire  v.  Louisiana.  108 

Ct.  Rep.  260.  U.  S.  76,  27  L.  ed.  656,  2  Sup.  Ct.  Rep. 

3Louisiana  v.  Juniel,  107  U.  S.  723,  176. 
27  L.   ed.  443.  2   Sup.  Ct.  Rep.   128; 

51 


§   7   [£]  FEDERAL   JURISDICTION    IN   GENERAL  [Code  Fed. 

its  collectors  from  accepting  them.'  Nor  can  a  State  funding  board  be 
compelled  to  issue  bonds  in  lieu  of  certain  destroyed  obligations,  where 
no  State  law  so  directs. s  Specific  performance  of  a  State  contract  can- 
not be  decreed  in  a  suit  against  its  treasurer  and  other  officers.9  And 
if  injunction,  sought  against  State  officers,  would  indirectly  compel 
specific  performance  by  preventing  all  acts  which  constitute  the  breach, 
it  has  been  held  that  this  is  equally  forbidden.io  A  suit  against  a  State 
treasurer,  Attorney  General  and  other  officers  to  restrain  them  from  pay- 
ing over  an  agricultural  college  fund  to  defendant  and  to  compel  them 
to  pay  same  to  plaintiff  has  been  held  to  be  for  affirmative  relief  against 
the  State  and  not  maintainable; n  so  also  is  a  suit  against  a  State  au- 
ditor to  compel  tax  levy  to  pay  bonds;  12  and  a  suit  to  compel  State  offi- 
cers to  issue  a  certificate  to  a  foreign  corporation  to  do  business,  with- 
out paying  the  tax  made  by  State  law  a  condition  precedent.13 

[f  j     Suits  for  injunction  against  State  officers. 

The  leading  case  on  this  branch  of  the  subject  enjoined  a  State  auditor 
from  executing  a  State  law  imposing  an  arbitrary  tax  upon  the  bank 
of  the  United  States  in  violation  of  its  charter  rights  under  the  Fed- 
eral constitution.! 5  Perhaps  the  most  frequent  instances  of  the  exercise 
of  this  jurisdiction  have  been  suits  to  enjoin  State  boards  from  putting 
into  effect  a  schedule  of  railroad  rates,  or  gas,  telegraph,  or  stockyard 
rates  alleged  to  be  invalid  as  working  a  deprivation  of  property  without 
due  process  of  law,i6  or  as  violating  the  Federal  commerce  laws. it  The. 
governor  and  land  commissioner  of  a  State  have  been  enjoined  from  sell- 
ing lands  previously  donated  to  a  railroad. is     A  State  board  of  liquidation 

TiMcGahey   v.   Virginia,    135   U.    S.  U.  S.  543,  50  L.  ed.  1142,  26  Sup.  Ct. 

684,  34  L.  ed.  304,  10  Sup.  Ct.  Rep.  Rep.  722. 

972.  isProut  v.  Starr.  188  U.  S.  537,  47 

sFarmers  Nat.  Bank  v.  Jones,  105  L.  ed.  585,  23  Sup.  Ct.  Rep.  398;  Hav- 

Fed.  463.  erill  Gaslight  Co.  v.  Barker,  109  Fed. 

9Hagood  V.  Southern,  117  U.  S.  52,  094;   Starr  v.  Chicatro  etc.  R.  R.  110 

29  L.  ed.  805,  6  Sup.  Ct.  Rep.  608.  Fed.  3;   Reagan  v.  Farmers  L.  &  T. 

lOEx  parte  Ayers.  123  U.  S.  443,  Co.  154  U.  S.  362,  38  L.  ed.  1014,  14 
31  L.  ed.  216,  8  Sup.  Ct.  Rep.  181.  Sup.  Ct.  Rep.  1047;  Smyth  v.  Ames. 
It  is  hard  to  reconcile  this  case  ex-  169  U.  S.  466,  42  L.  ed.  819,  18  Sup. 
cept  upon  the  theory  that  injunction  Ct.  Rep.  418;  Chicago  etc.  R.  R.  v. 
against  prosecutions  by  State  officers  Day,  35  Fed.  866,  1  L.R.A.  744;  West- 
was  refused  because  adequate  reme-  em  U.  T.  Co.  v.  Mvatt,  98  Fed.  335 : 
dy  existed  at  law  by  defending  the  Hickman  v.  IMissouri,  etc.  R.  R.  97 
suits  brought.  Fed.  113;  Clyde  v.  Richmond,  etc.  R. 

iiBrown   University  v.   Rhode   Is-  R.   57   Fed.   436;    Cotting  v.   Kansas, 

land  College,  56  Fed.  55.  But  see  Yale  etc.   Stock   Yards,   79  Fed.  679.     See 

University  v.  Sanger,  62  Fed.  177.  also  ]\IcNeil  v.  Southern  Rv.  202  U. 

i2Nortli  Carolina  V.  Temple.  134  U.  S.   54.3,   50  L.  ed.   1142,   26    Sup.    Ct. 

S.  22,  33  L.  ed.  849,  10  Sup.  Ct.  Kep.  Rep.    722,   enjoining   enforcement   of 

509.  void  law. 

isManchester  etc  Ins.  Co.  v.  Her-  iTSouthern   Ry.   v.    Greensboro,   I. 

riott.  91  Fed.  711.  &  C.  Co.  134  Fed.  82. 

isOsborn  v.  Bank  of  United  States,  isDavis  v.  Gray,  16  Wall.  203,  21 

9  Wheat.  738,  6  L.  ed.  204.     A  late  L.  ed.  447;   Cobb  v.  Clough,  83  Fed. 

case  is  McNeil  v.  Southern  Rv.  202  604. 

52 


Procedure] 


SUITS   AGAINST   A    STATE   rROHIBITED. 


7   [g] 


has  been  restrained  from  an  over-issue  of  bonds. i9  Other  State  officials 
have  been  restrained  from  issue  of  State  books  in  violation  of  complain- 
ants' copyright; 20  from  proceedincs  to  collect  a  license  tax  on  interstate 
commerce;!  from  interfering  with  property  illegally  sold  to  State  for 
taxes;  2  from  assessing,  certifying  or  collecting  a  tax  claimed  to  be  un- 
lawful; 3  from  revoking  a  foreign  insurance  company's  license; *  from  in- 
terfering with  the  business  of  a  foreign  insurance  company  which  had  com- 
plied fully  with  the  State  law; 5  from  carrying  out  a  State  statute  as  to 
registration  of  voters;  6  from  distraining  property  of  a  railroad  company 
under  illegal  tax  proceedings ;  7  from  diverting  an  agricultural  college 
fund  administered  by  the  State  but  to  which  a  certain  college  had  a  vested 
beneficial  right ;S  from  seizing  liquors  under  a  dispensary  law; 9  and  to 
prevent  the  enforcement  of  a  law  which  would  subject  complainant  to 
seizure  of  his  property  and  the  closing  of  his  place  of  business. lo  Some 
eases  have  restrained  county  and  State  attorneys  from  instituting  civil, 
criminal,  or  contempt  proceedings  in  violation  of  constitutional  rights.n 
But  in  others  such  relief  has  been  refused  as  constituting  a  suit  ajjiinst 
the  State,!  2  though  the  real  reason  for  the  decisions  would  seem  te  ^  the 
want  of  any  necessity  for  equitable  interference  by  injunction. 

[gj     Suits  for  recovery  of  property  and  torts  of  State  officers. 

An  early  case  held  that  a  libel  in  admiralty  against  the  Governor  of  a 
a  State  for  slaves  seized  for  illegal  importation  and  placed  in  his  cus- 
tody and  for  money,  the  proceeds  of  others  already  sold,  was  in  effect  a 
suit  against  the  State  and  not  maintainable,  it  appearing  that  the  pos- 
session of  the  State  was  acquired  by  entirely  lawful  means.! 4  This  case 
is  not  inconsistent  with  the  established  proposition  that  the  mere  sugges- 
tion that  possession  is  by  an  officer  in  his  official  capacity  and  under 
claim  of  title  or  right  in  the  State,  will  not  oust  judicial  inquiry. la     The 


isBoard  v.  McComb.  92  U.  S.  531, 
541,  23  L.  ed.  623. 

20Howell  V.  Miller,  in  Fed.  129,  33 
C.  C.  A.  407. 

!  State  V.  Lagarde,  GO  Fed.  186. 

2Virginia  etc.  Iron  Co.  v.  Bristol 
Land  Co.  88  Fed.  134. 

sTavlor  v.  Louisville  etc.  E.  R.  88 
Fed.  350,  31  C.  C.  A.  537;  Gregg  v. 
Sanford,  65  Fed.  151,  12  C.  C.  A. 
525;  Western  U.  T.  Co.  v.  Henderson, 
68  Feu.  588;  Union  Pac.  R.  R.  v.  Alex- 
ander. 113  Fed.  347;  Secor  v.  Single- 
ton, 35  Fed.  376. 

^Metropolitan  L.  Ins.  Co.  v.  Mc- 
Nall,  81  Fed.  888. 

sMutual  Life  Ins.  Co.  v.  Bovle.  82 
Fed.  705. 

«Mills  V.  Green.  67  Fed.  818,  69  Fed. 
852,  16  C.  C.  A.  516. 

'Allen  V.  Baltimore  etc.  R.  R.  114 
U.  S.  311,  2!)  L.  ed.  200,  5  Sup.  Ct. 
Rep.  925. 


^President  etc.  of  Yale  v.  Sanger, 
62  Fed.  177.  But  see  Brown  Univ.  y. 
Rhode  Island  Colleee.  oG  Fed.  55. 

sScott  v.  Donald."  165  U.  S.  107,  41 
L.  ed.  648,  17  Sup.  Ct.  Rep.  262. 

!OMinneapolis  Brew.  Co.  v.  McGilli- 
vray,  104  Fed.  258. 

i!Tuchman  v.  Welch.  42  Fed.  548; 
Western  U.  T.  Co.  v.  :\Iyatt.  98  Fed. 
335;  Fitts  v.  McGhee,  172  U.  S.  516, 
43  L.  ed.  535.   19  Sup.  Ct.  Rep.  209. 

i2Ball  V.  Rutlai!^  R.  R.  93  Fed. 
513;  Ex  narte  Avers,  123  U.  S.  443, 
31  L.  ed.  216,  8  Sup.  Ct.  Rop.  164. 
Arbuckle  v.  Blackburn,  113  Fed.  616, 
51  C.  C.  A.  122;  Union  Trust  Co.  v. 
Stearns,    119  Fed.    790. 

1  ■'Governor  of  Georgia  v.  Madrago, 
1  Pot.  110.  7  L.  el.  73. 

isi'nited  States  v.  Peters,  5  C.amh. 
115,  3  L.  ed.  53;  Osborn  v.  Bank  of 
United  States,  9  Wheat.  738,  0  L.  ed. 


53 


S  7  [h] 


FEDERAL  JURISDICTION  IN   GENERAL. 


[Code  Fed. 


officer  must  justify  his  possession  by  showing  the  validity  of  the  right 
or  title  of  the  State  and  if  he  fail  to  show  a  valid  title  in  the  State  or  a 
valid  law  to  support  the  alleged  right  of  the  State,  his  possession  will 
be  ousted  and  enjoined.  Individual  property  rights  may  thus  be  vindicat- 
ed as  against  the  State  though  it  is  not  a  party  to  the  controversy  and 
not  technically  bound  by  the  decision,  and  the  decree  does  not  a-jtualiy 
quiet  the  title  of  complainant. ifi  Pursuant  to  this  principle  detinue  has 
been  held  maintainable  against  a  sheriff  for  unlawful  seizure  of  personal 
property  to  pay  taves  for  which  a  valid  tender  of  State  coupons  in  pay- 
ment had  previouslj''  been  made.i^  And  ejectment,  trespass,  and  other 
actions  regarding  possession  of  real  property  have  been  sustained.is  It  has 
been  said  that  the  gist  of  the  action  is  tort; is  but  the  right  or  title  actual- 
ly litigated  is  that  of  the  State.  Similarly  it  has  been  held  that  a<;tions  for 
damages  against  State  officers  or  to  recover  money  or  property  wrong- 
fully taken  may  be  maintained;  and  if  the  officer  justify  under  a  State 
law  which  infringes  rights  guaranteed  by  the  Federal  constitution  the 
relief  prayed  may  be  granted,  and  it  will  not  be  deemed  a  suit  agahist 
the  State. 2  0  But  an  action  against  State  officers  for  infringing  the  pro- 
visions of  the  anti  trust  law  of  1890  is  in  fact  a  suit  against  the  State 
where  their  acts  are  done  pursuant  to  a  state  dispensary  law  monopo- 
lizing the  sale  of  liquors,  i 

[h]     Waiver  of  immunity  from  suit. 

A  bank  in  which  a  State  is  incorporator  is  not  thereby  exempt  from 
suit  under  the  eleventh  amendment, 2  even  although  the  state  is  the  sole 
stockholder,  as  its  nonsuability  is  deemed  waived,  pro  tan  to.  s  The  fact 
that  a  State  is  controlling  stockholder  in  a  railroad  does  not  aflfect  its  sua- 


204;  United  States  v.  Lee,  106  U.  S. 
19G,  27  L.  ed.  171,  1  Sup.  Ct.  Rep. 
240. 

isUnited  States  v.  Lee,  106  U.  S. 
222,  27  L.  ed.  182,  1  Sup.  Ct.  Rep. 
262;  Tindal  v.  Wesley,  167  U.  S.  204, 
42  L.  ed.  137,  17  Sup.  Ct.  Rep.  777, 
778. 

i^Poindexter  v.  Greenhorn,  114  U. 
S.  270,  29  L.  ed.  185,  5  Sup.  Ct.  Rep. 
903. 

isUnited  States  v.  Lee,  106  U.  S. 
196,  27  L.  ed.  171,  1  Sup.  Ct.  Rep. 
240;  Stanley  v.  Schwalbv,  162  U.  S. 
255,  271,  40  L.  ed.  960,  "^16  Sup.  Ct. 
Rep.  754;  Belknap  v.  Schild,  161  U. 
S.  10,  40  L.  ed.  .599.  16  Sup.  Ct.  Rep. 
443;  Tindal  v.  Wesley,  167  U.  S.  204, 
42  L.  ed.  137,  17  Sup.  Ct.  Rep.  777, 
778;  Saranac  Land  etc.  Co.  v.  Roberts, 
68  Fed.  521.  Some  of  these  cases 
are  suits  against  the  United  States 
but  the  principle  has  been  declared 
to  be  the  same.     The  interest  of  the 


State  in  certain  lands  has  been  held 
not  to  defeat  ejectment  brought 
against  a  city.  Wheeler  v.  Chicago, 
68  Fed.  526. 

19  Stanley  v.  Schwalby,  147  U.  S. 
508,  37  L.  ed.  259.  13  Sup.  Ct.  Rep. 
418;  Same  v.  Same,  162  U.  S.  255, 
40  L.  ed.  960,  16  Sup.  Ct.  Rep.  754. 

20In  re  Tyler,  149  U  S.  164,  37  L. 
ed.  689.  13  Sup.  Ct.  Rep.  785;  Scott  v. 
McDonald,  165  U.  S.  58,  41  L.  ed.  638, 
17  Sup.  Ct.  Rep.  265. 

iLov/enstein  v.  Evans,  69  Fed.  908. 

2Bank  of  United  States  v.  Planters 
Bank,  9  Wheat.  908,  6  L.  ed.  244; 
Briscoe  v.  Bank  of  Kentucky,  11  Pet. 
324,  9  L.  ed.  736 ;  Darrington  v.  Bank 
of  Alabama,  13  How.  12,  14  L.  ed. 
-30;  Curran  v.  x\rkansas,  15  How.  309, 
14  L.  ed.  705. 

sBank  of  Kentucky  v.  Wister,  2 
Pet.  323,  7  L.  ed.  437. 


54 


Procedure]  THE  FEDERAL  COURTS.  §   8   [a] 

bility.*  A  State  may  waive  its  exemption  from  suit; 5  and  its  appearance 
in  a  suit  as  party  defendant  is  such  waiver.  6  But  the  filing  of  a  stipula- 
tion by  the  governor  of  a  State  in  a  libel  in  admiralty  for  slaves  in  his  cus- 
tody has  been  deemed  not  a  waiver  of  immunity  on  the  part  of  the  State.7 
In  a  case  at  circuit  where  a  suit  filed  by  the  State  had  been  removed  by 
the  defendants  to  the  Federal  court,  it  was  held  that  the  filing  of  a  cross 
bill  did  not  oust  the  jurisdiction  which  the  State  had  voluntarily  invoked. 8 
A  State  in  its  statute  permitting  suits  against  it  may  limit  such  suits  to 
its  own  courts  and  thus  forbid  Federal  jurisdiction. 9 

£i]     Conclusion. 

The  substantial  result  of  the  decided  cases  is  that  in  all  instances  ex- 
cept where  specific  and  affirmative  fulfilment  of  State  promises  is  sought 
to  be  compelled,  or  a  liability  to  be  enforced;  individual  rights  may  be 
vindicated  against  wrongful  State  action  by  treating  its  officers  as  tort 
feasors  and  enjoining  or  punishing  their  acts  when  not  supported  by  valid 
State  law,  or  ousting  their  possession  when  not  supported  by  valid  right  or 
title  in  the  State. 

§  8.     The  Federal  courts. 

The  judicial  power   of   the  United   States  shall  be  vested  in^^^ 
one  Supreme  Court/'^^  and  in  such  inferior  courts"^^^""^^^  as  the  Con- 
.gress  may  from  time  to  time  ordain  ar<l  establish. 
U.  S.  Const,  art  3,  part  of  §  1. 

£a]     "Shall  be  vested"  in  Federal  courts. 

This  clause  imposes  an  imperative  duty  on  Congress  to  create  the  Fed- 
eral courts  and  distribute  the  judicial  power  among  them.io  And  while 
the  original  jurisdiction  uf  the  Supreme  Court  is  provided  by  the  Consti- 
tution,! i  all  other  Federal  jurisdiction  requires  action  by  Congress  for  its 
distribution,  organization,  and  mode  of  exercise.i2  The  inferior  Federal 
courts  derive  their  power  from  Congress  and  not  directly  from  the  Con- 
stitution.! 3  A  military  commission  appointed  by  the  President  can  ex- 
ercise no  part  of  the  Federal  judicial  power.!*     It  results  from  the  grant 

■iSouthern   Ry.   v.   North    Carolina  see  Reinhart  v.  McDonald,  76  Fed.  403. 

etc.  R.  R.  81   Fed.  595.  io]\rartin  v.  Hunter,  1  Wheat.  328, 

sReagan  v.  Farmers  L  &  T.  Co.  154  331,  4  L.  ed.  103,  104. 

U.  S.  392,  38  L.  ed.  1014,  14  Sup.  Ct.  i!Post,  §  35. 

Rep.    1047;    Bank   of   Washington   v.  i2Carv  v.  Curtis,  3  How.  245.  11  L. 

Arkansas,  20  How.  529.  15  L.  ed.  993.  ed.     576';     McClung     v.     Silliman.     6 

eClark   v.  Barnard,   108  U.   S.  447,  Wheat.  604.  5  L.  ed.  340:  Johnson  Co. 

27  L.  ed.  780,  2  Sup.  Ct.  Rep.  878.  v.  Wharton,  152  U.  S.  260,  38  L.  ed. 

^Governor  of  Georgia  v.  Madrago,  429,  14  Sup.  Ct.  Rep.  608. 

1   Pet.  110,  7  L.  ed.  73.  i3Turner  v.  Bank  of  North  Ameri- 

sPort   Royal   etc.   R.   R.   v.   South  ca,  4  Dall.  10,  1  L.  ed.  718.     And  see 

€arolina.  60  Fed.  5.52.  post.  §  9,  note.[a] 

sSmith  V.  Reeves,  178  U.  S.  445.  44  !4Ex  parte  Milligan,  4  Wall.   121, 

L.  ed.  1145,  20  Sup.  Ct.  Rep.  919.   But  18  L.  ed.  295,  296. 

55 


$   8   [b]  FEDERAL  JURISDICTION   IN   GENERAL.  [Code   Fed. 

of  the  Federal  judicial  power  to  the  Federal  courts  that  the  legislative  and 
executive  departments  are  prohibited  from  judicial  functions.  1 5  It  re- 
sults also  that  Congress  cannot  vest  any  part  of  the  Federal  judicial  power 
in  State  Courts  or  in  any  courts  save  those  existing  under  the  Constitu- 
tion and  laws  of  the  United  States.!  6 

[b]  Supreme  court. 

By  the  judiciary  act  of  1789  Congress  created  a  Supreme  Court  consist- 
ing of  seven  members  and  from  time  to  time  has  passed  various  laws  re- 
specting the  organization  of  the  court,  salaries  of  judges,  terms,  subordi- 
nate officers,  clerks,  etc.  In  1870  the  court  was  increased  to  nine  members. 
The  Constitution  defines  the  original  jurisdiction,  which  Congress  is  with- 
out power  to  enlarge  or  modify; i7  but  its  appellate  jurisdiction  as  to 
matters  within  the  scope  of  Federal  judicial  power,  is  subject  to  Congres- 
sional  regulation   and   requires  action  by   Congres   for  its   exercise.i* 

[c]  Inferior  courts. 

By  the  judiciary  act  of  1789  Congress  established  the  district  and  cir- 
cuit courts  with  a  jurisdiction  similar  in  the  main  to  that  now  vested  in 
them.  In  1891  the  growth  of  Federal  litigation  and  the  crowding  of  the 
Supreme  Court's  docket  led  to  the  establishment  of  circuit  courts  of  ap- 
peal in  each  of  the  nine  circuits  which  exercise  a  final  appellate  jurisdic- 
tion in  many  classes  of  cases.  The  tendency  of  the  recent  acts  has  been 
to  restrict  Federal  jurisdiction.!  In  addition  Congress  has  established  a 
court  of  claims  having  cognizance  of  claims  against  the  United  States, 
which  has,  since  the  act  of  March  17,  1866,  exercised  all  the  functions 
of  a  court,  and  from  whose  judgments  appeal  lies  to  tlie  Supreme  Court. 2 
By  act  of  March  3,  1891,  Congress  further  created  a  court  of  private  land 
claims  to  investigate  and  adjudge  various  claims  under  unconfirmed  grants 
of  public  lands.  3  That  court  was  required  to  terminate  its  functions  on 
March  4th,  1899.* 

15 Ante,  §  6.  i^Post,  §  3.5. 

isHouston  v.  Moore,  5  Wheat.  27,  5  isPost,   §  35. 

L.  ed.  19;  Martin  v.  Hunter,  1  Wheat.  iMartin  v.  Baltimore  etc.  R.  R.  151 

304,   330,  4  L.   ed.   97;    In  re  Lonev,  U.  S.  687.  38  L.  ed.  311,  14  Sup.  Ct. 

134  U.  S.  372,  33  L.  ed.  949,  10  Sup.  Rep.  533;   Tennessee  v.  Union  etc.  R. 

Ct.  Rep.  584;  United  States  v.  Ames,  R.    152  U.   S.   462,   38  L.  ed.   511,  14 

1  Wood.  &  M.  76,  Fed.  Cas.  No.  14,-  Sup.  Ct.  Rep.  654. 

441;  The  Sheazle,  1   Wood.  &  M.  66,  sQreat  Falls  Mfg.  Co.  v.  Attorney 

Fed.    Cas.    No.     12,734;     Stearns    v.  General,  124  U.  S.  599,  31  L.  ed.  527, 

United   States,    2   Paine,    300,    Fed.  8   Sup.  Ct.   Rep.   631. 

Cas.   No.   13,341 ;    Ex  parte  Knowles,  sSee    United    States    v.    Sandoval, 

5  Cal.  300;    Davison  v.   Champlin,   7  167  U.  S.  278,  42  L.  ed.  168,  17  Sup. 

Conn.  244;  Huber  v.  Reilly,  53  Pa.  St.  Ct.  Rep.  870;  Hayes  v.  United  States, 

112;  Ely  v.  Peck,  7  Conn.  239;  State  170  U.  S.  637,  42  L.  ed.  1174,  18  Sup. 

V.  Well's,  2  Hill   (S.  C.)   687;  United  Ct.  Rep.  735. 

States  V.  Lathrop,  17  Johns.  4;  State  4Act,  March  3,  1891,  26  U.  S.  Stats. 
V.  McBride,  Rice,  400;  Jackson  v.  862.  §  19,  as  amended,  29  U.  S. 
Rose,  2  Va.  Cas.  34;  Ex  parte  Step-  Stats.  577.  It  has  however  been  con- 
hens,  70  Mass.  559.  tinned  from  time  to  time. 

56 


Procedure]  THE    FEDERAL   COURT.  §   8   [d] 

[d]     Territorial  courts. 

Within  the  meaning  of  the  Constitution,  and  the  power  of  Congress  to 
establish  inferior  courts,  territorial  courts  are  not  courts  of  the  United 
States,  in  which  Congress  may  vest  any  part  of  the  Federal  judicial 
power.6  They  are  legislative  courts,  created  by  Congress,  and  the  dis- 
tinction between  State  and  Federal  jurisdiction  does  not  obtain  as  there 
is  but  one  system  of  government  or  of  laws  operating  within  a  territorj'^ 
of  the  United  States. 7  The  power  to  establish  them  is  derived  from  the 
power  of  Congress  to  legislate  fully  for  the  territories. s  Acts  of  Con- 
gress respecting  proceedings  in  courts  of  the  United  States  are  usually 
not  construed  as  applj'ing  to  territorial  courts  or  courts  of  the  District 
of  Columbia,  and  do  not  repeal  enactments  regulating  procedure  in  the 
latter.9  It  has  been  the  practice  of  Congress  to  establish  the  territorial 
courts  and  outline  their  jurisdiction,  but  to  permit  the  territorial  courts 
and  legislatures  to  regulate  practice  and  procedure  therein. lo  They  may 
thus  provide  for  the  administering  of  legal  and  equitable  relief  in  one 
action  notwithstanding  the  Federal  laws  maintaining  the  ancient  distinc- 
tion between  law  and  equity  in  the  Federal  courts. n  But  they  cannot 
alter  the  distribution  of  jurisdiction  made  by  Congress  in  the  territorial 
organic  law,  as,  by  conferring  law  and  chancery  powers  on  the  probate 
court  provided  by  Congress;  12  though  an  act  of  the  Idaho  legislature 
empowering  the  territorial  supreme  court  to  issue  certain  writs  not  pro- 
vided by  Congress,  has  been  upheld.i3  The  court  established  by  act  of 
March  1,  1889,  for  the  Indian  Territory  has  been  called  a  court  of  the 
United  States,  though  not  a  district  or  circuit  court;  and  in  Hawaii  and 
Porto  Rico  and  perhaps  other  territories  Congress  has  adopted  the  plan 
of  creating  a  district  court  with  jurisdiction  similar  to  the  Federal  circuit 


^American  Ins.  Co.  v.  Three  Hun-  ture  of  the  enactment  may  show  that 

dred  etc.  Bales  of  Cotton,  1  Pet.  546,  other    than    strictly    Federal    courts 

7  L.  ed.  243;  Benner  V.  Porter,  9  How.  are    included.     See    Cross    v.    United 

242,  13  L.  ed.    119;    Good  v.   Martin,  States.  145  U.  S.  571,  36  L.  ed.  821, 

95  U.  S.  98,  24  L.  ed.  341;  Revnolds  12  Sup.  Ct.  Rep.  844;  Brown  v.  Unit- 

V.  United  States,  98  U.  S.  145,'  24  L.  eu   States,   171   U.   S.  636,   43  L.   ed. 

ed.  244;  McAllister  v.  United  States,  312,  19  Sup.  Ct.  Rep.  56.     See  post, 

141  U.  S.  184,  35  L.  ed.  693,  11  Sup.  §  59. 

Ct.  Rep.   949;    United   States   v.  Mc-         loHornbuckle  v.  Tombs,    18    Wall. 

Millan,  165  U.  S.  510,  41  L.  ed.  805,  0.56,  21  L.  ed.  966;  Hershfield  v.  Grif- 

17    Sup.   Ct.   Rep.   395;    The    Citv   of  fith,  18  Wall.  658,  659,  21  L.  ed.  908; 

Panama,  101  U.  S.  400,  25  L.  ed.  1061;  Davis  v.  Bilsland,  18  Wall.  661,  21  L. 

Wallace  v.  Adams,  143  Fed.  725.  ed.   969;    Thiede   v.   Utah,    159   U.   S. 

TBenner  v.  Porter,  9  How.  242,   13  514,  40  L.   ed.  237,   16  Sup.  Ct.  Rep. 

L.  ed.  119;  Baker  V.  Morton,  12  Wall.  62;    Guthrie    Xat.    Bank    v.    Guthrie, 

153,  20  L.  ed.  262.  173  U.  S.  539,  43  L.  ed.  790,  19  Sup. 

sMcAUister  v.   United  States,   141  Ct.  Rep.  513. 
U.  S.  181,  35  L.  ed.  693,  11   Sup.  Ct.        nHornbuckle  v.  Toombs,  IS  Wall. 

Rep.  949.  656,  21  L.  ed.  966. 

oHornbuckle    v.    Tombs,    IS    Wall.         i2Ferris    v.   Higley,    20   Wall.    381, 

655,  21  L.  ed.  966;  The  Page  v.  Burn-  22  L.  ed.  383. 

stine,   102  U.   S.  668,  z*i  L.   ed.  268.        isClousrh  v.  Curtis,  134  U.  S.  368, 

But  the  term  "any  court  of  the  Unit-  33  L.  ed.  945,  10  Sup.  Ot.  Rep.  573. 
ed  States'  is  very  broad  and  the  na- 

57 


§  8   [e]  FEDERAL   JURISDICTION   IN   GENERAL.  [Code   Fed. 

and  district  courts; i*  But  these  are  plainly  mere  legislative  courts  and 
that  in  the  Indian  Territory  a  court  established  by  Congress  in  the  dis- 
charge of  its  governmental  duties  in  respect  to  the  Indian  tribes. 1 5  Xhe 
fact  that  its  judges  are  appointed  for  four  years  instead  of  during  good 
behavior  and  that  it  is  given  jurisdiction  outside  the  scope  of  the  judicial 
power  defined  by  the  Constitution! «  shovps  that  it  is  not  deemed  a  court 
of  the  United  States  within  the  power  to  establish  inferior  courts  con- 
ferred by  the  section  of  the  Constitution  here  under  consideration. 

When  a  territory  is  admitted  as  a  State,  Congress  must  establish  in- 
ferior Federal  courts  therein,!  7  and  Congress  and  the  new  State  govern- 
ment should  agree  as  to  the  transfer  of  records  from  the  territorial  courts 
in  cases  of  proper  State  cognizance,  as  the  State  would  otherwise  have  no 
authority  to  take  them. is  Cases  pending  at  the  time  of  admission  are 
usually  made  transferable  to  the  Federal  court  if  of  Federal  cognizance. i '^ 

£e]     Provisional  courts. 

Provisional  courts  have  been  established  by  the  President  in  conquered 
territoryi  or  in  rebel  states  occupied  by  military  forces  of  the  Union, '•! 
and  their  validity  has  been  recognized  anc}  sustained;  but  they  are  merely 
military  tribunals  and  not  inferior  Federal  courts.  Congress  may  validly 
provide  for  transfer  of  pending  causes  which  are  of  Federal  cognizance, 
into  the  Federal  courts  at  the  close  of  hostilities. 3 

[f]     District  of  Columbia  courts. 

It  has  been  said  that  the  courts  of  the  District  are  "courts  of  the 
United  States"  and  hence  that  a  denial  of  full  faith  and  credit  to  the 
judgment  of  one  of  its  courts  was  a  denial  of  an  authority  exercised  under 
the  United  States. 5  Another  case  has  refused  to  hold  that  the  courts 
of  the  District  might  not  be  included  within  the  phrase  "any  court  of  the 
United   States,"    in    an   act   of   Congress. 6     It    seems    plain,   however,   that 

i4Tn    re   Mills,    135   U.    S.   208,    34  berger  v.  Richmond  etc.  Min.  Co.  lo3 

L.  ed.  107,  10  Sup.  Ct.  Rep.  702;  Rev-  U.  S.  48.  39  L.  ed.   880,   15  Sup.  Ct. 

nolds  V.  United  States.  98  U.  S.  145,  Rep.   751:    Washington   etc.  R.  R.   v. 

154,  25  L.  ed.  244;  Ex  parte  Farley,  Coeur  D'Alene  Ry.   100  U.  S.  93.  40 

40  Fed.  GO.     See  Perez  v.  Fernandez,  Le.   340,  10   Sup.  "Ct.  Rep.  231.      See 

202  U.  S.   80,  50  L.  ed.  942,  20  Sup.  post,  §  213. 
Ct.  Rep.  501,  as  to  Porto  Rico  court.        iLeitensdorfer   v.   Webb,   20   How. 

isstephens  v.  Cherokee  Nation,  174  170.  15  L.  ed.  891. 
U.  S.  477,  43  L.  ed.  1041,  19  Sup.  Ct.         2The  Grapeshot,  9  Wall.   132,   133, 

Rep.  734.  19   L.   ed.   053;    JNIochanics   etc.   Rank 

i6Ex  parte  Farlev,  40  Fed.  00.  v.   Union  Bank.  22  AYall.  290,  22  L. 

iTBenner  V.  Porter,  9  How.  244,  13  ed.    871;    Lewis    v.    Cocks,    23    Wall. 

L.    ed.    119;    Koenigsberger    v.    Rich-  409.  23  L.  ed.  70. 

mond  etc.  Min.  Co.  158  U.   S.  48.  39         sThe  Crrapeshot.  9  Wall.   132.    1:^:3, 

L.  ed.  889,  15  Sup.  Ct.  Rep.  751.     Se«  19  L.  ed.  053;   Edwards  v.  Tanneret, 

post,  §  49.  12  Wall.  449,  20  L.  ed.  415. 

isHimt  V.  Palao,  4  How.  590,  11  L.        sEmbrv   v.  Palmer,   107   U.   S.    10, 

ed.  1115.  27  L.  ed.  340.  2  Sup.  Ct.  Rep.  25. 

lOMcAUister  v.  ITnited  States.  141         sCross  v.  United  States,  145  U.  S. 

U.  S.  199,  .35  L.  ed.  093,  11  Sup.  Ct.  575,  36  L.  ed.  821,  12  Sup.  Ct.  Rep. 

Rep.    949.    per    Field,    J.;     Koenigs-  844. 

58 


Proceduie]  JURISDICTION  IS  LIMITED.  §  9   [a] 

the  power  of  Congress  to  establish  courts  in  the  District  and  define  their 
jurisdiction  does  not  result  from  the  power  to  establish  inferior  Federal 
courts,  but  from  its  plenary  power  to  govern  and  legislate  for  the  Dis- 
trict.' 

§  9.     Federal  jurisdiction  is  limited  and  must  affirmatively  ap- 
pear. 

It  results  from  the  restricted  nature  of  the  Federal  judicial 
power  that  the  Federal  courts  are  termed  courts  of  limited,  as 
distinguished  from  courts  of  general  or  inferior,  jurisdiction.^^^ 
Their  Jurisdiction  must  affirmatively  appear,  as  it  will  not  be  pre- 
sumed, any  more  than  in  the  case  of  courts  of  inferior  jurist! ic- 
tion.f''^  But  their  judgments  are  merely  erroneous  and  not  void  if 
jurisdiction  do  not  appear. ^^^^  The  Federal  jurisdiction  being 
limited  it  is  a  settled  rule  that  the  facts  conferring  it  must  be 
affirmatively  pleaded. f*^^""^®^  The  failure  of  parties  to  object  to 
a  want  of  jurisdiction  or  an  attempt  to  waive  it  does  not  cure  the 
defect  ;^^^  as  it  is  the  court's  duty  to  notice  it,  and  dismiss  the 
cause"^^^  unless  the  defect  is  merely  one  of  pleading  and  can  be 
cured  by  amendment. "^'^^ 
Author's  Section. 

[a]     Federal  courts  are  limited  but  not  inferior. 

This  principle  was  settled  in  an  early  case  and  has  ever  since  been 
recognized. 10  It  extends  to  the  Supreme  Court  which  is  itself  a  court 
of  limited  jurisdiction.!  i  The  lower  Federal  courts  are  inferior  courts  in 
the  sense  that  their  judgments  are  subject  to  revision  by  a  higher  court;  12 
but  they  are  not  technically  such,  within  the  meaning  of  that  term  as 
applied  to  courts  not  of  record,  whose  judgments  taken  alone  are  entirely 
disregarded.! 3  Like  inferior  courts  their  jurisdiction  must  affirmatively 
appear,  but  when  once  shown  they  are  entitled  to  the  same  presumptions 
in  favor  of  the  regularity  of  their  acts  as  courts  of  general  jurisdiction.!'' 


''Capital  Traction   Co.  v.  Hof,   174  i2Kempes    Lessee    v.    Kennedy,    5 

U.  S.  5,  43  L.  ed.  873,  19  Sup.  Ct.  Rep.  Cranch.   185,  3  L.   ed.   70;    Ex   parte 

580.  Watkins.  3  Pet.  205,  7  L.  ed.  650. 

! "Turner  v.  Bank  of  North  Ameri-  isfirignon  v.    Astor.  2    How.  341, 

•ea,  4  Dall.  10,  11.  1  L.  ed.  718;  Kemps  11    L.   ed.   283;    Kennedy   v.   Georgia 

Lessee  v.  Kenned v,  5  Cranch,  185.  3  State   Bank.   8   How.   6i2,   12   L.   ed. 

L.   ed.    70;    McCormick    v.    Sullivant,  1209;   Hornthall  v.  Collector,  9  Wall. 

10  Wheat.  199,  6  L.  ed.  300;   Cuddv,  505,    19    L.    ed.    500;    McClauchry    v. 

Petitioner.    131    U.   S.   284,   33  L.   ed.  Denninsr,  180  U.  S.  69,  46  L.  ed.  i049. 

1.54,   9    Sup.   Ct.    Rep.    703;    Bank   of  22  Sup.'Ct.  Rop.  780. 

IXnited  States  v.  Moss,  6  How.  40.  12  nCuddv.  Pethioner.  131   U.  S.  284, 

L.  ed.  331.  33   L.  ed."  154,   9   Sup.   Ct.  Rep.   703; 

iiRhode   Island   v.   Massachusetts,  Turner  v.  Bank  of  X.  A.  4  Dnll.   10, 

12  Pet.  720,  9  L.  ed.  1233.  11,    1    L.    ed.    718:    Miller    v.    I'nited 

59 


S   9   [b]  FEDERAL  JURISDICTION    IN   GENERAL.  [Code   Fed. 

None  of  the  Federal  courts  have  a  common  law  jurisdiction; is  but  only 
such  as  the  Constitution  and  laws  of  Congress  in  execution  thereof,  have 
conferred.16  They  have  none  of  the  inherent  powers  of  courts  existing 
by  prescription  or  by  the  common  law.i"  Their  powers  must  be  conferred 
by  Congress.18  Territorial  courts  and  courts  of  the  District  of  Colum- 
bia are  not  Federal  courts  within  the  doctrine  of  limited  jurisdiction,  as 
Congress  legislates  for  them  under  its  power  to  govern  territory  and 
not  in  discharge  of  its  duty  to  vest  the  judicial  power  of  the  United 
States.19 

[b]  No  presumption  in  favor   of  Federal  jurisdiction. 

There  is  no  presumption  in  favor  of  the  jurisdiction  of  Federal  courts. i 
Indeed  it  is  presumed  that  a  case  is  outside  the  jurisdiction  of  the  cir- 
cuit or  district  court,  unless  the  contrary  affirmatively  appears.  2  But 
this  is  a  presumption  indulged  during  the  progress  of  the  cause  and  on 
appeal.  It  has  no  application  to  collateral  attack  on  such  a  judgment, ^ 
and  the  absence  of  affirmative  showing  of  jurisdiction  does  not  make  the 
judgment  of  a  Federal  court  impeachable  collaterally.* 

[c]  Effect  of  failure  of  record  to  show  jurisdiction. 

Where  the  proceedings  fail  to  show  jurisdiction,  the  judgment  of  an  in- 
ferior Federal  court  is  erroneous  but  not  void.s     It  is  valid  between  the 


States,   II  Wall.  299,  20  L.  ed.  135;  lEx  parte  Smith.  94  U.  S.  456.  26 

Cbmstock   V.  Crawford,   3  Wall.   403,  L.  «d.  105. 

18  L.  ed.  34.  2Robertson  v.  Cease,  97  U.  S.  649, 
i5Ex    parte   Dorr,  3   How.    104,    11  24  L.  ed.  1057;   Bors  v.  Preston,  111 

I.,    ed.    514.     See    United    States    v.  U.  S.  255,  28  L.   ed.  419,  4   Sup.   Ct. 

Coolidge,  1  Wheat.  416,  4  L.  ed.  124.  Rep.     407;     Continental    Ins.    Co.    v. 

leCarv  v.  Curtis,  3  How.  230,  245,  Rhodes,  119  U.  S.  239,  240,  30  L.  ed. 

11  L.  ed.  576;   United  States  v.  Bar-  380,    7    Sup.   Ct.   Rep.    193;    Grace   v. 

rett,  135  Fed.  189.  American  Ins.  Co.  109  U.  S.  283.  27 

iTFink  V.  O'Neil,  106  U.  S.  281.  27  L.  ed.  932,  3  Sup.  Ct.  Ren.  907:  K^'ng 

U.  ed.  199,  1  Sup.  Ct.  Rep.  325.  Bridge  Co.  v.    Otoe  Co.  120  U.  S.  226, 

isEx  parte  Graham.  10  Wall.  542,  30  L.   ed.   623,   7   Sup.   Ct.  Rep.   552; 

19  L.  ed.  981;  United  States  v.  I\Iore,  Anderson  v.  Watt,  138  U.  S.  702,  34 
3  Cranch,  173,  2  L.  ed.  397.  The  As-  L.  ed.  1078.  11  Sup.  Ct.  Rep.  449; 
sessor  v.  Osborne,  9  Wall.  575,  19  L.  Dowell  v.  Applegate.  152  U.  S.  340, 
ed.  748;  Mclntire  v.  Wood,  7  Cranch,  28  L.  ed.  463,  14  Sup.  Ct.  Rep.  611; 
506,  3  L.  ed.  420;  United  States  v.  Hanford  v.  Davies,  163  U.  S.  279,  41 
Eckford,  6  Wall.  488.  18  L.  ed.  920;  L.  ed.  157,  16  Sup.  Ct.  Rep.  1,051. 
Case  of  Sewing  Machines  Cos.  18  sfn  re  Cuddv,  131  U.  S.  285,  33  L. 
Wall.   577,   21   L.   ed.   914.     See   also  ed.  154,  9  Sup.' Ct.  Rep.  703. 

ante,   §   8,  note.[a]  4 See  infra,  note.Cc] 

isHence  justice's  courts  in  the  Dis-  sDes  Moines  Co.  v.  Homestead  Co. 

trict    of    Columbia    have    been    held  123  U.  S.  557,  31  L.  ed.  204,  8  Sup.  Ct. 

neither  inferior  courts  of  the  United  Rep.  220;  Kemps  Lessee  v.  Kennedy, 

States  nor  courts  of  record.     Capitol  5  Cranch,  185.  3  L.  ed.  70;  Baker  v. 

etc.  Co.  V.  Hof,  174  U.  S.  17.  43  L.  ed.  Biddlc,    1    Bald.    394,    Fed.    Cas.    No. 

873,  19  Sup.  Ct.  Rep.  580;  Metropoli-  764;  Farmers',  etc.  Co.  v.  McKinnev, 

tan  Ry.  v.  Church,   174  U.  S.  46,  43  6   McLean,   9,    Fed.    Cas.   No.   4,667; 

L.  ed.  890,  19  Sup.  Ct.  Rep.  878.     See  Brown  v.  Noves.  2  \Aood  &  M.  80,  Fed. 

also  ante,   §   8,  note.   [d]-[b]  Cas.  No.  2,023. 

60 


Frocedure]  JURISDICTION  IS  LIMITED.  §   9   [d] 

parties  until  reversed, 6  and  maj'  not  be  impeached  collaterally. 7  The 
presumptions  are  in  favor  of  Federal  court  judgments  on  collateral  at- 
tack, unless  want  of  jurisdiction  affirmatively  appears. 8  Evidence  to 
prove  that  the  diverse  citizenship  show^n  by  the  record  of  the  Federal 
judgment  did  not  in  fact  exist  is  wholly  inadmissible  on  collateral  at- 
tack.9  It  has  been  held  that  an  admiralty  decree  may  not  be  attacked 
collaterally  on  application  for  prohibition ;io  condemnation  proceedings 
may  not  be  attacked  in  subsequent  ejectment  suit  between  the  parties;  n 
a  judgment  failing  to  show  jurisdiction  may  not  be  treated  as  a  nullity,i2 
or  collaterally  assailed  in  a  State  court  ;13  nor  may  a  State  court  attack 
a  Federal  judgment  collaterally  because  the  record  does  not  show  ground 
for  removal  from  a  State  court.!*  The  judgment  in  a  cause  removed 
without  objection  with  no  showing  of  jurisdiction  is  nevertheless  bind- 
ing until  reversed.15  But  failure  to  show  jurisdiction  is  a  defect  always 
available  on  appeal.is  And  when  the  record  affirmatively  discloses  a 
want  of  jurisdiction,  the  rule  of  course  does  not  apply.i'?  If  the  record 
of  proceedings  before  a  court  inferior  in  the  technical  sense,  e.  g.,  a 
justice  of  the  peace,  does  not  appear  it  has  been  held  that  the  judgment 
is  void,  at  least  in  so  far  as  supporting  proceedings  on  execution. is 

[d]     Jurisdictional   facts   must   be   affirmatively   pleaded. 

The   general   rule   is   that   facts   necessary   to   the   exercise   of   a   special 
jurisdiction  must  appear  of  record. i     The  rule  applies  with  especial  force 

SMcCormick  v.  SuUivant,  10  ^Vl^eat.  330.  38  L.  ed.  467,  14  Sup.  Ct.  Rep.  616. 

199,  6    L.    ed.    302;   Bank  of  United  isErwin  v.  Lowry,  7  How.  180,  12 

States  v.  Moss,  6  How.  39.  12  L.  ed.  L.  ed.  G.58. 

335;Oxley  Stave  Co.  v.  Butler  Co.  16G  i4Dexter  Co.  v.  Sayward,  84  Fed. 

U.  S.  660,  41  L.  ed.  1153,  17  Sup.  Ct.  303. 

Rep.  713.  isDes  Moines,  etc.  Co.  v.  Iowa  Co. 

7Dowell   V.    Applegate.    152   U.    S.  123  U.  S.  558,  31  L.  ed.  202,  8  Sup. 

337,  38  L.  ed.  467,  14  Sup.  Ct.  Rep.  Ct.  Rep.  217. 

615;    Kennedy    v.    Georgia    Bank,    8  leMcCormick      v.      Sullivant.      10 

How.   611,   12  L.  ed.   1219;    Erwin    v.  Wheat.  199,  200,  6  L.  ed.  300;  Bank 

Lowry,  7   How.    180,    12  L.    ed.   658;  of  United  States  v.  Moss,  6  How.  39, 

Ever?  V.  Watson,   1.56  U.  S.  533,   39  12  L.  ed.  335;  Des  Moines  Nav.  Co.  v. 

L.  ed.  523,  15  Sup.  Ct.  Rep.  432:  Cut-  Iowa.  etc.  Co.  123  U.  S.  557,  31  L.  ed. 

ler  V.  Huston,  158  U.  S.  430,  39  L.  ed.  202;  8  Sup.  Ct.  Rep.  217;  Speigel  v. 

1042,  15  Sup.  Ct.  Rep.  871;  Board  of  Meredith,  4  Biss.  127,  Fed.  Gas.  No. 

Comrs.  V.  Piatt,  79  Fed.  571,  25  C.  C.  13,227;   Fideliter  v.  United  States,  1 

A.  87.  Sawy.  156,  1  Abb.    (U.  S.)   579,  Fed. 

sCuddy,  Petitioner,  131   U.  S.  285,  Cas.    No.    4,667;    Metcalf    v.    Water- 

33  L.  ed.  154,  9   Sup.  Ct.  Rep.  704;  town,  128  U.  S.  590,  32  L.  ed.  543.  0 

and  cases   supra.  Sup.  Ct.  Rep.  173. 

sErwin  v.  Lowry,  7  How.  180,  12  inioore  v.  Edgefield,  32  Fed.  501; 

L.  ed.  655;  Holmes  v.  Oreiron,  etc.  R.  Elliott  v.  PeirsoC  1  Pet.  341,  7  L.  ed. 

R.  7  Sawy.  392,  400,  9  Fed.  237,  244,  164;  In  re  Sawyer,  124  U.  S.  221,  31 

and  cases' supra.  L.  ed.  409,  8  Sup.  Ct.  Rep.  493. 

loln  re  Cooper,  143  U.  S.  506,  36  L.  mValker  v.  Turner,  9  Wlieat.  548, 

ed.  243,  12  Sup  Ct.  Rep.  462.  549,  6  L.  ed.  157. 

iiFoltz  V.  Railway  Co.  60  Fed.  318,  iGalpin  v.  Page,  18  Wall.  371,  21  L. 

S  C.  C.  A.  635.  ed.   959;    Ex   parte  Wood,   9  Wheat. 

izDowell   V.   Applegate,   152  U.   S.  607,  6  L.  ed.  171. 

61 


§  9    [d]  FEDERAL  JURISDICTION   IN  GENERAL.  [Code   Fed. 

to  the  Federal  courts  by  reason  of  the  limited  nature  of  their  jurisdic- 
tion, and  makes  it  imperative  that  the  jurisdictional  facts  be  affirmatively 
pleaded. 2  Federal  courts  should  not  take  jurisdiction  either  originally 
or  on  removal,  unless  jurisdictional  facts  appear.3  Where  jurisdiction  of 
Federal  courts  is  invoked  because  of  diverse  citizenship  or  alienage  it  is 
necessary  to  set  forth  the  citizenship  of  the  parties  to  the  suit;*  supple- 
mental parties  as  well  as  original  parties. 5  If  the  citizenship  fairly  ap- 
pears leaving  no  room  for  reasonable  doubt,  it  is  sufficient. «  But  the  aver- 
ments must  be  positive"  and  thej'  must  either  be  admitted  or,  if  contested, 
must  be  proved. *  It  has  been  held  that  defective  averment  in  an  amended 
complaint  is  immaterial  where  the  original  was  adequate. 9  On  appeal 
if  it  appears  that  the  allegation  of  diverse  citizenship  was  put  in  issue  but 
the  record  contains  no  findings  on  such  issue,  the  ease  will  be  reversed 
for  a  trial  thereof. lo  If  it  does  not  appear  that  plaintiff  is  a  citizen  of  a 
particular  State  or  an  alien  the  circuit  court  has  no  jurisdiction.! i  So 
where  removal  is  sought  on  ground  of  diverse  citizenship  the  petition 
must  positively  aver  the  facts,i2  and  averments  of  residence  rather  than 
citizenship  will  not  suffice.is  The  sufficiency  of  averments  of  citizenship 
is  discussed  hereafter. i^  in  suits  by  an  assignee  of  a  chose  in  action  in 
the  Federal  court  this  rule  of  pleading  applies  and  he  must  affirmatively 
show  that  his  assignor  was  also  capable  of  so  suing; is  otherwise  juris- 
diction  will   be   denied.  16     The   rule   applies   also   where   Federal   jurisdic- 

2Confiscation  Cases,  20  Wall.   108,  should  be  contested  by  proper  plead- 

22  L.  ed.  320;  Colorado,  etc.  Min.  Co.  ing.     Every  Eve.  P.  Co.  v.  Butler.  144 

v.  Turck,  150  U.  S.  143,  37  L.  ed.  1030,  Fed.  916. 

14  Sup.  Ct.  Rep.  35.  sToledo  T.  Co.  v.  Cameron,  137  Fed. 

3Bible  Society  v.  Grove,  101  U.  S.  48,  69  C.  C.  A.  28. 

611.  25  L.  ed.  847.  lORoberts  v.  Lewis.  144  U.  S.  658, 

^Bingham  v.  Cabot.  3  Dall.  383,  1  36  L.  ed.  579,  12  Sup.  Ct.  Rep.  781. 
L.  ed.  646;  Assessor  v.  Osbornes,  9  nCapron  v.  VanWoorden,  2  Cranch 
Wall.  574,  19  L.  ed.  748;  Godfrey  v.  126,  2  L.  ed.  229;  Von  Voight  v.  Mich- 
Terry,  97  U.  S.  175,  24  L.  ed.  944;  igan  C.  R.  R.  130  Fed.  398. 
Roberts  v.  Lewis,  144  U.  S.  650,  36  i2Amory  v.  Amorv,  95  U.  S.  187, 
L.  ed.  579,  12  Sup.  Ct.  Rep.  781;  24  L.  ed.  428;  Grace  v.  American  Ins. 
Cameron  v.  Hodges,  127  U.  S.  325,  Co.  109  U.  S.  285,  27  L.  ed.  932,  3  Sup. 
.32  L.  ed.   132,  8  Sup.  Ct.  Rep.  1154;  Ct.  Rep.  207. 

Bors.   V.   Preston,   111    U.   S.    203,  28  isParker  v.  Overman,  18  How.  141, 

L.  ed.  419,  4  Sup.  Ct.  Rep.  407.     See  15   L.    ed.    318;    Pennsylvania   Co.   v. 

Clausen  v.  American  Ice  Co.  144  Fed.  Bender,  148  U.  S.  257,  37  L.  ed.  441, 

723.  13  Sup.  Ct.  Rep.  591.    As  to  removal 

^Course  v.  Stead,  4  Dall.  27,  1  L.  proceedings  see  post,  §  1.33,  et  seq. 

ed.  724.  i4Post,  §§  131,  1.34. 

6 Jones  V.  Andrews,   10  Wall.  331,  isRenjamin    v.    Citv    of   New    Or- 

19  L.  ed.  935.  leans.  169  U.  S.  164,  42  L.  ed.  700.  18 

manford  v.  Davis,   163  U.   S.  279,  Sup.  Ct.  Rep.  298;  Bradley  v.  Rhines, 

41  L.  ed.  157,  16  Sup.  Ct.  Rep.  1051;  8  Wall.  396,  19  L.  ed.  467;  Corbin  v. 

Chapman  v.  Barney,  129  U.  S.  681,  32  Blackhawk  Co.   105  U.   S.  667,  26  L. 

L.  ed.  800,  9  Sup.  Ct.  Rep.  426;  Mat-  ed.  1136;    Parker  v.   Ormsbv,   141   U. 

tingly  V.  N.   W.  Virginia   R.   R.    158  S.  86,  35  L.  ed.  654,  11  Sup.  Ct.  Rep. 

U.  S.  57,  39  L.  ed.  895,  15  Sup.  Ct.  912. 

Rep.  727.  iBMetcalf  v.  Watertown,  128  U.  S. 

s Manufacturing  Co.  v.  Bradlcv,  105  587,   588,   32    L.   ed.    543,   9   Sup.   Ct. 

U.   S.   181,    26    L.    ed.   1034.    "They  Rep.  173;  Brock  v.  Northwestern  Fuel 


Procedure]  JURISDICTION  IS  LIMITED.  §  9   [ej 

tion  is  invoked  because  a  Federal  question  is  alleged  to  be  involved.  This 
must  not  only  appear  from  the  pleadings  but  must  appear  from  the  plain- 
tiff's own  statement  of  his  claim  when  made  in  legal  and  logical  form 
such  as  is  required  by  the  rules  of  good  pleading.! ■?  The  absence  of  proper 
allegation  in  the  bill  or  complaint  cannot  be  cured  by  answer  or  plea  or 
other  subsequent  proceedings.! »  So  also  in  proceedings  to  remove  a 
cause  from  a  State  court  because  arising  under  the  Federal  constitution, 
laws  and  treaties,  this  fact  must  be  apparent  from  plaintiff's  bill  or 
complaint.!  9  The  fact  that  the  amount  in  controversy  exceeds  a  certain 
statutory  sum,  is  generally  a  jurisdictional  fact  and  hence  under  the  rule 
must  affirmatively  appear.  20  But  where  the  circuit  court  permitted  the 
filing  of  affidavits  of  value  sufficient  to  sustain  its  jurisdiction,  at  the  same 
term  decree  was  rendered,  this  has  been  held  allowable.!  in  the  absence 
of  objection  it  has  been  held  sufficient  that  jurisdiction  existed  at  the 
time  of  judgment;  2  or  at  the  time  objection  thereto  was  raised. s  For 
while  consent  cannot  give  jurisdiction,  the  want  of  objection  will  waive 
previous  irregularities.'*  But  want  of  necessary  diverse  citizenship  at 
the  time  of  a  court's  order  of  sale  renders  it  invalid.  5 

[e]     Record  on  appeal  should  show  jurisdictional  facts. 

On  appeal  the  jurisdiction  of  the  lower  court  must  affirmatively  appear 
in  the  record.'?     It  is  not  sufficient  that  jurisdiction  may  be  inferred  ar- 

Co.  130  U.  S.  342,  32  L.  ed.  905,  9  Sup.  chell,  95  Fed.  213.     As  to  amount  in 

Ct.    Rep.    552.     As    to   suits   by   as-  controversy   in   trial   court  see   post, 

signees  see  post,  §  23.  §  129;   on  appeal,  see  post,   §   37,  el 

i7Gibbs  V.  Crandall,  120  U.  S.  108,  passim. 

30  L.   ed.  590,  7   Sup.  Ct.  Rep.  497;  !Carr  v.  Fife,  156  U.  S.  407,  39  L. 

Little,   etc.    Co.   v.    Keyes,   96    U.    S.  ed.  508,  15  Sup.  Ct.  Rep.  427. 

199.  24  L.  ed.  606;  Blackburn  v.  Port-  2Pacific  R.  R.  v.  Ketchum,  101  U. 

land  C.  M.  Co.  175  U.  S.  571.  44  L.  ed.  S.  298.  25  L.  ed.  932. 

276,  20  Sup.  Ct.  Rep.  222;  Press  Pub.  sRjchardson  v.  Green,  61  Fed.  436, 

Co.  v.  Monroe,  164  U.  S.  110,  41  L.  ed.  9  C.   C.  A.  565;   First  Nat.  Bank  v. 

367,    17    Sup.   Ct.   Rep.   40;    Muse   v.  Radford   Trust   Co.   80   Fed.   572,   26 

Arlington  Hotel  Co.  168  U.  S.  430,  42  C.   C.  A.   1. 

L.  ed.'^531.  18  Sup.  Ct.  Rep.  109;  Met-  ^Tbid. 

calf   V.    Watertown,    128    U.    S.    589,  5Baltimore,  etc.  Assn.  v.  Alderson, 

590,  32  L.   ed.   543,  9   Sup.   Ct.  Rep.  90  Fed.  146,  32  C.  C.  A.  542. 

173;    Borgmeyer  v.   Idler,   159   U.   S.  ^Emory  v.  Greenough,  3  Dall.  370, 

413,  40  L.  ed.   199,  16  Sup.  Ct.  Rep.  1    L.   ed.   640;    Turner   v.    Enville.   4 

34;  Western  U.  T.  Co.  v.  Ann  Arbor,  Dall.  8,    1    L.    ed.    717;    Jackson    v. 

etc.  R.  R.  178  U.  S.  239,  44  L.  ed.  1052,  Twenty  man,  2  Pet.  136,  7  L.  ed.  374; 

20  Sup.  Ct.  Rep.  867.  Jackson  v.  Ashton,  8  Pet.  149,  8  L. 

iSTennessee  v.  Union  Bank,  152  U.  ed.  898;  Keene  v.  Whittaker.  13  Pet. 

S.  461.  38  L.  ed.  511.  14  Sup.  Ct.  Rep.  459.  10  L.  ed.  246;   Edwards  v.  Tan- 

654;  Third  St.  etc.  Ry.  v.  Lewis,  173  neret,    12   Wall.   450.   20  L.   ed.   415; 

U.  S.  460,  43  L.  ed.  766,  19  Sup.  Ct.  Robertson  v.  Cease,  97  U.  S.  648,  24 

Rep.  451.  L.  ed.   1057;   Grace  v.  Insurance  Co. 

!9Post,  §   133.  109  U.  S.  284,  27  L.  ed.  935,  3  Sup. 

2  0Lanning  v.  Dolph,  4  Wash.  C.  C.  Ct.  Rep.  211;   Mansfield,  etc.  Ry.  v. 

624,   Fed.    Cas.    No.    8,073;     United  Swan,   111   U.  S.  382,  844,  28  L.  ed. 

States  V.  Pratt  Coal  Co.  18  Fed.  708;  462.  4  Sup.  Ct.  Rep.  510;   Stevens  v. 

Pliable   Shoe  Co.  v.  Brvant,  81   Fed.  Nichols,  130  U.  S.  231,  32  L.  ed.  914, 

521;   Yellow  Aster  Min.  Co.  v.  Win-  9  Sup.  Ct.  Rep.  518. 

63 


§   9    [f] 


FEDERAL   JURISDICTION    IN  GENERAL. 


[Code   Fed. 


gumentatively  from  the  facts  stated. s  It  should  appear  in  the  record 
proper,  and  not  merely  in  papers  surreptitiously  introduced  for  that  pur- 
pose. 9  The  jurisdictional  amount  must  appear  from  the  record  or  affi- 
davits filed  for  the  purpose.io 


I 


[f]  Waiver, — failure   to   object — and  jurisdiction  by   consent. 

Parties  cannot  enlarge  the  Federal  judicial  power  by  consent,  and  failure 
to  object  cannot  cure  a  want  of  power  in  the  Federal  courts  to  enter- 
tain the  cause. 12  A  personal  privilege,  or  rule  of  procedure  or  venue  en- 
acted for  the  benefit  of  suitors,  may  be  waived,  Vjut  not  a  defect  of  power 
in  the  court. 1 3  Thus  objection  to  removal  proceedings  because  petition 
therefor  was  filed  too  late,  may  be  waived.i*  So  appearance  and  pleading 
to  the  merits  may  waive  a  failure  to  bring  suit  in  the  proper  district.! 5 
But  failure  to  object  to  the  want  of  diverse  citizenship  cannot  thus  be 
waived.  16 

[g]  Court  should  notice  want  of  jurisdiction  and  dismiss. 

It  is  the  court's  duty  to  notice  the  want  of  jurisdiction  sua  sponte,!'' 
but  it  should  give  plaintiff  an  opportunity  to  be  heard  before  dismissing 
cause.18  Since  the  act  of  1875  a  statute  has  required  the  circuit  court  to 
dismiss  or  remand  a  cause  not  properly  within  its  jurisdiction.!  9     A  de- 


sOxley    Stave    Co.    v.    Butler    Co.  i^Martin  v.   Baltimore,  etc.  R.  R. 

166  U.  S.  055,  41  L.  ed.  1149,  17  Sup.  151  U.  S.  688.  38  L.  ed.  311,  14  S;ip.  Ct. 

Ct.  Rep.  709.  Rep.  533;   Connell  v.  Smiley,  156  U. 

9Denny  v.  Pironi,  141  U.  S.  125,  35  S.  339.  39  L.  ed.  444,  15  Sup.  a.  Rep. 

L.    ed.    657.    11    Sup.    Ct.    Rep.    966;  354;  Knight  v.  International,  etc.  Ry. 

Sullivan  v.  Fulton  Steamboat  Co.  6  61  Fed.  90,  9  C.  C.  A.  376;  Newman 

Wheat.  451,  5  L.  ed.  302.  v.  Schwerin,  6\  Fed.  870,  10  C.  C.  A. 

lOHagan  v.  Folsom,  10  Pet.  160,  9  129;  Collins  v.  Stott,  76  Fed.  614. 

L.  ed.  381;   Huntington  v.  Saunders,  isjones  v.  Andrews,  10  Wall.  332, 

163  U.  S.  321,  41  L.  ed.  174,  16  Sup.  19  L.  ed.  935;   St.  Louis,  etc.  Ry.  v. 

Ct.  Rep.  1120.  McBride,  141  U.  S.  131,  35  L.  ed.  659, 

i2Cutler  V.  Rae,  7  How.  731,  12  L.  11  Sup.  Ct.  Rep.  982;   Central  Trust 

ed.  890;  Kelsev  v.  Forsyth,  21  How.  Co.  v.  McGeorge,  151  U.  S.  133,  38  L. 

88,  16  L.  ed.  32;  Ballance  v.  Forsyth,  ed.   98,    14   Sup.  Ct.  Rep.  286;    In   re 

21  How.  389.  16  L.  ed.  143;  The  laicy,  Keasbey,  160  U.  S.  229.  40  L.  ed.  402, 

8  Wall.  309,  310,  19  L.  ed.  394;  Con-  16  Sup.  Ct.  Rep.  273. 

fiscation  Cases,  20  Wall.  108,  22  L.  ed.  leDred  Scott  v.  Sandford,  19  How, 

320;    Peoples'  Bank  v.   Calhoun,   102  402,  427,  15  L.  ed.  691;  Pennsylvania 

U.  S.  260.  20  L.  ed.  101;  Elgin  v.  Mar-  R.  R.  v.  St.  Louis,  etc.  R.  R.  118  U. 

shall,   106  U.   S.  580.   27   L.  ed.   249,  S.  295,  30  L.  ed.  83,  6  Sup.  Ct.  Rep. 

1    Sup.   Ct.  Rep.   484;    Bvers   v.    Mc-  1094;    Parker  v.   Ormsbv,   141    U.    S. 

Caulev,  149  U.  S.  618,  37  L.  ed.  867,  86,   35  L.   ed.   654,   11    Sup.  Ct.  Rep. 

13   Sup.  Ct.  Rep.  906;    Minnesota  v.  912. 

Hitchcock,   185   U.   S.   382,   46  L.   ed.  "Empire  Coal,  etc.  Co.  v.  Empire 

958,  22  Sup.  Ct.  Rep.  650;  Iowa,  etc.  Min.  Co.  1.50  U.  S.  163,  37  L.  cd.  1037, 

Co.  v.  Bliss,  144  Fed.  446.  14    Sup.    Ct.    Rep.    66;    Minnesota   v. 

isFourniquet   v.    Perkins,   7    How.  Hitchcock,   185  U.   S.   382,  46  L.  ed. 

171,   172,   12  L.   ed.   650;   Jackson   v.  958,  22  Sup.  Ct.  Rep.  650. 

Ashton,  8  Pet.  149.  8  L.  ed.  898  (de-  isHartog  v.  Memory,  116  U.  S.  591, 

cided  inferentiallv) ;  Mexican,  etc.  R.  592,  29  L.  ed.  725,  6   Sup.  Ct.   Rep. 

R.  V.  Davidson,  157  U.  S.  208,  39  L.  521. 

ed.  672,  15  Sup.  Ct.  Rep.  563.  laPost,  §  818. 

64 


Procedure]  JURISDICTION  IS  LIMITED,  §  9   [h] 

feet  of  jurisdiction  jnay  be  raised  at  any  stage  of  the  cause  and  even  by 
the   party   at  whose   instance   jurisdiction   was  taken. 20 

£h]  Amendment  of  pleadings  or  record  to  permit  showing  of  jurisdiction. 
Where  failure  of  pleadings  to  show  jurisdiction  is  raised  in  trial  court 
it  should  permit  amendment  for  the  purpose  of  remedying  the  defect.i 
Where  the  Supreme  Court  has  reversed  and  remanded*  a  cause  for  failure 
of  record  to  show  jurisdiction  in  the  lower  court,  the  latter  may  permit 
amendment  to  show  that  jurisdiction  really  existed  when  suit  brought, 
if  the  facts  warrant  it. 2  Or  the  Supreme  Court  in  its  mandate  may  di- 
rect that  amendment  be  permitted.s  WTiere  it  is  apparent  that  the  de- 
fect is  not  merely  in  the  pleadings  but  in  the  absence  of  facts  warranting 
Federal  jurisdiction  an  appeal  will  be  dismissed  if  judgment  went  for  de- 
fendant, and  the  cause  will  be  reversed  with  directions  to  dismiss  the  com- 
plaint, if  judgment  below  went  for  plaintiff.  *  But  where  the  lower  court 
had  dismissed  a  bill  on  other  than  jurisdictional  grounds  the  Supreme  Court 
finding  a  want  of  jurisdiction,  reversed  the  decree  of  dismissal  below  and 
directed  dismissal  for  want  of  jurisdiction. 5  It  is  settled  that  the  record 
may  not  be  amended  in  the  Supreme  Court  to  establish  the  jurisdic- 
tion of  the  court  below,6  unless  by  consent.'  The  cases  permitting  amend- 
ment of  the  record  by  consent  are  early  cases;  and  as  the  question  is  one 
of  practice  rather  than  of  power  in  the  court,  such  a  proceeding  might 
not  be  permitted  today  because  of  the  greater  opportunity  for  imposition 
upon  the  court's  jurisdiction  afforded  by  amendment  in  the  appellate  rather 
than  in  the  trial  court. 


2  0Martin  v.  Baltimore,  etc.  R.   R.  21    L.   ed.457;    Stickney   v.   Wilt,  23 

151  U.  S.  689.  33  L.  ed.  311,  14  Sup.  Wall.   162,   1G3,  23  L.  ed.  50;   Black- 

Ct.  Rep.  533.     See  post,   §   818,  and  lock  v.  Small,  127  U.  S.  105,  32  L.  ed. 

note.  70,  8  Sup.  Ct.  Rep.  1096. 

iHoward  v.  DeCordova.  177  U.  S.  sWhittemore    v.    Amoskeag    jSTat. 

€14,  44  L.  ed.  911,  20  Sup.  Ct.  Rep.  Bank,  134  U.  S.  530,  33  L.  ed.  1002,  10 

817.  Sup.  Ct.  Rep.  592. 

2Jackson  v.  Ashton,  10  Pet.  481,  9  ^Montgomery  v.  Anderson,  21  How. 

L.   ed.   502;    Halstead  v.   Buster,   119  388,   16  L.  ed.   160;    Continental   Ins. 

U.  S.  342,  30  L.  ed.  402,  7  Sup.  Ct.  Co.  v.  Rhoades,  119  U.  S.  240,  30  L.  ed. 

Rep.   276;    King  Bridsje   Co.   v.   Otoe  380,  7  Sup.  Ct.  Rep.  193;  Cameron  v, 

Co.   120  U.  S.   227,   30  L.   ed.  623,  7  Hodges,  127  U.  S.  326,  32  L.  ed.  132, 

Sup.  Ct.  Rep.  552;  ]\Ienavd  V.  Goirgan,  8    Sup.     Ct.     Rep.     1154;     Dennv    v. 

121   U.  S.  253,  254,  30  L.  ed.  914,  7  Pironi,  141  U.  S.  124,  35  L.  ed.  ^658, 

Sup.  Ct.  Rep.  873;  Roberts  v.  Lewis,  11  Sup.  Ct.  Rep.  967. 

144  U.  S.  658,  3G  L.  ed.  579,  12  Sup.  -Hodgson  v.  Bowerbank,  5  Cranch, 

Ct.  Rep.  781;  Metcalf  v.  Watertown.  304,  3  L.  ed.  308;  Kennedy  v.  Georgia 

128  U.  S.  590,  32  L.  ed.  543,  9  Sup.  State   Bank,   8   How.   611,   12   L.   ed. 

Ct.  Rep.  173.  1209;  Warren  v.  Moody,  9  Fed.  673; 

3The  Sarah,  8  T\Ticat.  395,  5  L.  ed.  United   States   v.   Hopewell,   51    Fed. 

644;  Morgan  v.  Gay,  19  Wall.  81,  22  800.  2  C.  C.  A.  510;  Fitchbnrg  Co.  v. 

L.  ed.  100;  Robertson  v.  Cease,  97  U.  Nichols,  85  Fed.  870.  29  C.  C.  A.  464. 

S.  651,  24  L.  ed.  1057.  See  Jackson  v.  Ashton,   10  Pet.  480, 

4Morris  V.  Cotton,  8  Wall.  511,  512,  9   L.   ed.   502,   where   amendment   of 
19  L.  ed.  481 ;  Assessor  v.  Osbornes,  9  record   at   subsequent   term   was  re- 
Wall.    575,     19     L.     ed.    748;    United  fused. 
States  V.  Huckabee,  16  Wall.  435,  436, 
P'cd.  Proc. — 5.                                  65 


§  10  FEDERAL  JURISDICTION  IN  GENERAL.  [Code  Fed. 

§  10.     What  law  administered. 

The  jurisdiction  of  Federal  courts  extends  to  many  matters  of 
controvers}'  quite  beyond  the  legislative  powers  of  Congress.^*^  Its 
power  to  establish  Federal  courts,  and  prescribe  their  jurisdiction 
and  modes  of  procedure,  does  not  enlarge  the  power  of  legislation 
conferred  by  the  Constitution,  so  as  to  include  the  substantive  law  to 
be  administered  in  the  decision  of  causes  there  cognizable.^ ^  It 
follows  therefore  that  as  to  matters  of  controversy  beyond  the  legis- 
lative powers  of  Congress  the  courts  must  look  elsewhere  for  the 
law  to  be  administered.  Under  our  form  of  government  most 
matters  outside  the  legislative  powers  of  Congress  are  committed 
to  the  full  control  of  the  States.  To  them  the  national  courts 
must  accordingly  look  for  the  law  by  which  rights  in  controversy 
committed  to  their  control,  are  measured  and  adjudged.  To  de- 
clare otherwise  would  be  to  affirm  a  power  in  Federal  courts  to  do 
what  Congress  itself  cannot  do,  viz.,  to  legislate  in  a  national 
way  as  to  matters  committed  to  the  local  rather  than  the  national 
government.  Plainly  such  a  doctrine  would  subvert  the  distri- 
bution of  powers.  Federal  and  State,  provided  by  the  organization 
of  our  government.  Hence  it  may  be  said  that  the  law  adminis- 
tered is  local  where  the  subject  matter  is  committed  to  complete 
local  legislative  control, f'*^^''^^^  and  national  when  committed  to 
the  legislative  control  of  Congress. '^'^"^p^  This  principle  does  not, 
however,  quite  cover  all  the  ground.  There  are  matters  not  fully 
within  the  legislative  control  of  the  States  and  not  committed  to 
Congress,  as  to  which  the  States  can  do  no  more  than  declare  the 
rules  that  shall  govern  their  own  courts.  Questions  of  comity  or 
of  private  international  law  are  involved  in  determining  whether 
a  right  of  action  will  be  enforced,  which  arises  under  the  laws  of 
another  State  or  foreign  country,  and  whether  the  law  of  the  place 
of  contract  or  of  the  forum  shall  be  made  the  measure  of  contract 
rights  of  a  transitory  nature.  It  may  well  be  that  the  Federal 
courts  are  not  bound  to  follow  the  principles  of  private  international 
law  laid  down  by  the  courts  of  the  State  where  they  are  sitting. "^^^ 
There  is  also  a  line  of  Federal  cases  affirming  the  right  of  Federal 
courts  to  administer  principles  of  general  commercial  law  generally 
accepted,  in  disregard  of  the  decisions  of  the  local  courts  and 
sometimes   even   of   local    statutes. '^'"^"'^'^^     Questions  of  the  law  to 

10 Ante,  §  1. 
iiPost,  §  799. 


i 


Procedure]  WHAT   LAW  ADMINISTERED.  §   10    [a] 

be  administered  arise  only  in  causes  tried  in  a  Federal  court  and 
not  in  State  cases  taken  by  Avrit  of  error  to  the  supreme  court. ^^'^ 
Author's  Section. 

[a]  Local  law  administered  where  matter  in  controversy  is  within  do- 
main of  local  legislation — equity  cases. 
Congress  has  provided  that  State  laws  shall  be  rules  of  decision  in  the 
Federal  courts  where  they  apply,  in  actions  at  law.12  If  the  propositions 
stated  in  the  foregoing  Code  section  be  sound,  however,  it  is  plain  that 
this  legislation  of  Congress  is  largely  a  mere  declaration  of  a  result  that 
naturally  and  necessarily  follows  in  the  absence  of  statute.  Moreover  the 
applicability  of  the  rule  declared  by  the  statute  would  not  be  and  should 
not  be  limited  to  actions  at  law,  and  must  apply  with  equal  force  to  equity 
causes.  An  examination  of  the  cases  shows  this  to  be  substantially 
true,  although  a  few  cases  have  been  led  by  the  wording  of  the  act  into 
•suggesting  the  contrary.is  The  fact  that  the  statute  does  not  in  terms 
cover  equity  cases,  prevents  the  confusion  of  law  and  equity  cases  that 
might  result  in  some  jurisdictions.  But  it  is  submitted  that  it  does  not 
leave  the  equity  courts  free  to  ignore  the  local  law  in  measuring  and  ad- 
judging rights  in  controversy  before  them  that  have  been  committed  to 
the  local  law  making  power.n  A  party's  substantive  equitable  rights  are 
the  same  in  the  local  Federal  as  in  the  State  court. 15  Congress  has  pro- 
vided under  its  power  to  prescribe  procedure  a  system  of  equity  practice 
and  procedure  which  obtains  uniformly  in  all  the  States  and  which  the 
States  may  not  regulate  or  alter.is  But  this  merely  renders  uniform  the 
modes  of  enforcing  equitable  rights.  It  does  not  and  cannot  establish 
uniform  rules  for  testing  the  existence,  scope  and  validity  of  rights  them- 
selves. The  Federal  cases  dealing  with  the  familiar  equity  matter  of 
mortgage  foreclosure  illustrate  this.  A  right  of  redemption  after  fore- 
closure is  a  substantial  right  which  the  legislative  power  of  a  State  may 
create.  Hence  the  Federal  equity  practice  of  decreeing  sale  without  right 
of  redemption  cannot  avail  to  control  or  defeat  this  right. i'  The  Fed- 
eral court  must  therefore  alter  its  practice  so  as  to  protect  this  right 
although   it   may   adopt   its   own    mode   of   securing  it. is     The   authorities 

i2See  post,  §  12.  1 7Brine  v.  Hartford  Ins.  Co.  9fi  U. 

i3See  Neves  v.  Scott,  13  How.  271,  S.  6.34.  24  L.  ed.  861,  Orvis  v.  Powell, 

14   L.  ed.    140:   Russell   v.    Southard.  98  U.  S.  178.  25  L.  ed.  2.39;   Swift  v. 

12  How.  148,  13  L.  ed.  931;  Lamb  v.  Smith.  102  U.  S.  4.50.  26  L.  ed.   196; 

Starr.  Deadv,  364.  Fed  Cas.  No.  8.021 ;  Jackson,   etc.  Co.   v.  Burlinirton.  etc. 

Breeden  v.  Lee.  2  Hughes,  488,  Fed.  R.   R.   24   Blatchf.   196.  29    Fed.  475; 

Cas.  No.  1.828:    Howards   v.    Selden,  Singer  Mfg.  Co.  v.  McCollock,  24  Fed. 

5  Fed.  473,  4  Hughes.  .300.    See  Klenk  669;   Deck  v.  Whitman.  96  Fed.  884; 

V.  Byrne,  143  Fed.  1011.  where  local  Hammock  v.  Ixian  Co.  105  IT.  S.  88, 

statute  as  to  tender  held  not  binding.  26  L.  ed.  1111  :  Benedict  v.  St.  Joseph 

i4See   Independent   Dist.   v.   Beard,  etc.  R.  R.  19  Fed.  176.  and  see  Hag- 

83  Fed.  15.  gart  v.  Wilczinski,  143  Fed.  22. 

isSoe  Ewine  v.   St.  Louis,  5  Wall.  isAllis   v.   Northwestern,   etc.    Ins. 

413,  18  L.  ed.  657.  Co.  97  U.  S.  144.  24  L.  ed.  1008;  Con- 

isSee  ante,  §  5.  necticut,   etc.    Ins.    Co.    v.   Cushman, 

67 


§   10   [a]  FEDERAL  JURISDICTION   IN   GENERAL.  [Code  Fed. 

further  show  that  in  foreclosure  suits  the  Federal  courts  sitting  in  equity 
habitually  recognize  and  administer  the  State  law  and  measure  and  ad- 
judge rights  thereby.  As  for  example  in  allowing  attorney  fees;i9  in  de- 
termining the  eflfect  of  an  assignment  of  mortgage  or  note: 20  in  deter- 
mining the  suflficiency  of  notice  of  sale;i  in  adjudging  the  right  to  rents 
and  profits  pending  foreclosure;  2  as  to  precedence  of  a  judgment  to  a 
mortgage  lienjS  in  holding  removal  of  machinery  from  mortgaged  prem- 
ises, released  it  from  mortgage;*  in  determining  the  order  in  which  parcels 
of  land  sold  shall  be  subjected  to  payment  of  the  mortgage; 5  as  to  the 
lien  of  a  mortgage  not  properly  acknowledged;  6  and  in  determining  wheth- 
er a  conditional  deed  of  trust  is  a  mortgage. ^  State  laws  respecting  the 
recording  of  mortgages; 8  as  well  as  various  other  state  mortgage  laws;9 
and  State  decisions  establishing  a  rule  as  to  the  effect  of  noncompliance 
therewith,! 0  and  as  to  the  validity  of  foreclosure  sale  in  suit  where 
only  mortgagor's  administrator  is  made  defendant,!  1  have  all  been  held 
binding  on  the  Federal  courts.  These  holdings  are  certainly  not  in 
obedience  to  the  mandate  of  Congress,  since  Congress  makes  State  laws 
the  rule  of  decision  only  in  actions  at  law.  They  are  necessarily,  it  is 
conceived,  a  recognition  of  the  principles  of  the  foregoing  code  section. 
State  statutes  giving  a  remedy  at  law  upon  mortgages  12  would  not  fall 
within  the  principle  requiring  a  Federal  court  to  follow  the  State  law;  nor 
perhaps  would  a  statute  giving  a  right  to  a  deficiency  decree  on  fore- 
closure.! 3  In  the  latter  case  the  Supreme  Court  refused  to  apply  this 
law  to  a  Federal  foreclosure  in  equity  because  subverting  the  rule  that 
Federal  equity  practice  is  uniform  throughout  the  States. 

All  examination  of  other  cases  in  which  parties  have  proceeded  in  equity 
in  the  Federal  courts,  shows  them  equally  attentive  to  the  mandate  of  the 
local  law  in  measuring  equitable  rights  properly  within  the  local  legislative 
control.  Thus,  a  State  law  piroviding  that  a  decree  ordering  a  conveyance 
might  stand  as  such  conveyance  on  failure  of  party  to  obey  the  decree, 

108  U.  S.  60,  27  L.  ed.  651,  2   Sup.  ^Union  Bank  of  Chicago  v.  Kansas 

Ct.  Rep.  238.  City  Bank.  136  U.   S.  235,  34  L.  ed. 

iSBendey  v.   Townsend,  109  U.  S.  345,  10  Sup.  Ct.  Rep.  1017. 

668,  27  L.'ed.   1066.  3  Sup.  Ct.  Rep.  sTownsend  v.  Todd,  91   U.  S.  453, 

485;  Gray  v.  Havemeyer,  53  Fed.  179,  23  L.  ed.  413. 

3  C.  C.  A.  497.  sRussell  v.  Ely,  2  Black.  578,  17  L. 

aoiSTew  York,  etc.  Co.  v.  Lombard  ed.   258:    Bondurant   v.   Watson,   103 

Ins.  Co.  65  Fed.  274.  U.  S.  288,  26  L.  ed.  447;  Abraham  v. 

iBacon    v.   TsTorthwestern    Ins.    Co.  Casey,  179  U.   S.  210,  45  L.  ed.  156, 

131  U.  S.  265,  33  L.  ed.  131,  9  Sup.  21  Sup.  Ct.  Rep.  88. 

Ct.  Rep.  790.  loStafford  Nat.   Bank   v.   Sprague. 

2Union  Mut.  etc.  Co.  v.  Union  Co.  17  Fed.  788.  21  Blatchf.  473;  United 

37  Fed.  292.  3  L.R.A.  93.  States  v.  Athens  Armory,  2  Abb.  145, 

sSouthern  R.  Co.  v.  Bouknight,  70  Fed.  Cas.  No.  14,473. 

Fed.  446,  30  L.R.A.  826,  17  C.  C.  A.  i!Hearr!eld  v.  Bridges.  75  Fed.  51, 

181.  21  C.  C.  A.  212. 

4Weill  v.  Thompson,  24  Fed.  15.  .i2The  uracie  May.  72  Fed.  283,  18 

sOrvis  V.  Powell,  98  U.  S.  177,  25  C.  C.  A.  559. 

L.  ed.  238.  i3Noonan  v.  Lee,  2  Black,  .509,  17 

GCumberland    B.    &     L.     Assn.    v.  L.  ed.  278.     At  the  next  term  after 

Sparks,  106  Fed.  101.  this   decision,   the   92nd   equity   rule 

68 


Procedure]  WHAT  LAW  ADMINISTERED,  §   10   [aa] 

is  available  in  aid  of  an  equity  decree  of  the  Federal  court. i*  A  suit  in 
equity  for  cancelation  of  a  usurious  contract  may  be  maintained  in  the 
Federal  court  under  a  State  statute  giving  such  a  right,  and  the  State  rule 
that  plaintiff  need  not  offer  to  do  equity  overrides  the  established  princi- 
ple of  equity  to  the  contrary  and  must  be  recognized  by  the  Federal 
court.15  In  a  suit  to  establish  a  trust  in  an  insolvent  bank's  funds  the 
State  rule  as  to  the  particularity  of  the  identification  necessary,  will  con- 
trol the  Federal  court  in  equity. 1 6  In  a  suit  to  charge  purchasers  at  fore- 
closure sale  with  a  trust  by  agreement,  the  State  statute  of  frauds  was 
held  by  the  Federal  court  in  equity  to  be  controlling; it  in  other  cases 
the  local  statute  of  frauds  has  been  applied  by  the  Federal  courts  sitting 
in  equity.18  So  also  a  local  statute  construed  by  the  State  courts  as  giving 
one  filing  a  creditor's  bill  a  lien  for  his  costs,  will  be  followed  by  the  Fed- 
eral court.  19  In  a  Federal  equity  suit  for  specific  performance  a  State 
decision  that  a  deed  was  not  in  fraud  of  creditors  has  been  followed.  20 
In  all  these  cases  in  which  local  law  is  administered  in  equity,  emphasis 
was  laid  upon  the  fact  that  the  subject  matter  in  dispute  was  something 
over  which  the  State  had  control  and  as  to  which  its  laws  and  deci- 
sions created  rules  of  property. 

[aa]     Local  laws  enlarging  equitable  rights. 

The  decisions  holding  that  the  Federal  courts,  will  administer  an  en- 
largement of  equitable  rights  created  by  State  law,  further  corroborate 
the  doctrine  of  the  code  section.  It  was  early  decided  that  the  Federal 
coiirts  will  enforce  a  new  remedy  created  by  State  lawi  and  this  princi- 
ple applies  quite  as  fully  to  new  equitable  remedies. 2  Even  though  the 
process  act  adopts  State  procedure  only  in  actions  at  law.3  Hence  a  State 
law  enlarging  the  ordinary  equitable  action  to  quiet  title  and  remove  a 
cloud  may  be  administered  in  a  Federal  equity  cause;*  so  also  a  law  per- 

was    adopted,    permitting    deficiency  i^Buhl   v.   Stephens,  84  Fed.  926; 

decrees  on   foreclosure.     See  post,   §  Press  Pub.  Co.  v.  Folk.  .59  Fed.  327; 

1093.     See  Wliite  v.  Ewing.  60  Fed.  Moses  v.  Lawrence  Co.  Bank.  149  U. 

454.  16  C.  C.  A.  296.     This  principle  S.  ,303,  37  L.  ed.  743,  13  Sup.  Ct.  Rep. 

of  Noonan  v.  Lee,  though  recognized  900. 

at   circuit,    has    not    received    subse-  is.Johnston  v.  Straus,  2G  Fed.  69. 

quent   endorsement  by   the   Supreme  2  0Mnulton  v.  Cliafee,  22  Fed.  28. 

Court    and   seems    at    variance   with  iRobinson  v.   Campbell,   3   Wheat. 

the  other    cases  noted    above.       See  223,  4  L.  ed.  372. 

Book   VI.   U.   S.  Notes,   p.   208   if.  zClark  v.  Smith.  13  Pet.  203,  10  L. 

i^Langdon  v.  Sherwood,  124  U.  S.  ed.    123;    Broderick's   Will,    21    Wall. 

82,  31  L.  ed.  346.  8  Sup.  Ct.  Rep.  431 ;  520.  22  L.  ed.  606:  Holland  v.  Challen, 

Sprague  Mf?.  Co.   v.   Hoyt,   29   Fed.  110  U.  S.  24.  28  L.  ed.  5.5.  3  Sup.  Ot. 

428.  Rep.  495;  Rich  v.  Braxton.  158  U.  S. 

i5Missouri.  K.  &  T.  Co.  v.  Krum-  415.  39  L.  erl.  1032.  15  Sup.  Ct.  Rep. 
seig,  172  U.  S.  359,  43  L.  ed.  477,  i9  1,017;   Illinois,  etc.  Ins.  Co.  v.  New- 
Sup.  Ct.  Rep.  182;   Sharon  v.  Terry,  man,  141  Fed.  449. 
36  Fed.  337,  13  Sawy.  409,  1  L.R.A.  spost.  §  900. 
572.  4WicklifTe  v.  Owings,  17  How.  51. 

1  eindependent   Dist.   v.    Beard,   83  15  L.  ed.  46;  Harmer  v.  Cw^-nne.  5 

Fed.  5.  McLean.    317,    Fed.    Cas.    No.    6.075; 

iTRandall  v.  Howard,  2  Black,  589,  Goldsmith  v.  Gilliland.  22  Fed.  866,  10 

17  L.  ed.  269.  Sawy.  606;   Prentice  v.  Duluth,  etc. 

69 


i  10  [aa] 


FEDERAL  JURISDICTION   IN   GENERAL. 


[Code  Fed. 


mitting  suit  to  set  aside  a  tax  deed; 5  a  law  pemitting  bill  to  remove  a 
cloud  and  quiet  title  by  one  out  of  possession  against  defendants  not  in 
possession; 6  a  law  permitting  a  stoc'.holder  or  creditor  of  an  insolvent 
corporation  to  apply  for  a  receiver;  7  a  law  providing  lien  for  street  work 
and  directing  method  of  its  enforcement; 9  a  State  law  permitting  parties 
to  suit  to  quiet  title  to  be  brought  in  by  publication; lo  State  statutes 
providing  for  partition  suits; n  and  for  interpleader;  12  the  Illinois  law 
providing  for  equitable  proceedings  under  "Burnt  Records  Act."i3  A  State 
law  allowing  proceedings  to  quiet  title  against  a  tax  deed;i4  or  suit  by  one 
in  possession  of  land,  to  settle  an  adverse  claim;i5  a  State  law  permitting 
a  bill  for  discovery;i6  providing  for  injunction  against  illegal  taxation;!'? 
regulating  suits  for  specific  performance. is  The  fact  that  the  State  law 
or  decisions  permit  a  bill  in  equity  does  not  necessarily  mean  that  the 
Federal  court  will  do  the  same.  The  proceeding  authorized  must  be  es- 
sentially equitable  in  nature  and  there  must  be  an  absence  of  any  ade- 
quate remedy  at  law.  If  there  is  adequate  remedy  at  law  or  if  the 
remedy  given  by  the  State  law  is  not  essentially  of  an  equitable  nature, 
the  Federal  court  will  grant  relief  at  law,  though  the  State  statute  declare 
the  remedy  to  be  in  equity. 19  Where  there  is  no  local  statute  permitting 
bill  to  remove  a  cloud  by  one  out  of  possession  the  Feieral  court  cannot 


Co.  58  Fed.  442,  7  C.  C.  A.  293 ;  Chan- 
man  v.  Brewer.  114  U.  S.  171.  29  L. 
ed.  88,  5  Sup.  Ct.  Rep.  805;  Bardon 
V.  Land.  etc.  Co.  157  U.  S.  330,  39  L. 
ed.  720.  15  Sim.  Ct.  Rep.  650;  Clark  v. 
Smith,  13  Pet.  195,  10  L.  ed.  123; 
Holland  v.  Challen,  110  U.  S.  24,  28 
L.  ed.  55,  3  Sup.  Ct.  Rep.  495. 

5Rich  V.  Braxton,  158  U.  S.  405,  39 
L.  ed.  1022,  15  Sup.  Ct.  Rep.  1017. 

6Dick  V.  Foraker,  155  U.  S.  415, 
39  L.  ed.  205,  15  Sup.  Ct.  Rep.  124; 
More  V.  Steinbach,  127  U.  S.  84,  32 
L.  ed.  56,  8  Sup.  Ct.  Rep.  1.073; 
Frost  V.  Spitlcr,  121  U.  S.  552,  30  L. 
ed.  1010,  7  Sup.  Ct.  Rep.  1129;  Hard- 
ing V.  Guice,  80  Fed.  164,  25  C.  C.  A. 
352;  Doe  v.  Waterloo,  etc.  Co.  43  Fed. 
222,  17  C.  C.  A.  190;  Willitt  v.  Baker, 
133  Fed.  937 ;  Revnolds  v.  Crawfords- 
ville,  etc.  Bank,  112  U.  S.  410,  28  L. 
ed.  736,  5  Sup.  Ct.  Rep.  216;  Wehr- 
man  v.  Conklin,  155  U.  S.  324,  39  L. 
ed.  172,  15  Sup.  Ct.  Kep.  132.  See 
Coldsmith  v.  Gilliland.  22  Fed.  860. 
10  Sawy.  606;  United  States  Min.  Co. 
v.  Lawson,  134  Fed.  769,  67  C.  C.  A. 
587. 

■^Land,  etc.  Trust  Co.  v.  Asphalt 
Co.  127  Fed.  18  if;  Jacobs  v.  Mexican 
J.  Co.  130  Fed.  589. 


9Fitch  v.  Creighton,  24  How.  163. 
16  L.  ed.  598. 

lOArndt  v.  Griirgs,  134  U.  S.  325, 
33  L.  ed.  921,  10  Sup.  Ct.  Rep.  560. 

iiGreelev  v.  Lowe,  155  U.  S.  75, 
39  L.  ed.  "75,  15  Sup.  Ct.  Rep.  28; 
Aspen,  etc.  Co.  v.  Rucker.  28  Fed. 
222. 

12 Wells  Fargo  Co.  v.  Miner,  25 
Fed.  536. 

i3Gormley  v.  Clark,  134  U.  S.  348. 
33  L.   ed.  914,  10  Sup.  Ct.  Rep.  557. 

i^Overman  v.  Parker,  Hemp.  694, 
Fed.  Cas.  No.  10,623;  Morse  v.  South, 
80  Fed.  210. 

isBayerque  v.  Cohen.  McAll.  117, 
Fed.  Cas.  No.  1.134;  Loring  v.  Down- 
er, 1  McAll.  360,  Fed.  Cas.  No.  8,513: 
Prentice  v.  Duluth.  58  Fed.  442,  7  C. 
C.  A.  293 ;  Book  v.  Justice,  etc.  Co.  58 
Fed.  830. 

isLorman  v.  Clarke,  2  McLean,  576, 
Fed.  Cas.  No.  8.516. 

ivGrether  v.  Wright,  75  Fed.  746, 
23  C.  C.  A.  498;  Humes  v.  Little 
Rock.  138  Fed.  929. 

18  Single  V.  Scott,  etc.  Co.  55  Fed. 
556. 

lOSr-ott  V.  Neelov.  140  U.  S.  109, 
114,  35  L.  ed.  360,' 11  Sup.  Ct.  Rep. 
713;   Whitehead  v.  Shattuck,  138  U. 


70 


Procedure]  WHAT  LAW  ADMINISTERED.  §   10  [b] 

maintain  such  a  bill; 20  nor  can  they  maintain  one  unless  both  plaintiff  and 
defendant  are  out  of  possession. 1  The  subject  is  one  presenting  many 
difficulties,  for  though  the  principle  is  clear  that  gives  to  State  and 
Federal  suitors  the  same  substantive  rules  for  adjusting  rights  arising 
out  of  local  law,  the  line  between  substantive  law  and  procedure  is  not 
easy  to  draw.  A  State  law,  for  instance,  which  enables  simple  contract 
creditors  to  reach  and  distribute  assets  of  a  debtor  has  been  deemed  an 
enlargement  of  equity  rights  and  followed  in  some  Federal  cases,2  but  by 
others  has  been  held  inapplicable  in  Federal  courts  of  equity,^  and  clearly 
savors  quite  strongly  of  a  mere  rule  of  procedure. 

[b]     Local  laws  that  constitute  rules  of  property. 

One  of  the  most  important  doctrines  declared  by  the  Federal  courts 
concerning  the  binding  force  of  State  law  and  their  duty  to  administer 
it,  is  that,  where  principles  of  local  law  constitute  rules  of  property,  they 
will  be  accepted  and  applied  by  the  Federal  courts.'?  This  applies  to  a 
series  of  decisions  by  the  highest  State  court  not  founded  upon  statutes 
quite  as  much  as  to  State  statutes  and  the  decisions  construing  them.s 
To  have  one  rule  of  property  in  the  Federal  courts  and  another  in  the 
State  tribunals  would  be  contrary  to  the  uniform  spirit  of  our  jurisprud- 
ence.9  The  term,  rules  of  property,  means  those  rules  governing  the 
descent  transfer  and  sale  thereof,  and  rules  affecting  title  and  pos- 
session.! 0 

S.  152,  34  L.  ed.  875,  11  Sup.  Ct.  Rep.  C.  Co.  150  U.  S.  371,  37  L.  ed.  1113, 

276;    Alderson   v.   Dole,    74   Fed.   30,  14  Sup.  Ct.  Rep.  127;  Jacobs  v.  Mex- 

20  C.  C.  A.  280;  Davidson  v.  Calkins,  ican  S.  Co.  130  Fed.  591;   Davidson, 

92   Fed.    231;    Gombert   v.   Lyon,    80  etc.  Co.  v.  Parlin,  141  Fed.  37. 

Fed.  305;    Buford  v.  Holley,  28  Fed.  ^Thatcher  v.  Powell,  6  Wheat.  127, 

682;   United  States  ex  rel.  v.   Swan,  5  L.  ed.  221;  Henderson  v.  Griffin,  5 

65  Fed.  652,  13  C.  C.  A.  77;  \Yhite-  Pet.  155,  8  L.  ed.  79;  Green  v.  Neal, 

head  v.  Entwhistle,  27  Fed.  780;  San-  G  Pet.  297,  8  L.  ed.  402. 

ders   V.  Devereux,  60  Fed.  315,   8  C.  sYocum  v.  Parker,  134  Fed.  205,  67 

C.  A.  629.  C.  C.  A.  227;   Bucher  v.  Cheshire  R. 

20United  States  v.  Vvilson,  118  U.  R.  125  U.  S.  583,  31  L.  ed.  795,  8  Sup. 

S.  89,  30  L.  ed.  112,  6  Sup.  Ct.  Rep.  Ct.   Rep.   978:    Burgess  v.   Seligman, 

992,   993.  107  U.  S.  20,  33,  27  L.  ed.  365,  2  Sup. 

lUnited   States   Min.   Co.  v.   Law-  Ct.  Rep.   10;   Gormlev  v.   Clark,  134 

son.   134   Fed.  769.  67   C.   C.   A.   587.  U.  S.  348,  3  L.  ed.  913,  10  Sup.  Ct. 

2See  Buford  v.  Holley,  28  Fed.  685;  Rep.  556;  Folsom  v.  Ninety-vSix  Twp. 

Darragh  v.  Wetter  Mfg.  Co.  78  Fed.  159  U.  S.  625,  40  L.  ed.  278,  16  Sup. 

13,  23  C.  C.  A.  609;  Wvman  v.  Mat-  Ct.    Rep.    174;    Andrews    v.    Nat.    F. 

thews,  53  Fed.  680;  Jones  v.  Mut.  F.  Works.  76  Fed.  171,  22  C.  C.  A.  110, 

Co.  123  Fed.  506.  36  L.R.A.   i50;   New  York  Life  Ins. 

sScott  V.  Nealy,  140  U.  S.  106,  35  Co.  v.  Allison,  107  Fed.  179,  40  C.  C. 

L.  ed.  358,    11     Sup.    Ct.    Rep.  712;  A.  229;    Hubbard  v.   Coin,   137    Fed. 

Gates  V.  Allen,  149  U.  S.  456,  3/  L.  822,  70  C.  C.  A.  320. 

ed.  804,   13  Sup.  Ct.  Rep.  883;   Mor-  sStewart  v.  Kahn,  11  Wall.  500.  20 

row  S.  M-  Co.  v.  New  Eng.  S.  Co.  60  L.  ed.  176. 

Fed.  341,  8  C.  C.  A.  652;  24  L.R.A.  lOBucher  v.  Cheshire  R.  R.  Co.  125 

417;   First  Nat.  Bank  v.  Prager.  91  U.  S.  583,  31  L.  ed.  795,  8  Sup.  Ct. 

Fed.  689:   34  C.  C.  A.  51:   Harrison  Rep.  978;   McGon  v.  Scales,  9  Wall. 

<      F.    L.    i<:-    T.    Co.    94    Fed.    728.   30  27,  19  L.  ed.  545. 
C.  'C.  A.   443;    Hollins  v.   Briarfield 

71 


§    10  [b]  FEDERAL  JURISDICTION    IN    GENERAL.  [Code  Fed. 

Decisions  construing  a  local  law  as  to  assignments  for  benefit  of 
creditors,  become  rules  of  propertj^  and  should  be  followed  by  the  Federal 
courts.ii  Of  such  a  nature  also,  are  decisions  on  local  laws  as  to  chattel 
mortgages,  the  matter  being  primarily  one  for  the  States  to  regulate  as 
they  deem  best;  12  and  the  State  decisions  as  to  preferences  by  a  debtor;  is 
and  as  to  a  partner's  right  to  exemptions  out  of  bankrupt  partnership 
assets. 1*  The  decisions  of  the  State  courts  in  applying  the  statute 
of  frauds  have  been  i-ecognized  as  rules  of  property. is  Where  the  local 
decisions  show  it  to  be  the  policy  of  the  State  not  to  allow  a  vendor  of 
personalty  to  remain  in  possession  to  the  prejudice  of  his  creditors  the 
Federal  courts  will  also  follow  such  policy.is  The  State  decisions  con- 
struing the  local  law  as  to  fraudulent  conveyances  are  recognized  as 
binding  rules  of  property. i"  The  local  rules  of  evidence  in  Federal  ac- 
tions for  the  recovery  of  real  property  have  been  held  binding.is  The 
local  law  as  to  mechanics  and  material  men's  and  other  liens,  as  construed 


iiZacher  V.  Fidelity  T.  Co.  106  Fed.  v.  Corner.  76  Fed.  269,  22  C.  C.  A. 
593,  45  C.  C.  A.  4S0;  Brashear  v.  163,  34  L.R.A.  620;  Wilson  v.  Per- 
West,  7  Pet.  615,  8  L.  ed.  802;  Sum-  rin.  62  Fed.  631.  11  C.  C.  A.  66; 
ner  v.  Hicks,  2  Black  534,  17  L.  ed.  Tefft  v.  Stern,  73  Fed.  593,  21  C.  C. 
356;   Allen  v.  Massev,  17  Wall.  351,   A.  67. 

21  L.  ed.  542;  Tallev  v.  Curtain,  54  isBamberger  v.  Schoolfield,  160  U. 
Fed.  48,  4  C.  C.  A.  177;  Lloyd  v.  Ful-  S.  159,  40  L.  ed.  378,  16  Sup.  Ct.  Rep. 
ton,  91  U.  S.  485,  23  L.  ed.  363 :  Hunt-    225. 

ley  V.  Kingman,  152  U.  S.  534,  38  L.  i^In  re  Camp,  91  Fed.  750. 
ed.  543,  14  Sup.  Ct.  Rep.  691 ;  Jaffray  is  Brashear  v.  West,  7  Pet.  615,  8 
V.  McGehee,  107  U.  S.  365,  27  L.  ed.  L.  ed.  801  ;  Allen  v.  Massey,  17  Wall. 
497,  2  Sup.  Ct.  Rep.  367;  Rothschild  351,  21  L.  ed.  542;  Lloyd  v.  Fulton,  91 
v.  Hasbrouck,  72  Fed.  815;  Beall  v.  U.  S.  485,  23  L.  ed.  365;  D'Wolf  v. 
Cowan,  75  Fed.  143,  21  C.  C.  A.  267;  Roband,  1  Pet.  476,  7  L.  ed.  227; 
Heydock  v.  Stanhope,  1  Curt.  478,  Moses  v.  Lawrence  Co.  Bank,  149  U. 
Fed.  Cas.  No.  6.445;  Peters  v.  Bain,  S.  303,  37  L.  ed.  743,  13  Sup.  Ct.  Rep. 
133  U.  S.  686,  33  L.  ed.  702,  10  Sup.    901. 

Ct.  Rep.  354;  South  Branch  L.  Co.  v.  icDooley  v.  Pease,  180  U.  S.  128, 
Ott,  142  U.  S.  620,  35  L.  ed.  1136,  12  45  L.  ed.  459,  21  Sup.  Ct.  Rep.  329. 
Sup.  Ct.  Rep.  318;  Randolph  v.  See  In  re  Sheets,  etc.  Co.  136  Fed, 
Quidnick  Co.  135  U.  S.  457,  34  L.  ed.  989,  following  State  law  as  to  lease 
200,  10  Sup.  Ct.  Rep.  655;  Schoolfield  and  conditional  sale. 
V.  Johnson,  o  McCrarv.  552,  11  Fed.  i^Sumner  v.  Hicks,  2  Black,  534,  17 
298;  Robinson  v.  Belt,  187  U.  S.  41,  L.  ed.  355;  Wallace  v.  Penfield,  106 
47  L.  ed.  65,  23  Sup.  Ce.  Rep.  16,  18,  U.  S.  263,  27  L.  ed.  147,  1  Sup.  Ct. 
But  sve  Stowe  v.  Belfast  Sav.  Bank,  Rep.  216;  Schreyer  v.  Scott,  134  U. 
92  Fed.  99.  S.  409.  33  L.  ed.  955,  10  Sup.  Ct.  Rep. 

i2Etheridge  v.  Sperry,  139  U.  S.  579;  Crawford  v.  Neal,  144  U.  S.  596, 
276,  277,  35  L.  ed.  176,  11  Sup.  Ct.  36  L.  ed.  552,  12  Sup.  Ct.  Rep.  759; 
Rep.  565,  569;  Brown  v.  Grand,  etc.  Bamberger  v.  Schoifield,  160  U.  S. 
Co.  58  Fed.  288,  7  C.  C.  A.  225,  22  159,  40  L.  ed.  378,  16  Sup.  Ct.  Rep. 
L.R.A.  821;  Moore  v.  Young,  4  Biss.  227;  Peters  v.  Bain,  133  U.  S.  686,  33 
135.  Fed.  Cas.  No.  9,782;  Dodge  v.  L.  ed.  696,  10  Sup.  Ct.  Rep.  354;  Moul- 
Norlin,  134  Fed.  363,  66  C.  C.  A.  425;  ton  v.  Chafer,  22  Fed.  28. 
Cutler  V.  Huston,  158  U.  S.  429,  39  isRemington  v.  Linthicum,  14  Pet. 
L.  ed.  1040,  15  Sup.  Ct.  Rep.  868;  91,  10  L.  ed.  364;  Belding  v.  Hebard, 
May  v.  Tenney,  148  U.  S.  64,  37  L.  ed.  103  Fed.  532,  43  C.  C.  A.  296.  See 
370,  13  Sup.  Ct.  Rep.  493;  Ottenburg    also  infra,  note,   [n] 

72 


I 


Procedure] 


WHAT  LAW  ADMINISTERED. 


§   10   [b] 


by  the  State  courts  will  be  followed.is  The  uniform  course  of  local  de- 
cisions as  to  what  constitutes  fixtures  is  controlling. 20  The  State  law  as 
to  adverse  possession  of  lands  is  binding  on  the  Federal  court. 1  The 
rules  established  by  the  State  courts  respecting  grants  of  a  State's  sub- 
merged lands  will  be  recognized  and  applied  by  the  Federal  courts.2  The 
laws  of  the  State  determine  the  extent  of  title  of  riparian  ownersS  and 
where  such  right  is  established  by  repeated  decisions  of  the  State  it  be- 
comes a  rule  of  property  which  Federal  courts  follow. <  The  right  to  sur- 
face waters  is  governed  by  local  law.s  A  local  statute  providing  that  a 
judgment  in  ejectment  shall  bar  any  other  action  between  parties  and 
privies  as  to  the  land  is  a  rule  of  property  to  be  followed  by  the  Federal 
courts. 6  Similarly  if  one  judgment  in  ejectment  is  not  conclusive  in 
State  court  it  is  not  conclusive  in  the  Federal  court.7  A  local  law  as 
to  the  granting  of  new  trial  or  stay  of  execution  in  ejectment  is  also  bind- 
ing upon  this  ground,  s  The  Federal  courts  also  follow  the  local  law  as  to 
allowance  for  improvements  made  in  good  faith.9  Upon  the  question  of 
the  enforcement  of  grantor's  and  vendor's  liens  the  Federal  courts  admin- 
ister the  local  law  since  the  matter  is  one  of  local  property  rights. 10 

The  local  laws  control  and  will  be  followed,  as  to  the  rights  and  dis- 
abilities of  a  married  woman; n   her  power  to  render  her  property  liable 


isPacific.  etc,  Co.  v.  James,  etc.  Co. 
68  Fed.  901).  16  C.  C.  A.  68;  In  re 
Grissler,  l.')6  Fed.  754.  69  C.  C.  A.  406; 
Flash  V.  Wilkerson,  22  Fed.  691; 
Fitch  V.  Creighton,  24  How.  163,  16 
L.  ed.  598;  Oliver  v.  Clark,  106  Fed. 
402,  45  C.  C.  A.  360. 

2  0New  York  l.ife  Ins.  Co.  v.  Alli- 
son, 107  Fed.  179,  46  C.  C.  A.  229. 

iLeffingwell  v.  Warren.  2  Black, 
603,  17  L.  ed.  262;  Scott  v.  Mineral 
Dev.  Co.  130  Fed.  497,  64  C.  C.  A. 
659.     See  also  infra,  note,   [m] 

2Lowndes  v.  Hiuitington,  153  U.  S. 
19,  38  L.  ed.  618,  14  Sup.  Ct.  Rep. 
760. 

sBarnev  v.  Keokuk,  94  U.  S.  324, 
24  L.  ed.  224;  St.  Louis  v.  Mvers,  113 
U.  S.  566,  28  L.  ed.  1131,  5  Sup.  Ct. 
Rep.  640;  Hardin  v.  Jordan.  140  U.  S. 
371,  35  L.  ed.  428,  il  Sup.  Ot.  Rep. 
811;  Rundle  v.  Delaware,  etc.  Co.  14 
How.  94,  14  L.  ed.  335. 
4 Yates  V.  Milwaukee,  10  Wall.  506, 
19  L.  ed.  984;  Kaukauna,  etc.  Co.  v. 
Green,  etc.  Co.  142  U.  S.  272,  35  L. 
ed.  1004,  12  Sup.  Ct.  Rep.  177. 

sWalker  v.  New  Mexico,  etc.  R.  R. 
165  U.  S.  593,  41  L.  ed.  837,  17  Sup. 
Ct.  Rep.  421. 

sMiles  V.  Caldwell,  2  Wall.  44,  17 
L.   ed.   755;    Blanchard  v.   Brown,    3 


Wall.  249.  250,  18  L.  ed.  71,  72;  Brit- 
ton  V.  Thornton,  112  U.  S.  535;  28 
L.  ed.  819,  5  Sup.  Ct.  Rep.  295;  Bryar 
V.  Bryar,  78  Fed.  659 ;  Turner  v.  Ald- 
ridge,  1  McAll.  231,  Fed.  Cas.  No.  14,- 
249. 

TGibson  v.  Lvon,  115  U.  S.  446,  29 
L.  ed.  442,  6  Sup.  Ct.  Rep.  132;  Barber 
V.  Pittsburgh,  etc.  R.  R.  166  U.  S.  99, 
41  L.  ed.  9'33,  17   Sup.  Ct.  Rep.  491. 

sEquator  Co.  v.  Hall,  106  U.  S.  88, 
27  L.  ed.  115,  1  Sup.  Ct.  Rep.  130; 
Small  v.  Mitchell.  143  U.  S.  108,  36 
L.  ed.  93,  12  Sup.  Ct.  Rep.  355;  Gris- 
wold  V.  Bragg,  48  Fed.  520;  Hiller  v. 
Shattuck,  1  Flipp.  275,  Fed.  Cas.  No. 
6.504;  Iron  Silver  Min.  Co.  v.  Camp- 
bell, 61  Fed.  933,  10  C.  C.  A.  172. 

sMcClaskey  v.  Barr.  62  Fed.  211. 

lOFisher  v.  Shropshire,  147  U.  S. 
139,  37  L.  ed.  109,  13  Sup.  Ct.  Rep. 
201;  Slide,  etc.  Mines  v.  Seymour,  153 
U.  S.  516,  38  L.  ed.  802,  14  Sup.  Ct. 
Rep.  842;  Minah  Con.  Co.  v.  Briscoe, 
89  Fed.  895,  32  C.  C.  A.  390;  White- 
ley  v.  Central  T.  Co.  70  Fed.  79.  22 
C.  C.  A.  67,  34  L.R.A.  303. 

iiLippincott  v.  Mitchell,  94  U.  S. 
770,  24  L.  ed.  315;  Bedford  v.  Burton, 
106  U.  S.  341,  27  L.  ed.  112,  1  Sup.  Ct. 
Rep.  98. 


73 


§   10  [c] 


FEDERAL   JURISDICTION    IN    GENERAL. 


[Code  I'fil. 


for  the  husband's  debts;  12  the  effect  of  a  conveyance  to  husband  and  wife 
jointly;  13  and  the  effect  of  a  conveyance  between  husband  and  wife.i^ 

A  divergence  between  Federal  and  State  courts  in  the  construction  of 
local  tax  laws  would  affect  property  rights  and  embarrass  titles  within  a 
State,  and  the  Federal  courts  will  therefore  follow  the  State  tax  laws  and 
the  decisions  construing  the  same  where  no  infringement  of  Federal  limita- 
tions is  involved.! 5 

Tax  proceedings,  assessments,  sales  for  nonpayment,  and  tax  deeds  all 
bear  directly  upon  property  rights  and  require  an  observance  by  Federal 
courts  of  the  rule  that  the  State  laws  and  decisions  are  binding.  1 6 

[c]     Laws  and  decisions  affecting  land  titles  as  rules  of  property. 

State  decisions  construing  State  statutes  which  affect  title  to  local  real 
estate  are  plainly  rules  of  property  and  are  deemed  substantially  con- 
clusive upon  the  Federal  courts, 1  regardless  of  their  opinion  of  the  cor- 
rectness of  the  decisions. 2  Wliatever  is  conclusive  of  title  to  land  in  the 
State  court  is  a  rule  of  property,  and  equally  conclusive  in  Federal 
courts. 3  It  is  the  peculiar  province  of  the  States  to  legislate  as  to  realty 
within  their  borders.*  The  Federal  courts  are  bound  to  decide  questions 
of  title  precisely  as  a  State  court  should. 5  The  duty  of  determining 
unsettled   questions   respecting   the   title   to    real    estate    is    local   and    to 


i2Cross  V.  Allen,  141  U.  S.  538,  35 
L.  ed.  843,  12  Sup.  Ct.  Rep.  67. 

isMyers  v.  Reed.  9  Sawy.  137,  17 
Fed.  404. 

i4Cockrill  V.  Woodson,  70  Fed.  754; 
Partee  v.  Thomas,  11  Fed.  777. 

isProvident  Trust  v.  Massachu- 
setts, 6  Wall.  630,  18  L.  ed.  913; 
Hamilton  Co.  v.  Massachusetts,  6 
Wall.  641,  18  L.  ed.  907;  O'Brien  v. 
Wheelock,  95  Fed.  904,  37  C.  C.  A. 
309;  Jersey,  etc.  Co.  v.  United,  etc. 
Co.  46  Fed.  268. 

i6Gaines  v.  Stiles,  14  Pet.  328-332, 
10  L.  ed.  476;  Raymond  v.  Long- 
worth,  14  How.  78,  14  L.  ed.  333; 
Witherspoon  v.  Duncan,  4  Wall.  217, 
18  L.  ed.  339;  Bailey  v.  Maguire,  22 
Wall.  231,  22  L.  ed.  850;  Mc]\Iillan  v. 
Anderson,  95  U.  S.  41,  24  L.  ed.  335; 
Merchants'  Bank  v.  Pennsylvania,  167 
U.  S.  402,  42  L.  ed.  230,  "17  Sup.  Ct. 
Rep.  829;  Geekie  v.  Kii'by  Carpenter 
Co.  106  U.  S.  385,  27  L.  ed.  157,  1  Sup. 
Ct.  Rep.  315;  Daniels  v.  Case,  45  Fed. 
845;  Powder,  etc.  Co.  v.  Board  of 
Conimrs.  45  Fed.  325;  Hodgdon  v. 
Burleigh.  4  Fed.  Ill;  Lamb  v.  Far- 
rell,  21  Fed.  8. 

iJackson  v.  Chew,  12  Wheat.  162, 
6  L.  ed.  583;  Fisher  v.  Haldeman,  20 


How.  194,  15  L.  ed.  879;  White  v. 
Biirnlev,  120  How.  251,  15  L.  ed. 
886;  Williams  v.  Kirkland,  13  Wall. 
311,  20  L.  ed.  683;  Hanrick  v.  PatricK, 
119  U.  S.  170,  30  L.  ed.  396,  7  Sup. 
Ct.  Rep.  147;  Clark  v.  Smith,  13  Pet. 
204,  10  L.  ed.  123;  Delmas  v.  Insur- 
ance Co.  14  Wall.  668,  20  L.  ed.  757 ; 
Bacon  v.  Insurance  Co.  131  U.  S.  258. 
33  L.  ed.  128,  9  Sup.  Ct.  Rep.  787; 
Clement  v.  Packer,  125  U.  S.  322,  31 
L.  ed.  721,  8  Sup.  Ct.  Rep.  907;  Rid- 
ings V.  Johnson,  128  U.  S.  212,  32  L. 
ed.  401,  9  Sup.  Ct.  Rep.  72;  Halstead 
V.  Buster,  140  U.  S.  277,  35  L.  ed.  485, 
11  Sup.  Ct.  Rep.  783;  League  v. 
Egery,  24  How.  266,  267,  16  L.  ed. 
655:  Morgan  v.  Curtenuss,  20  How. 
3,  15  L.  ed.  823;  Derby  v.  Jacques, 
1  Cliff.  438,  Fed.  Cas.  No.  3,817; 
Southern  P.  Co.  v.  Western  Pac.  R. 
R.  144  Fed.  160. 

2 Christ V  V.  Pridgeon,  4  Wall.  203, 
18  L.  ed.'322;  Nessmith  v.  Sheldon, 
4  McLean,  376,  Fed.  Cas.  No.  10,125. 

3Blanchard  v.  Brown,  3  Wall.  249, 
IS  L.  ed.  69. 

4Arndt  v.  Griggs,  134  U.  S.  321, 
33  L.  ed.  918,  10  Sup.  Ct.  Rep.  557. 

5 Wilkinson  v.  Leland,  2  Pet.  656, 
7  L.  ed.  542. 


74 


Procedure]  WHAT  LAW  ADMINISTERED.  §   10   [c] 

be  discharged  by  the  State. 6  Settled  State  rules  of  construction  of 
deeds  or  wills  affecting  real  estate  are  binding  on  Federal  courts. ^  Where 
certain  language  in  a  deed  will  or  other  muniment  of  title  is  held 
to  create  a  certain  estate  by  a  series  of  State  decisions,  this  construction 
binds  the  Federal  courts. «  But  a  single  State  decision  construing  a  will 
deed  or  a  contract  though  entitled  to  respect,  is  not  conclusive  as  a  rule  of 
decision  for  the  Federal  courts  unless,  of  course,  as  res  adjudicata  be- 
tween the  parties  or  their  privies.9  State  decisions  construing  the  local 
statutes  of  distribution  and  succession  are  binding  on  the  Federal 
courts.  10  The  State  law  as  to  the  effect  of  a  subsequent  decision  upon  a 
deed  directly  to  a  wife  is  a  local  rule  of  property;  n  so  a  decision  as  to  the 
effect  of  words  in  a  deed  creating  a  covenant  of  seisin;  12  and  the  effect 
of  the  word  "issue"  in  a  will  affecting  realty. 1 3  The  local  law  as  to 
devolution  of  the  title  to  partnership  realty  on  the  death  of  a  partner 
is  a  rule  of  property  within  this  principle; i4  so  also  the  local  rule  that 
a  deed  reserving  a  vendor's  lien  passes  no  title.is  As  already  shown,  in 
Federal  foreclosure  proceedings,  the  State  law  has  been  accepted  as  the 
measure  of  the  substantive  rights  imder  a  mortgage.!  6  And  in  other 
than  foreclosure  cases  the  State  laws  and  decisions  respecting  mortgages, 
foreclosure  and  sale,  are  equally  binding  as  the  rule  by  which  rights 
must  be  measured  and  adjudged  where  questions  affecting  them  arise  in 
the  Federal  courts.  1 7  Since  the  State  has  full  power  to  control  the  en- 
cumbrance or  disposition  of  mining  ground  within  the  State  even  though 

6Lynch  v.  Murphv,  IGl   U.  S.  252,  170,  30  L.   ed.  404.   7   Sup.   Ct.  Rep. 

40  L.  ed.  688,  16  Sup.  Ct.  Rep.  523.  154;  Bvers  v.  McAiiley,  149  U.  S.  621. 

TJacKson  V.  Caew,  12  Wheat.  167,  37  L.  ed.  867,  13  Sup.  Ct.  Rep.  906; 

6  L.  ed.  588;   Henderson  v.  Griffin.  5  IVIiddleton  v.  McGrew,  23  How.  47,  16 

Pet.  151,  8  L.  ed.  79;  Suydam  v.  Wil-  L.   ed.    403;    Shields    v.   McAuley,   37 

liamson,  24  How.  427,  16  L.  ed.  742;  Fed.  304;   Billings  v.  Aspen,  etc.  Co. 

Rinehart  v.    Harrison,    1    Bald.    187,  51  Fed.  344,  2  C.  C.  A.  252. 

Fed.  Cas.  No.  11,840;  Barber  v.  Pitts-  iiCockrill  v.  Woodson,  70  Fed.  753. 

burgh,  etc.  Ry.  166  U.  S.  100,  41   L.  i2Schnelle,   etc.   Co.  v.   Barlow,   34 

ed.  933,  17  Sup.  Ct.  Rep.  491;  Yocum  Fed.  853. 

v.    Parker,    134    Fed.    205,    67    C.    C.  isFlora  v.  Anderson,  67  Fed.  187. 

A.  227;   Roberts  v.  Lewis,  153  U.  S.  i4Perin   v.   Megibben,   53   Fed.    92, 

367,  38  L.  ed.  747,  14  Sup.  Ct.  Rep.  3  C.  C.  A.  443. 

945.     But  see  Mathews  v.  Springer,  isQliver   v.   Clarke,    106   Fed.    402, 

2   Abb.    (U.    S.)    300,   Fed.   Cas.   No.  45  C.  C.  A.  360. 

9,277.  leSee  supra,  note,  [a] 

sBuford  V.  Kerr,  90  Fed.  513.  33  C.  i7-\^Tieeler  v.  Sexton,  34  Fed.  154; 

C.  A.  166;  Meade  V.  Beale,  Taney,  360,  Hearfield   v.  Bridges,  75  Fed.  51,  21 

Fed.  Cas.   No.  9,371;    Schlev  v.  Pull-  C.  C.  A.  212;  Russell  v.  Elv,  2  Black 

man  C.  C.   120  U.   S.   580,  "30  L.   ed.  578,  17  L.  ed.  258;  Townsend  v.  Tcdd. 

791,  7   Sup.   Ct.   Rep.   732;    Schnelle,  91  U.  S.  453,  23  L.  ed.  413;  Bondurant 

etc.  Co.  V.  Barlow,  34  Fed.  S57.  v.  Watson,  103  U.  S.  289,  26  L.  ed. 

9Lane  V.  Vick,  3  How.  4(Jt.  11  L.  ed.  447;    Smith,    etc.    Co.    v.    McGoartv, 

681;  Bancroft  v.  Hamblv.  94  Fed.  979,  136  U.  S.  241,  34  L.  ed.  346,  10  Sup. 

36  C.  C.  A.  595;  Russell  v.  Southard,  Ct.    Rep.    1017;    Burley    v.    Flint,    9 

12  How.  148,  13  L.  ed.  931;  Gibson  v.  Biss.  215,  Fed.  Cas.  No.  2.168;   Staf- 

Lyon,  115  U.  S.  439,  446,  29  L.  ed.  440,  ford  Nat.  Bank  v.   Sprague,   17  Fed. 

6  Sup.  Ct.  Rep.  129;  Foxcroft  v.  Mai-  788,  21   Blatchf.  473;   Howe   v.   San- 

lett,  4  How.  379,  11  L.  ed.  1008.  ford,  etc.  Tool  Co.  44  Fed.  233. 

lOHanrick    v.    Patrick,    119    U.   S. 

75 


§   10   [d] 


FEDERAL  JURISDICTION   IN   GENERAL. 


[Code   Fed. 


owned  by  a  foreign  corporation,  the  local  statute  as  to  sale  of  mining 
ground,  and  a  decision  construing  and  applying  it,  bind  the  Federal 
courts.18  The  State  court's  construction  of  the  local  statute  as  to  re- 
cording of  deeds  is  binding; is  also  of  a  statute  permitting  a  deed  by  an  ad- 
ministrator; 20  and  of  a  statute  as  to  segregation  surveys  by  a  Stat* 
officer.i  State  decisions  settling  the  title  to  and  boundaries  of  particular 
tracts  or  parcels  of  land  and  the  effect  of  particular  grants  should  be 
respected  by  the  Federal  courts  as  res  adjudicata.2 

[dj  Laws  and  decisions  respecting  powers  of  State's  political  and  munici- 
pal organizations,  etc. 
Questions  of  the  internal  constitution  of  the  body  politic  of  each  State 
are  peculiarly  local.  Hence  local  decisions  as  to  the  powers  of  a  munici- 
pality,5  its  territorial  extent, 6  its  liabilities,'?  are  authoritative  where  no 
Federal  right  or  limitation  is  involved.  The  State  courts  construction  of 
law  as  to  issue  of  municipal  bonds  is  ordinarily  binding. 8  State  laws  and 
their  construction  are  controlling  as  to  the  powers  of  quasi  public  irriga- 
tion or  other  companies,9  and  their  proper  organization;  10  and  as  to  the 
powers  and  proceedings  of  a  reclamation  district. n  The  power  of  county 
supervisors  to  levy  a  special  tax  is  determined  by  the  local  law;  12  so 
also  the  nature  of  the  relation  between  a  municipality  and  its  fire  depart- 


I 


isWilliams  v.  Gaylord,  186  U.  S. 
157,  46  L.  ed.  1102,  22  Sup.  Ct.  Rep. 
798. 

19R0SS  V.  McLuncT,  6  Pet.  286,  8  L. 
ed.  400;  Pickett  v.^Foster,  149  U.  S. 
530,  37  L.  ed.  829,  13  Sup.  Ct.  Rep. 
998. 

2  0Maxwell  v.  Moore,  22  How.  191, 
16  L.  ed.  251. 

1  Heath  v.  Wallace,  138  U.  S.  587, 
34  L.  ed.  1063,  11  Sup.  Ct.  Rep.  380. 

2United  States  v.  Roselius,  15  How. 
35,  14  L.  ed.  587;  Williamson  v.  Suy- 
dam,  6  Wall.  736,  738,  18  L.  ed.  967; 
Richardson  v.  Louisville,  etc.  R.  R. 
169  U.  S.  132.  42  L.  ed.  687,  18  Sup. 
Ct.  Rep.  268;  Parrish  v.  Ferris,  2 
Black,  608.  609,  17  L.  ed.  317. 

sBlaylock  v.  Muskogee,  117  Fed. 
125,  54  C.  C.  A.  639:  Evansville  v. 
Woodbury,  60  Fed.  720,  9  C.  C.  A. 
244;  Illinois,  etc.  Bank  v.  Arkansas 
City,  76  Fed.  279,  22  C.  C.  A.  171,  34 
L.R.A.  518;  Dupont  v.  Pittsburg,  69 
Fed.  14;  First  Nat.  Bank  v.  Arling- 
ton, 16  Blatchf.  58,  Fed  Cas.  No. 
4,806;  Claiborne  Co.  v.  Brooks,  111 
U.  S.  400.  28  L.  ed.  470,  4  Sup.  Ct. 
Rep.  489. 

ePorsvthe  v.  Hammond,  166  U.  S. 
519,  41  L.  ed.  1100,  17  Sup.  Ct.  Rep. 
670. 

76 


'Detroit  v.  Osborne,  135  U.  S.  492, 
34  L.  ed.  260,  10  Sup.  Ct.  Rep.  1012; 
Richmond  v.  Smith,  15  Wall.  438,  21 
L.  ed.  202;  Merrill  v.  Portland,  4 
Cliff.  140,  Fed.  Cas.  No.  9,470:  Bow- 
ditch  V.  Boston,  4  Cliff.  341,  Fed.  Cas. 
No.  1,719;  Louisville  Trust  Co.  v. 
Cincinnati,  73  Fed.  730.  But  see 
Greenwood  v.  Westport,  60  Fed.  576; 
Boston  V.   Crowley,  38   Fed.   204. 

sRich  V.  Town  of  Mentz,  134  U. 
S.  644,  33  L.  ed.  1080,  10  Sup.  Ct. 
Rep.  614;  Folsom  v.  Township,  59 
Fed.  68;  Zane  v.  Hamilton  Co.  104 
Fed.  63,  43  C.  C.  A.  412;  German  Ins. 
Co.  v.  Manning.  78  Fed.  909;  German 
Bank  v.  Franklin  Co.  128  U.  S.  538, 
539,  32  L.  ed.  519,  9  Sup.  Ct.  Rep. 
159;  Wilkes  Co.  v.  Coler,  180  U.  S. 
533,  45  L.  ed.  6.55.  21  Sup.  Ct.  Rep. 
458.     But   see   post,   §   12.    [b] 

9  San  Diego  Flume  Co.  v.  Souther, 
90  Fed.  168,  32  C.  C.  A.  548. 

lOMiller  v.  Perris,  etc.  Dist.  85 
Fed.  701  ;  Tregea  v.  Modesto  Irrig.  Co. 
Dist.  164  U.  S.  188,  41  L.  ed.  395, 
17  Sup.  Ct.  Rep.  52. 

iiReclamation  Dist.  v.  Hagar.  4 
Fed.  366,  6  Sawy.  567. 

i2Supervisors  v.  United  States,  18 
Wall.  82,  21  L.  ed.  775. 


Procedure]  WHAT  LAW  ADMINISTERED.  §   10   [e] 

ments;i3  the  liability  of  a  county  for  streets  etc.;!*  the  power  of  county 
commissioners ;  1 5  the  right  of  a  county  to  incur  indebtedness;! 6  the  con- 
struction of  a  statute  authorizing  bonds;  the  necessity  for  notice  of  an 
election.  17 

State  decisions  respecting  the  existence  of  subordinate  State  tribunals 
and  the  eligibility,  election,  or  appointment  of  State  officers,  are  con- 
sidered conclusive  where  no  question  under  the  Federal  Constitution  or 
laws  is  involved.  As,  for  instance,  cases  respecting  the  composition,  stat- 
us, and  organization  of  State  courts;i8  the  constitutional  existence  of  a 
board  of  county  commissioners ;i9  and  the  powers  of  State  courts  to  set 
aside  their  judgments  for  mistake,  etc; 20  or  of  a  probate  court  to  make 
an  order  of  sale.i 

[e]  Local  laws  and  decisions  respecting  domestic  corporations,  common 
carriers  and  franchises. 
States  legislate  in  a  plenary  way  respecting  the  creation,  powers,  rights 
and  liabilities  of  domestic  corporations  and  domestic  franchises  generally, 
and  the  Federal  courts  must  obviously  respect  and  administer  the  State 
law  where  questions  respecting  these  matters  are  in  dispute  before  them 
and  no  Federal  right  or  law  is  involved.  A  State  law  declaring  corporate 
stock  personal  property  is  binding  on  the  circuit  court  sitting  therein.* 
The  State  court's  construction  of  a  law  declaring  stockholder's  liability  in 
a  domestic  corporation  is  binding  on  the  Federal  court  even  though  the 
case  arises  in  another  State. 5  A  question  of  corporate  powers,  or  ultra 
vires,6  or  the  forfeiture  of  a  corpoi'ate  charter-   is  ordinarily  a  matter  of 

isWorkman  v.  Mavor,  etc.  63  Fed,  S.  97,  32  L.  ed.  630,  9  Sup.  Ct.  Rep. 

300.  237. 

i4Madden  v.  Lancaster  Co.  65  Fed.        ^Jellenik  v.  Huron,  Cop.  Min.  Co. 

192,  12  C.  C.  A.  560.  177  U.  S.  13,  44  L.  ed.  651,  20  Sup.  Ct. 

i5Pauly,  etc.  Co.  v.  Board  of  Comrs.  Rep.  563. 
68  Fed.  172,  15  C.  C.  A.  351.  SFlash  v.  Conn,  109  U.  S.  379.  27 

leOlfice.  etc.  Co.  v.  Elbert,  73  Fed.  L.    ed.    966.    3    Sup.    Ct.    Rep.    263; 

326;    Brauu   v.  Board   of   Comrs.   66  Park  Bank  v.  Runsen,  158  U.  S.  342, 

Fed.  479.  39  L.  ed.  1008,  15  Sup.  Ct.  Rep.  891 ; 

iTPost   v.   County   of   Pulaski,   47  ^l^en    v.    Fairbanks,    45    Fed.    447; 

Yei    085  Rhodes   v.    Nat.    Bank,   66   Fed.   518, 

/.i^     '      4.  ^xT  >.       n  T?  .  13  C,  C.  A.  012,  34  L.R.A.  742;  Field 

mo  n'^Tni   !?r  ?S  ^91   sf^Trt'  ^-  Haines,  28  Fed.  920;   National  P. 

i      ^o<f\T    •        l^         '  Ar  1  ,  P;  Bank  v.  Peavey,  64  Fed.  923;   Whit- 

?'P".^U  tT'^q'^'S-''  If^r       T  c'i  man  v.  Nat.  Bank,  83  Fed.  291,  28  C. 

Court,  120  U.   S._3d/     30  L    ed.  6.^.3,  ^    ^  ^^      ^.^^  ^o.  v.  Libbey,  85  Fed. 

I   Sup.  Ct.  Rep.  o63 ;  In  re  Planning,  „.-,.,  •' 

139  a  8^504    507,  35  L    ed    265    11  ^%^^,,^  ,,  Kernochen.  7  How.  219, 

Sup.  Ct   Rep   62.3-  IseAv  \ork  v.Bar-  ^j^^^^   ^.^^^  j^    j^    ^ 

ker,  1/9  U.  S.  286,  4o  L.  ed.  194,  21  ^^^^^^  ^,^   ^,  ^'^^   ^,^^  27  C.  C.  A.  73; 

bup.  Ct.  Kep.  121.  Hazard    v.    Vermont,    etc.    R.    R.    17 

isNorton  v.  Shelby  Co.   118  U.  S.  ped.  755;   Southern  Rv.  v.  North  C. 

440,   441,   30   L.    ed.    178,   6    Sup.   Ct.  ^    r_  gi   ped.  602;   Hawes  v.  Contra 

Rep.   1121;   Willis  v.  Board  of  Com-  Costa  Water  Co.   5   Sawv.   289.   Fed. 

missioners,  80  Fed.  874,  30  C.  C.  A.  Cas.  No.  6.235;   Laredo  trust  Co.  v. 

445.  Stevenson,  66  Fed.  636,   13  C.  C.  A. 

2  0Garrison  v.  New  York,  21  Wall.  661. 

203,  22  L.  ed.  612.  ^Nonconnah   Turnpike    v.    Tennes- 

i.T.rrowsmitii    v.    Gleason,    129    U.  see,  131  V.  S.  clviii.  24  L.  ed.  368. 

77 


§  10  [e] 


FEDERAL  JURISDICTION   IN   GENERAL. 


[Code  Fed. 


State  law  on  which  the  State  decision  is  final.  State  decisions  upholding  an 
exclusive  ferry  franchise  have  been  held  a  binding  rule  of  property. ^  A 
State  decision  that  the  law  under  which  a  corporation  organized  is  a  gener- 
al law,  binds  the  Federal  court; 9  so  also  a  decision  declaring  a  railroad  duly 
incorporated  and  existing.io  A  state  decision  construing  a  charter  granted 
by  the  crown  prior  to  the  Revolution  is  very  persuasive  and  will  be 
deemed  conclusive  where  extensive  improvements  have  been  made  under 
it.ii  A  State  decision  construing  the  law  reserving  the  right  to  alter  or 
repeal  a  charter  will  be  followed.12  A  State  decision  as  to  what  con- 
stitutes a  doing  of  business  by  a  corporation  is  conclusive. 1 3  When  State 
decisions  sustain  an  unrecorded  pledge  of  corporate  stock  the  Federal 
court  will  do  likewise.i'*  While  ordinarily  the  relation  of  a  corporation 
and  its  stockholders  is  controlled  by  principles  of  general  law  in  the 
absence  of  a  statute,  the  relations  of  a  stockholder  to  a  building  and  loan 
company  are  governed  by  local  law  and  decisions.!  5  The  question  whether 
corporate  stock  is  to  be  deemed  fully  paid  has  been  held  to  be  one  of 
general  commercial  law.16  But  the  local  decisions  as  to  the  nature  and 
powers  of  domestic  corporations  are  not  controlling  as  to  the  powers  of  a 
corporation  created  by  Congress  and  for  national  purposes.i''  The  duties 
and  liabilities  of  common  carriers  may  usually  be  prescribed  by  the  State 
in  which  they  operate  and  when  so  prescribed  control  the  decisions  of  the 
Federal  courts.  Thus  the  Federal  courts  have  recognized  and  enforced  the 
local  laAV  of  Massachusetts  denying  liability  of  a  carrier  for  injury  to  one 
wrongfully  traveling  on  Sunday; is  a  local  law  as  to  flagmen  at  crossings 
or  contributory  negligence ;  1 9  a  State  statute  permitting  carriers  by  con- 
tract to  exempt  themselves  from  liability. 20  The  State  law  as  to  the 
right  of  a  railroad  to  lay  tracks  in  city  streets  is  bindingi  and  State  de- 
cisions thereon  will  be  followed. 2  But  the  law  of  liability  to  servants 
for  injuries  and  liability  on  contracts  of  carriage  has  been  declared  to  be 
a  matter  of  general  jurisprudence  where  there  are  merely  local  decisions 


sConway  v.  Taylor,  1  Black,  629, 
17  L.  ed. '191. 

9Hammond  v.  Hastings,  134  U.  S. 
404,  33  L.  ed.  960.  10  Sup.  Ct.  Rep.  727. 

lOSecombe  v.  Railroad  Co.  23  Wall. 
117,  23  L.  ed.  67. 

iiMartin  v.  Waddell,  16  Pet.  417, 
418,  10  L.  ed.  997. 

i2New  York  v.  Cook,  148  U.  S.  411, 
37  L.  ed.  503,  13  Sup.  Ct.  Rep.  649. 

isErie  R.  R.  v.  Pennsylvania,  21 
Wall.  497,  22  L.  ed.  598. 

i4Masury  v.  Arkansas  Bank,  87 
Fed.  382. 

isColtrane  v.  Blake,  113  Fed.  785, 
51   C.  C.  A.  457. 

leClark  v.  Bever,  139  U.  S.  117,  35 
L.  ed.  97,  11  Sup.  Ct.  Rep.  475. 

iTRoberts  v.  Northern  Pac.  R.  R. 
158  U.  S.  24,  39  L.  ed.  873,  15  Sup.  Ct. 
Rep.  756. 


isButcher  v.  Cheshire  R.  R.  125  U. 
S.  584,  31  L.  ed.  795,  8  Sup.  Ct.  Rep. 
974. 

isGrand  Trunk  Ry.  v.  Ives,  144  U. 
S.  408,  36  L.  ed.  485,  12  Sup.  Ct.  Rep. 
685.  See  Rogers  v.  Cin.  etc.  R.  R.  136 
Fed.  574,  69"  C.  C.  A.  321,  following 
law  permitting  recovery  notwith- 
standing contributory  negligence. 

2  0Chicago,  etc.  Ry.  v.  Solan,  169 
U.  S.  136,  42  L.  ed.  688,  18  Sup.  Ct. 
Rep.  298;  Central  Georgia  Ry.  v. 
Kavanaugh,  92  Fed.  58,  34  C.  C.  A. 
203;  Northern  Pac.  R.  R.  v.  Hogan, 
63  Fed.  105,  11  C.  C.  A.  51;  Northern 
Pac.  R.  R.  v.  Mase,  63  Fed.  115.  11 
C.  C.  A.  63. 

1  Barney  v.  Keokuk,  4  Dill.  598, 
Fed.  Cas.  No.  1,032. 

2Van  Bokelen  v.  Brooklyn  R.  R. 
5  Blatchf.  379,  Fed.  Cas.  No.  16,830. 


78 


Procedure]  WHAT  LAW  ADMINISTERED.  §   10   [ee] 

and  no   local   statute. s     The   question   of   a   lessor   railroad's   liability    for 
lessee's  negligence  has  also  been  held  one  of  general  law.* 

[ee]     State  laws  creating  or  abolishing  rights  and  liabilities. 

There  can  be  no  doubt  but  that  wliere  a  State  acting  as  to  matters  with- 
in its  law  making  powers,  creates  new  rights  or  liabilities  or  alters  or  en- 
larges existing  ones,  the  Federal  courts  are  bound  to  respect  and  ad- 
minister them  whether  in  equity  admiralty  or  at  law."  As  is  elsewhere 
stated,  the  States  may  create  new  rights  which,  if  of  an  essentially 
equitable  nature,  will  be  enf oread  by  the  Federal  courts  in  equity  even 
though  the  modes  of  procedure  in  Federal  equity  cases  are  distinct  from 
the  State  practice  and  not  subject  to  State  regulation  or  control. s  The 
same  is  true  in  admiralty. »  Obviously  it  is  equally  true  in  common 
law  cases  that  new  or  changed  rights  or  liabilities  within  the  State's  law 
making  power,  must  be  administered  by  the  Federal  courts;  and  as  to 
such  cases  the  principle  is  further  supported  by  the  legislation  of  Con- 
gress making  State  laws  the  rules  of  decision.  The  cases  coming  within 
the  principle  here  under  discussion  are  those  involving  matters  of  sub- 
stantive right  rather  than  modes  of  procedure  or  relief.  Of  such  a  na- 
ture for  instance  are  the  authorities  in  which  State  laws  creating  a  stock- 
holder's liability  and  other  forms  of  individual  liability  for  corporate 
debts  have  been  administered  by  the  Federal  courts  and  the  construc- 
tion put  upon  them  by  the  State  eoui'ts  followed.io  And  where  the  State 
law  requires  certain  prerequisites  to  suit,  such  steps  must  also  be  taken 
where  suit  is  in  the  Federal  court. n  A  State  law  as  construed  by  a  State 
court,  penalizing  the  refusal  of  insurance  companies  to  pay  losses  under 
certain  circumstances,  will  be  enforced  by  the  Federal  court.12  The 
Federal  court  sitting  in  another  State  will  enforce  a  State  law  creating 
a  liability  of  directors  for  false  reports,  if  such  law  is  not  penal  within 

3See  infra,  note.m  loMills  v.  Scott,  99  U.  S.  29,  25  L. 

4Yeates  v.  Illinois,  etc.  Ry.  137  Fed.  ed.  294;  Flash  v.  Conn.  109  U.  S.  378, 

943.  27  L.  ed.   966.  3  Sup.  Ct.  Rep.  263; 

TReynolds  v.  Crawfordsville  Bank,  Chase  v.  Curtis,  113  U.  S.  458,  28  L. 

112  U.  S.  410,  28  L.  ed.  733,  5  Sup.  ed.  1040,  5  Sup.  Ct.  Rep.  556;  National 

Ct.   Rep.   213;    Ex   parte   McNeil,    13  Bank  v.  Francklyn,  120  U.  S.  756,  30 

Wall.  243,  20  L.  ed.  624;  Railway  Co.  L.  ed.  829,  7  Sup.  Ct.  Rep.  762;  Na- 

V.  Whitton,   13  Wall.   286,   20  L.   ed.  tional  Bank  v.  Peavej%  64  Fed.  923; 

571;   Pritchard  v.   Norton,   106  U.  S.  Rice  v.  Libbev,  85  Fed.   823;   Hotch- 

129,  27  L.  ed.  104,  1  Sup.  Ct.  Rep.  102;  kiss,  etc.  Co.  v.  Union  Nat.  Bank,  08 

Jeter  v.  Ilcnvard,  22  How.  3()4,  16  L.  Fed.  79,  15  C.  C.  A.  264;  Whitman  v. 

ed.  345;  Cowley  v.  Northern  Pac.  159  National  Bank,  83  Fed.  201,  28  C.  C. 

U.  S.  583,  40  L.  ed.  263.  16  Sup.  Ct.  A.  404;  State  Nat.  Bank  v.  Savward, 

Rep,  127;  Chicot  Co.  v.  Sherwood,  148  91  Fed.  448,  33  C.  C.  A.  504:  Andrews 

U.  S.  529,  37  L.  ed.  547,  13  Sup.  Ct.  v.  National,  etc.  Works.  76  Fed.  171, 

Rep.    695;    Indianapolis,    etc.    Co.    v.  22  C.  C.  A.  110,  36  L.R.A.  139. 

Amer.  etc.  Co.  53  Fed.  970;  Farmers'  nEvans  v.  Nellis,  187  U.  S.  271,  47 

L.  &  T.  Co.  V.  Toledo,  etc.  Co.  67  Fed.  L.  ed.  173,  23  Sup.  Ct.  Rep.  74. 

73;  Harrison  v.  Remington  P.  Co.  140  i^Iowa,   etc.   Co.  v.  Lewis,   187   U. 

Fed.  385.  S.    335,   47   L.    ed.    204,   23   Sup.   Ct. 

8 See  supra,  note.lb]  Rep.  126. 

9  See  §  4,  note. 

79 


§   10   [ee]  FEDERAL  JURISDICTION  IN  GENERAL.  [Code  Fed. 

the  principle  of  international  law  under  which  courts  elsewhere  refuse  to 
execute  a  local  penal  statute.is  Liens  created  by  State  law  will  be 
recognized  and  are  enforceable  in  the  Federal  courts,!  4  which  will  pro- 
ceed in  equity  in  cases  where  the  remedy  is  there  more  complete.is 
Where  State  judgments  are  made  liens  on  real  estate,  Federal  judgments 
in  the  State  will  be  given  the  same  effect  ;16  and  the  State  court's  con- 
struction of  the  statute  so  providing  binds  the  Federal  courts. i"  Where 
a  statutory  suit  to  set  aside  a  judgment  is  removed  to  the  Federal  court, 
the  latter  follows  the  State  law  regulating  such  proceedings.!  s  The 
Federal  court  may  enforce  a  summary  remedy  given  to  creditors  of  a 
levee  district  ;19  nor  does  the  fact  that  a  proceeding  authorized  by  a  State 
is  special  or  summary,  prevent  its  removal  to  the  Federal  court. 20  A 
statutory  action  against  heirs  for  a  decedent's  debts  may  be  maintained 
in  the  Federal  courts.!  So  where  a  State  law  confers  a  right  to  sue  the 
State  the  decision  of  the  State  court  upholding  that  right  will  be  followed 
by  the  Federal  courts. 2  When  the  State  law  substitutes  the  action  of 
trespass  for  common  law  ejectment  or  abolishes  the  old  fiction  in  eject- 
ment, the  Federal  courts  should  follow  this  practice  when  the  process  act 
so  provides. 3  The  fact  that  the  Federal  court  cannot  proceed  in  the 
statutory  mode  is  immaterial  and  should  not  deprive  a  suitor  of  a  right 
which  the  State  law  creates. ■*  Where  State  law  prescribes  the  procedure 
for  determining  adverse  claims  to  a  railroad  right  of  way,  the  Federal 
court  will  follow  that  procedure. 5  A  State  law  as  to  nature  of  qui  tarn 
actions  controls  the  local  Federal  court. ^  In  numerous  cases  the  Federal 
courts  have  enforced  State  laws  giving  a  right  of  action  for  death  ;V 
and  have  entertained  suit  on  liabilities  thus  created,  when  sitting  in 
another   State. «      They   have   also   recognized   State   decisions  based   upon 


!3ITuntington  v.  Attrill,  146  U.  S.  sSears  v.  Eastburn,   10  How.   189, 

657,  36  L.  ed.  1129,  13  Sup.  Ct.  Rep.  13  L.  ed.  381. 

224.  4Bank   of   Hamilton   v.   Dudlev,   2 

!4Fitch  V.  Creighton,  24  How.  163,  Pet.  526,  7  L.  ed.  496. 

16  L.  ed.  598;  Flash  v.  Wilkerson,  22  sCentral  P.  R.  R.  v.  Dyer,  1  Sawv. 

Fed.  691;   Pacific,  etc.  Co.  v.  James,  649,   Fed.   Cas.   No.   2.552. 

etc.  Co.  68  Fed.  969,  16  C.  C.  A.  68.  estate  v.  Grand  Trunk  Ry.  3  Fed. 

i5De  La  Vergne.  etc.  Co.  v.  Mont-  889. 

gomery  Co.  46   Fed.    830.  ^Railway  Co.  v.  ^^Hiitton,  13  Wall. 

isWard   v.    ^-lamberlain,  2   Black,  286,  20  L.  ed.  571:  Holmes  v.  Oreqon. 

445,  17  L.  ed.  326;   Dartmouth  Sav.  etc.  Ry.  5  Fed.  84,  6  Sawy.  262;  Rris- 

Bank  v.  Bates,  44  Fed.  547.  enden   v.   Chamberlain,  53   Fed.   .SOf); 

I'iSavings,  etc.  Co.  v.  Bear  V.  L  Co.  Van  Doren  v.  Pennsvlvania  R.  R.  93 

89  Fed.  38.  Fed.  264,  35  C.  C.  A. '282;  Texas  &  P. 

!SCowlev  V.  Northern  P.  R.  R.  159  Ry.  v.  Humble,  181  U.  S.  57,  45  L.  ed. 

U.  S.  583,' 40  L.  ed.  2G7.  16  Sup.  Ct.  747,     21     Sup.     Ct.     Rep.     526.     See 

Rep.   131.  Quinette  v.   Bisso,   136   Fed.   825,   69 

isStansell  V.  Levee  Bd.  13  Fed.  851.  C.   C.    A.   503,   following   State   deri- 

20Parker  v.  Overman,  18  How.  140,  sions  as  to  measure  of  damages. 

15  L.  ed.  319.  sDimmiok  v.  Railroad,  103 "U.  S.  11. 

iGoshorn  v.  Alexander,  2  Bond,  162,  26  L.  ed.  439;  Texas  etc.  Rv.  v.  Cox. 

Fed.  Cas.  No.  5.630.  145  U.  S.  604.  36  L.  ed.  833.  12  Sup. 

2Curran  v.  Arkansas,  15  How.  309,  Ct.  Ren.  908;  Railway  Co.  v.  Babcofk. 

14  L.  ed.  705.  154  U.  S.  198,  30  L.  ed.  901,  14  Sup. 

80 


i'rocedure]  WHAT  LAW  ADMINISTERED.  S   10   [f] 

such  statutes,  giving  a  right  to  exemplary  damages;  9  or  a  right  of  re- 
covery notwithstanding  contributory  negligence. i  o  A  State  law  giving 
an  illegitimate  child  a  remedy  on  failure  of  parent  to  provide,  will  be 
enforced  by  the  Federal  eourt.n  A  State  law  requiring  plaintiff  in  per- 
sonal injury  suits  to  submit  to  a  surgical  examination  will  be  enforced 
in  the  Federal  courts.12  Under  the  old  process  act  the  abolition  of  the 
writ  of  right  in  Massachusetts  did  not  abolish  the  writ  as  a  form  of 
process  in  the  Federal  courts; is  but  the  old  common  law  rule  that  judg- 
ment on  writ  of  entry  is  not  a  bar  to  such  a  suit  was  necessarily 
abolished  since  that  involved  a  substantive  rule  of  property  and  not  mere- 
ly a  mode  of  procedure. i*  Attachment  is  a  statutory  remedy  and  local 
decisions  construing  the  attachment  laws  are  binding.! 5  Where  the  State 
law  permits  an  attorney  fee  to  be  recovered  as  damages  in  suit  on  an 
attachment  bond,  it  must  be  allowed  as  damages  by  the  Federal  court 
where  a  suit  on  a  State  court  attachment  bond  is  removed  to  the  Federal 
court.  16 

tf]     Other  matters  of  a  local  nature. 

There  are  also  other  laws  of  a  local  nature,  and  other  matters  strictly 
intraterritorial,  as  to  which  the  State's  power  of  legislation  is  plenary, 
in  respect  to  which  the  Federal  courts  should  recognize  and  administer  the 
local  jurisprudence.  17  Thus  the  marriage  laws  are  of  a  local  character 
and  the  State  court's  construction  thereof  is  controlling. is  In  deciding 
upon  the  rights,  status  and  liabilities  of  husband  and  wife,  the  Federal 
courts  look  to  the  law  of  their  doraicil;  and  to  the  law  of  the  State 
where  property  lies,  in  determining  their  rights  therein. i9  The  right 
to   the  custody   of   infants   is   determined  by   State  law   and   decisions; 20 

Ct.   Rep.    981;    Barron    S.   S.    Co.   v.  Tnllock   v.   Mulvane,   184  U.   S.  497, 

Kane,  170  U.  S.   112,  42  L.  ed.   969,  46  L.  ed.  657,  22  Sup.  Ct.  Rep.  372. 
18  Sup.  Ct.  Rep.  .530;  Stewart  v.  Bal-         ivA   number    of   cases    merely   de- 

timore  etc.  Ry.  168  U.  S.  448,  42  L.  clare  the   rule  that   State  laws   and 

€d.  539,  18  Sup.  Ct.  Rep.  100.  decisions    of    a    local    character    are 

SLoiiisville,  etc.  R.  R.  v.  Lansford,  binding   on    the    Federal   courts:    01- 

102  Fed.  62,  42  C.  C.  A.  160.  cott  v.  Supervisors,  16  Wall.  689,  21 

loRogers   v.   Cincinnati  etc.   R.   R.  L.  ed.  382;  Allen  v.  Massev.  17  Wall. 

130  Fed.  574,  09  C.  C.  A.  321.  354,  21  L.  ed.  542;   Bowditch  v.  Bos- 

iiln   re   Foley,   76   Fed.   390.  ton,  101  U.  S.  19,  25  L.  ed.  980;  Gib- 

i2Camden,  etc.  R.  R.  v.  Stetson,  104  son  v.  Lyons,  115  U.  S.  446,  29  L.  ed. 

Fed.  651,  44  C.  C.  A.  107.  440.  6  Sup.  Ct.  Rep.  129;   Gardner  v. 

isHorner  v.  Brown,  16  How.  303,  14  Michigan  Cent.  150  U.  S.  357,  37  L. 

L.  ed.  970.  ed.  1107,  14  Sup.  Ct.  Rep.  140;  Lown- 

iiSee  Derby  v.  Jacques,  1  Cliff.  439.  des  v.  Huntington.  153  U.  S.  18.  38  L. 

Fed.   Cas.  No.  3,817.  ed.  615.  14  Sup.  Ct.  Rep.  758;  Averv 

ir>Riee  v.  Adler,  71  Fed.  151,  18  C.  v.   Popper,   179  U.   S.   315,  45  L.   ed. 

C.  A.  15.  207.  21  Sup.  Ct.  Rep.  97.  98. 

iGFitlelitv  etc.  Co.  v.  Bucki,  189  U.        isMeister  v.   Moore,    96   U.   S.   82. 

S.  135,  47  L.  ed.  744,  23  Sup.  Ct.  Rep.  24  L.  ed.  826. 

582.     But   a  State  should  not  allow        isChoely  v.  Clayton.  110  U.  S.  709, 

attorney   fees   in  suit   on   a   Federal  28  L.  ed.  301,  4  Sup.  Ct.  Rep.  332. 
injunction    bond    where    the    Federal        20ln  re  Burrus,  136  U.  S.  024,  34  L. 

equity   practice   does   not   permit   it.  ed.  512.     In  re  Barry,  42  Fed.  132. 
Fed.  Proc— 6.                                 81 


§   10   [ff] 


FEDERAL  JURISDICTION  IX   GENERAL. 


[Code  Fed. 


also  the  status  of  a  slave.i  The  measure  of  damages  on  an  attachment 
bond  given  in  the  State  court,  provided  by  the  State  law,  must  be  ap- 
plied by  the  Federal  court  when  suit  on  such  bond  is  removed  thereto. 2 
As  already  shown,  State  tax  laws  and  the  decisions  construing  them 
often  affect  titles  to  property  and  hence  are  conclusive  as  rules  of  prop- 
erty.3  The  authorities  also  show  that  the  Federal  courts  will  in  other 
cases  follow  the  State  court's  construction  of  local  tax  laws  where  no  Fed- 
eral questions  are  involved; 4  and  will  accept  the  State  court's  decision  that 
a  tax  law  is  sufficient  under  the  State  constitution; 5  or  a  State  decision 
as  to  property  exempt  from  State  taxation,  though  slow  to  pronounce  an 
exemption  in  advance  of  such  decision. 6 

[ff]     Rule  where  local  law  rests  simply  in  judicial  decisions. 

In  the  absence  of  any  controlling  local  statute,  the  Federal  courts  as 
coordinate  State  tribunals  may,  within  certain  limits,  exercise  their  own 
judgment,  as  to  what  the  local  law  is,io  and  frequent  divergencies  of  view 
between  Federal  and  State  courts  have  resulted.  Prior  State  decisions 
are  no  more  binding  upon  them  than  upon  the  State  supreme  court.n 
It  is  observed,  however,  that  the  Federal  cases  of  this  type  do  not  disre- 
gard the  State  decisions  upon  an  assertion  of  a  right  to  disregard  the  local 
law.  It  is  still  the  local  law  that  they  administer  and  merely  the  judicial 
interpretation  thereof  in  the  State  tribunals  that  they  question.  They 
recognize  the  fact  that  decisions  by  the  highest  State  court  are  good  evi- 
dence of  the  local  law;  12  and  decisions  by  a  Supreme  Court  commission  are 
in  the  same  category.is  They  assume  that  the  State  decision  is  deliberate 
and  after  thorough  consideration;!^  and  lean  towards  the  same  view  in  case 
of  doubt. 15  They  endeavor  to  avoid  any  unseemly  conilict.is  A  series  or 
course   of    State   decisions    establishing   a   local  rule   of   property    will   be 


iDred  Scott  v.  Sanford,  19  How. 
452,  15  L.  ed.  783. 

2Fidelity,  etc.  Co.  v.  Bucki  Co.  189 
U.  S.  135,'  47  L.  ed.  745,  23  Sup.  Ct. 
Rep.  582. 

3See  supra,  note.[b] 

4ln  re  Tvler,  149  U.  S.  187,  37  L. 
ed.  689,  13"^ Sup.  Ct.  Rep.  785;  Lewis 
v.  Monson,  151  U.  S.  549.  38  L.  ed. 
265,  14  Sup.  Ct.  Rep.  424;  Commercial 
Bank  v.  Chambers,  182  U.  S.  560,  45 
L.  ed.  1229,  21   Sup.  Ct.  Rep.  863. 

50sborne  v.  Florida,  164  U.  S.  654, 
41  L.  ed.  586,  17  Sup.  Ct.  Rep.  214; 
Merchants  Bk.  v.  Pennsvlvania,  167 
U.  S.  463,  42  L.  ed.  237,' 17  Sup.  Ct. 
Rep.  830. 

6Ford  V.  Delta  &  P.  L.  Co.  164  U. 
S.  675.  41  L.  ed.  590,  17  Sup.  Ct. 
Ren.  230,  2.35;  New  Orleans  v.  Stem- 
fel,  175  U.  S.  316,  44  L.  ed.  174,  20 
Sup.  Ct.  Ren.  112. 

lOBurgess  v.  Seligman.  107  U.  S. 
33,  27  L.  ed.  359,  2  Sup.  Ct.  Rep.  10; 


82 


East  Ala.  Ry.  v.  Doe,  114  U.  S.  353. 
29  L.  ed.  136,  5  Sup.  Ct.  Rep.  869; 
Casserleigh  v.  Wood,  119  Fed.  308.  56 
C.  C.  A.  212. 

11  See  post,  §  12,  note.Cb] 

i2Swift  v.  Tvson,  16  Pet.  18,  10  L. 
ed.  865;  In  re  Barry,  42  Fed.  132:  In 
re  Burrus,  136  U.  S.  624,  note,  34  L. 
ed.  512,  note;  Wade  v.  Travis  Co.  174 
U.  S.  508,  43  L.  ed.  1000,  19  Sup. 
Ct.  Rep.  715. 

isAnkinnev  v.  Ilannon,  147  U.  S. 
126,  37  L.  ed.'  105.  But  see  Montgom- 
erv  V.  McDermott,  103  Fed.  801,  43 
€.'  C.    A.    348. 

i4Cross  V.  Allen,  141  U.  S.  539,  35 
L.  ed.  843,  12  Sup.  Ct.  Rep.  67. 

isClark  v.  Bever.  139  U.  S.  117, 
35  L.  ed.  88.  11  Sup.  Ct.  Rep.  468; 
Daly  V.  James,  8  Wheat.  535,  5  L.  ed. 
670;  Yazoo,  etc.  R.  R.  v.  Adams, 
181  U.  S.  583,  45  L.  ed.  1012,  21  Sup. 
Ct.  Rep.  729. 

lePleasaiit  Twp.  v.  Aetna  Ins.  Co. 


Procedure]  WHAT  LAW  ADMINISTERED  §   10   [h] 

followed  by  the  Federal  courts  as  completely  as  a  local  statute  would  be 
followed.  1"  The  same  is  true  of  State  decisions  establishing  the  common 
law  or  public  policy  of  a  State. is  It  is  in  the  absence  of  State  decision, 
or  where  there  is  but  one  or,  if  more,  where  they  are  conflicting,  or 
change  the  rule,  that  the  divergence  of  view  arises. 

[g]  Repeated  State  decisions  respecting  local  common  law  and  public 
policy. 
Repeated  decisions  of  the  highest  State  court  come  to  be  recognized  as 
authoritative  and  binding  expositions  of  the  common  law  of  a  State 
and  of  its  laws  and  customs  of  a  local  character,!  especially  when  af- 
fecting land  titles. 2  It  has  been  said  however  that  the  Supreme  Court  does 
not  feel  bound  by  a  State  court's  application  of  common  law  rules  to  the 
determination  of  private  rights. 3  It  is  also  decided  that  a  single  State  deci- 
sion construing  a  State's  common  law  is  not  conclusive. "5  Where  a  question 
arises  as  to  public  policy  of  a  state,  respecting  acts  done  or  contracts  made 
the  Supreme  Court  has  declared  the  State  decisions  to  be  binding  where 
the  contract  or  matter  is  wholly  within  the  State's  legislative  control 
and  no  Federal  question  or  principle  of  general  commercial  jurisprudence 
is  involved. 5  "\ATiere  the  State  law  shows  it  to  be  the  policy  of  the  State 
not  to  permit  a  vendor  of  personalty  to  remain  in  possession  to  the  preju- 
dice of  his  creditors  the  Federal  courts  will  recognize  and  adopt  such 
policy. 6  A  State's  declared  policy  as  to  admitting  life  insurance  com- 
panies to  do  business  must  be  respected  by  the  Federal  courts.'?  Where 
a  territorial  legislature  has  adopted  the  common  law,  the  Supreme  Court 
will   be   bound    thereby. s 

[h]  —  in  absence  of  State  decision. 

In  the  absence  of  State  decision  the  Federal  courts  are  of  course 
bound  to  decide  questions  of  State  law  and  also  of  the  meaning  and 
construction   of    State    statutes    and    constitutional    provisions    for   them- 

138  U.  S.  73,  34  L.  ed.  8G4,  11   Sup.  553;   Murray  v.  Chicago,  etc.  Ry.  92 

Ct.  Rep.  215.  Fed.   871,  35  C.  C.  A.  G2.     See  also 

ifSee  supra,  note.[t>]  infra,  note,     [i] 

isSee  infra.  note.Eg]  sSee  Hartford  Ins.  Co.  v.  Chicago, 

iBurgess    v.    Seligman.    107   U.    S.  etc.  R.  R.  175  U.  S.  108,  44  L.  ed.  84, 

20,  27  L.  ed.  365;  2  Sup.  Ct.  Rep.  10;  20  Sup.  Ct.  Rep.  37  and  cases  there 

Bucher  v.  Railroad.  125  U.  S.  583.  31  cited.      Vidal   v.   Giard,   etc.   2   How. 

L.  ed.  795.  8  Sup.  Ct.  Rep.  978;  Bon-  198.    11    L.    ed.    233;    Detroit    v.    Os- 

durant  v.  Watson.  103  U.  S.  289,  20  borne.   135  U.   S.  498,  499,  34  L.  ed. 

L.   ed.   450.  202.    10  Sup.    Ct.   Rep.    1013;   Parker 

2Beauregard    v.    New    Orleans,    18  v.  Moore,   115  Fed.  799,  53  C.  C.  A. 

How.  502,  15  L.  ed.  469.  and  see  supra.  369. 

In  re  Zug.  16  Nat.  Bk.  Reg.  2S0,  30  eDooley  v.  Pease,  180  U.  S.  128,  45 

Fed.  Cas.  948:  Malcomson  v.  Wappo  L.  ed.  4.59.  21  Sup.  Ct.  Rep.  329. 

Alills,  85  Fed.  908.  TMcClain  v.  Provident,  etc.  Ins.  Co. 

3C)iicag(>  V.  Robbins,  2  Black,  428,  110  Fed.  80.  49  C.  C.  A.  31. 

17  L.  ed."298.  nValker  v.  New  ]\Iexico  etc.  R.  R. 

4Foxcroft  V.  Mallett,  4  How.  379,  165  U.  S.  004,  41  L.  ed.  837,  17  Sup. 

i  1  L.  ed.  lOOS;  Union  P.  Rv.  v.  Yates,  Ct.  Rep.  421. 
79  Fed.  589,  25  C.  C.  A.  103,  40  L.R.A. 

83 


§   10   [h]  FEDERAL  JURISDICTION  IN  GENERAL.  [Code  Fed. 

selves.  10  But  a  subsequent  State  decision  opposed  to  the  earlier  Federal 
one,  will  usually  be  accepted  and  followed  by  the  Federa  court.n 
especially  where  title  to  realty  is  affected  by  the  rule,i2  or  the  con- 
struction of  a  local  statute.13  In  such  cases  where  the  State  decision 
intervenes  between  the  judgment  rendered  at  circuit  and  the  decision  of 
an  appeal  therefrom,  the  State  decision  will  ordinarily  be  followed  by 
the  appellate  court,i4  though  the  supreme  court  has  refused  to  recognize 
such  an  intervening  State  decision  contrary  to  its  convictions,  and  to 
the  injury  of  a  nonresident  creditor.!  5  Nor  will  the  Supreme  Court  ac- 
cept such  subsequent  State  decision  where  contract  rights  have  vested  un- 
der their  contrary  holding.^  6  In  any  event  a  subsequent  State  decision 
does  not  render  the  Federal  judgment  erroneous  on  its  face.i'?  The  Fed- 
eral court  has  refused  to  suspend  its  decision  until  the  determination  of 
a  similar  suit  in  the  State  court,i8  and  has  refused  to  examine  allega- 
tions that  the  State  case  in  which  decision  was  rendered  was  not  a  genuine 
one.i9  If  contract  rights  have  vested  prior  to  any  construction  of  a  law 
by  either  State  or  Federal  court,  the  Federal  courts  assert  a  right  to  ex- 

lOO'Brien  V.  Wheelock,  95  Fed.  904,  sion.     See    Knight    v.    Shelton.    134 

:J7   C.  C.  A.  309;    Coates  v.  Muse,  1  Fed.  623;   Mitchell  Co.  v.  Matthues, 

Brock.     537.     Fed.     Cas.    No.    2.916;  134    Fed.    493,    and    Sioux    Falls    v. 

Groves  v.  Slaughter,   15  Pet.  499.  10  Farmers  L.  &  T.  Co.  136  Fed.  721,  69 

L.  ed.  800;     Burgess     v.     Sellgman,  C.  C.  A.  373.  following  State  decision 

107    U.    S.     34.    27    li.    ed.     359,      2  while  Federal  cause  pending. 

Sup.  Ct.  Rep.  10;   Folsom  v.  Ninety-  i5Pease  v.  Peck,  18  How.  598,  599, 

six.     etc.      159    U.     S.     625,      40    L.  15  L.  ed.  520;  Roberts  v.  Bolles,  101 

od.  278,  16  Sup.  Ct.  Rep.  174;  Breed  U.   S.   129,   25  L.   ed.   880.     And   see 

V.    Glasgow    Ins.    Co.    71    Fed.    909;  Strvker  v.  Board  of  Comrs.  77  Fed. 

Knight  V.  Shelton.   134  Fed.  423.  583,  23  C.  C.  A.  286. 

iiGreen  v.  Neal,  6  Pet.  299,  300,  leCity,  etc.  Co.  v.  Otturawa,  120 
8  L.  ed.  402;  New  Orleans  W.  Wks.  Fed.  309;  Rowan  v.  Runnels,  5  How. 
Co.  V.  Southern,  etc.  Co.  36  Fed.  833;  139,  12  L.  ed.  85;  Julian  v.  Central  T. 
Andrews  v.  National  P.  &  F.  Wks.  Co.  193  U.  S.  93,  48  L.  ed.  629,  24 
76  Fed.  166,  22  C.  C.  A.  110.  36  L.R.A.  Sup.  Ct.  Rep.  399;  Burgess  v.  Selig- 
139;  Fairfield  v.  Gallatin  Co.  100  U.  man,  107  U.  S.  33,  34,  27  L.  ed.  359, 
S.  52,  25  L.  ed.  544;  Western  U.  T.  2  Sup.  v.t.  Rep.  10;  Foote  v.  John- 
Co.  V.  Poe,  64  Fed.  11.  See  post,  §  son  Co.  5  Dill.  285,  Fed.  Cas.  No. 
12,  note,   [a]  4,912;    King   v.   Dundee,    etc.    Co.    11 

i2Suydam  v.  Williamson,  24  How.  Sawv.   666,   28    Fed.   33.      See   infra, 

433,  16  L.  ed.  742.  note,    [k] 

isMoores  v.  National  Bk.  104  U.  S.  i^Hoffman  v.  Knox,  50  Fed.  491,  1 

629,   26  L.   ed.   870 :    McCall  v.  Han-  C.  C.  A.  535. 

cock,    10    Fed.    9,    20    Blatchf.    344;  isLoring  v.  Marsh.  2  Cliff.  319,  Fed. 

Kibbe  v.  Ditto,  93  U.  S.  680,  23  L.  ed.  Cas.  No.  8,514;   Roberts  v.  Northern 

1005.  Pac.  R.   R.    158   U.   S.  26,   39  L.   ed. 

i4Atlantic,  etc.  R.  R.  v.  Hopkins.  873,  15  Sup.  Ct.  756.     See  Knight  v. 

94   U.    S.    11,    24   L.    ed.   48;    United  Shelton,  134  Fed.  423,  following  State 

States  V.  Morrison,  4  Pet.  137,  7  L.  decision  rendered  while  Federal  case 

ed.  804;  Moores  v.  National  Bk.  104  pending. 

U.  S.  629,  26  L.  ed.  870.     See  Stuts-  19 Sioux  Falls  v.  Farmers  L.  &  T. 

man   Co.  v.  Wallace,   142  U.   S.   306,  Co.    136   Fed.   721,  69  C.   C.  A.   373. 
35  L.  ed.  1022,  12  Sup.  Ct.  Rep.  231, 
following    a    State    decision    though 
case  appealed  before   State's  admis- 

84 


II 


Procedure]  WHAT   LAW   ADMINISTERED.  §   10   [i] 

ercise  an  independent  judgment  as  to  the  meaning  of  such  laws  regardless 
of  an  intervening  State  decision. 20 

[i]  —  single  and  conflicting  decisions. 

The  Federal  courts  have  frequently  refused  to  follow  a  single  State 
decision  not  founded  upon  a  statute,  and  not  a  rule  of  property,i  especial- 
ly where  seemingly  made  under  a  misapprehension, 2  or  where  the  rea- 
sons assigned  are  not  satisfactory ;  3  or  where  obtained  by  collusion.^ 
They  do  not  consider  themselves  bound  by  the  decision  of  an  inferior 
State  court,5  nor  where  the  question  was  not  directly  decided. 6  In 
cases  of  conflict  between  the  State  decisions  construing  local  laws  they 
have  asserted  a  right  to  decide  for  themselves;  7  so  also  where  a  doctrine 
is  criticized  by  a  later  State  case. 8  In  one  case  it  is  declared  that  the 
Supreme  Court  will  not  follow  mere  oscillations  in  the  course  of  settle- 
ment of  questions  in  the  State  courts.  9  Where  the  decision  of  a  Supreme 
court  commission  conflicts  with  one  of  the  court  proper,  the  Federal  court 

2  0Louisville   T.   Co.   v.    Cincinnati,  ed.  996,  15  Sup.  Ct.   Rep.  954.     But 

76  Fed.  296,  22  c.  C.  A.  334;  Bartholo-  see  Sioux  Falls  v.   Farmers  L.  &  T. 

mew   V.   Austin,   85   Fed.   359,   29  C.  Co.  136  Fed.  721,  69  C.  C.  A.  373. 

C.  A.  568;  Jones  v.  Hotel  Co.  86  Fed.  sBeals  v.  Hale,  4  How.  54,  11  L.  ed. 

375,  30  C.  C.  A.  108;  Speer  v.  Board,  873;   Patapsco,  etc.  Co.  v.  Morrison, 

88  Fed.  749,  32  C.  C.  A.  101 ;  Clapp  v.  2  Woods,  404;  Fed.  Cas.  No.  10,792. 
Otoe  Co.  104  Fed.  473,  45  C.  C.  A.  See  -xitchell  Co.  v.  Matthews,  134 
579;  Southern  Pine  Co.  v.  Hall,  105  Fed.  493,  following  decision  by  single 
Fed.    84,   44    C.    C.   A.    363;    United,  judge. 

etc.  Co.  V.  Harris,  113  Fed.  27;  Great,  eCarroll  v.  Carroll,  16  How.  275,  14 

etc.  Hotel  Co.  v.  Jones,  116  Fed.  793,  L.  ed.  936;    St.  Louis,  etc.  R.  A.   v. 

54  C.  C.  A.  165;  Brunswick,  etc.  Co.  V.  Terre   Haute,   etc.   R.   R.    145   U.    S. 

Xat.  Bank,  112  Fed.  812.  403,  404,  36  L.  ed.  748,  12  Sup.   Ct. 

iLane  v.  Vick,  3  How.  476. 11  L.  ed.  Rep.  953;  Keokuk,  etc.  R.  R.  v.  Coun- 
687;  Gibson  v.  Lyon,  115  U.  S.  446,  ty  Court,  41  Fed.  306;  Myrick  v. 
29  L.  ed.  442,  6  Sup.  Ct.  Rep.  132;  Heard.  31  Fed.  243:  Matz  v.  Chicago, 
Barber  v.  Pittsburgh,  etc.  R.  R.  166  etc.  Co.  85  Fed.  183;  Stowe  v.  Sav. 
U.  S.  99,  41  L.  ed.  933,  17  Sup.  Ct.  Bank,  92  Fed.  90:  Wiemer  v.  Louis- 
Rep.  491;  Murray  v.  Chicago,  etc.  R.  ville  W.  Co.  130  Fed.  251.  But  see 
R.  92  Fed.  871,  35  C.  C.  A.  62;  Ryan  Phelps  v.  Harris,  101  U.  S.  382,  383, 
V.  Staples,  76  Fed.  727,  23  C.   C.  A.  25  ^.  ed.  855. 

Fed.  100;  Chisholm  v.  Caines,  67  Fed.  TQhio,  etc.  Trust  Co.  v.  Debolt,  16 

294;    Bancroft   v.    Hambly,    94    Fed.  How.  431,  14  L.  ed.  997;  San  Antonio 

979,  36  C.  C.  A.  595;   Union  P.  Ry.  v.  Mahaffv,  96  U.   S.   315,  24  L.   ed. 

V.  Yates,    79  Fed.   589,   25  C.   C.  A.  816;  Chisholm  v.  Caines,  67  Fed.  294; 

103,  40  L.R.A.   553.  Morris   v.  United   States,   174  U.   S. 

zPreston  v.  Bowmar,  6  Wheat.  583,  240,  43  L.  ed.  946,  19  Sup.  Ct.  Rep. 

5  L.  ed.  330:   Lauriat  v.  Stratton.  6  649;    Southern    P.   Co.   v.    Orton,   32 

Sawy.  347,  11  Fed.  114:  Keokuk,  etc.  Fed.  477;   Wilson  v.  Lumber  Co.  67 

Ry.  V.  County  Court,  41  Fed.  314.  Fed.  682.     But  see  New  Orleans,  etc. 

3Levy  V.  Stewart,  11  Wall.  255,  20  Co.  v.  Southern,  etc.  Co.  36  Fed.  834. 

L.  ed.  86;   Coler  v.  Board  of  Comrs.  sBrunswick,  etc.  Co.  v.  Nat.  Bank, 

89  Fed.  257;  United,  etc.  Co.  v.  Har-  112  Fed.  812. 

ris,  113  Fed.  27;  Smith  v.  Atl.  Ins.  sGelpcke  v.  Dubuque,  1  Wall.  205, 
Co.  22  Fed.   Cas.  425.  17  L.  ed.  520. 

4Andes  v.  Ely,  158  U.  S.  318,  39  L. 

85 


§   10   [j] 


FEDERAL    JURISDICTION    IN    GENERAL. 


[Code   Fed. 


will    follow   the   latter. lo     Where   the    State   law  is   unsettled   the  circuit 
court  may  properly  follow  the  Federal  Supreme  Court. n 

[j]  —  State  decisions  changing  the  local  rule. 

The  general  doctrine  of  the  cases  is  that  the  Federal  courts  will  adopt 
a  change  in  a  local  rule  of  property  made  by  the  State  decisions.12  In 
other  words  they  will  generally  follow  the  latest  decision; is  btit  will 
sometimes  refuse  to  accept  the  latest  of  conflicting  decisions  where  the 
qviestion  does  not  really  seem  settled;  1*  or  a  late  decision  at  variance 
with  a  lonsr  line  of  earlier  decisions.i5 


[k]  —  change  in  local  decisions  impairing  vested  contract  rights. 

Although  a  judicial  decision  is  not  a  law  within  the  obligation  clause 
of  the  constitution;!  yet  where  a  contract  when  made  is  valid  under 
the  existing  judicial  construction  of  the  State  laws,  the  Federal  courts 
will  not  become  parties  to  its  impairment  by  following  a  subsequent 
change  in  such  judicial  construction. 2  In  other  words  the  Federal  courts 
will  not  accept  and  follow  a  change  in  the  State  judicial  interpretation 
of  the  local  law  to  the  injury  of  contract  rights  that  have  vested  under 
the  earlier  construction. s  The  most  frequent  application  of  this  rule  has 
been  in  the  case  of  municipal  bonds  sold  to  bona  fide  purchasers  under 
State  decisions  sustaining  their  validity,  which  were  departed  from  in  sub- 
sequent decisions.4  The  rule  has  been  applied  even  though  at  the  time  of 
sale  of  bonds  there  were  no  state  decisions,  and  adverse  rulings  have  been 

lOMontgomery  v.  McDermott,   103  v.  Pilsbury,  105  U.  S.  294,  26  L.  ed. 

Fed.  801,  43  C.  C.  A.  348.  1090;    Los    Angeles    v     Los    Angeles 

iiOber  V.  Gallagher,  93  U.  S.  207,  Water  Co.   177  U.  S.   *V;5,  44  L.  ed. 

23  L.  ed.  829.  894,  20  Sup.  Ct.  Rep.  736;  Supervis- 

i2Green  v.   Neal,   6  Pet.   299,   300,  ors   v.    United    States,    18   Wall.    82, 

8  L.  ed.  402;  Fairfield  v.  Gallatin  Co.  21  L.  ed.  771. 

100  U.  S.  52.  54,  25  L.  ed.  54G,  547;        3x\nderson  v.  Santa  Anna,   116  U. 

Western   U.  Co.  v.  Poe,   64   Fed.   13.  S.  361.  29  L.  ed.  633,  6  Sup.  Ct.  Rep. 

isUnited  States  V.  Morrison,  4  Pet.  413;   Morgan  v.  Curtenius,  20  How. 

124,  7  L.  ed.  804;   Wade  v.  Travers  3,  15  L.  ed.  823;   Lee  Co.  v.  Rogers, 

Co.    174    J.   S.   508.    43   L.    ed.   1060,  7  Wall.  183,  19  L.  ed.  160;  Mitchell  v. 

19  Sup.  Ct.  Rep.  71 S-  King  v.  Wilson,  Burlington,    4    Wall.    275,    18    L.    ed. 

1  Dill.  567,  Fed.  Cas.    .0.  7,810;  Mitch-  350;  Louisville,  etc.  Ry.  v.  Gaines,  2 

ell  V.  Lippincott,  2  Woods,  473,  Fed.  Flipp.  630,  3  Fed.  274;  Jones  v.  Hotel 

Cas.  No.   9,665;    Smith  v.  Slu-iver,   3  Co.  86  Fed.  372;  Wicomico  Co.  Conirs. 

Wall.  Jr.  228,  Fed.   Cas.  No.   13.108.  v.   Bancroft,   135  Fed.   977,  70   C.  C. 

But   see  Nelson  v.   Madison,  3  Biss.  A.  287;   Rollins  v.  Lake  Co.  34  Fed. 

253,  Fed.  Cas.  No.   10,110.  846;  Bartholomew  v.  Austin,  85  Fed. 

i4Myrick  v.  Heard,  31  Fed.  243.  366.  29  C.  C.  A.  568;  Clark  v.  Bever, 

15 Wilson   V.  Ward  L.  Co.  67   Fed.  139  U.  S.  117,  35  L.  ed.  97,  11  Sup.  Ct. 

681;    Forsyth  v.   Hammond,   71   Fed.  Rep.   475;   Vermont,  etc.   Co.   v.  Dy- 

454,  18  C."  C.  A.  178.  gert,  89   Fed.   124;    Westinghouse  A. 

lUniversity  v.  People,  99  U.  S.  320,  B.  Co.  v.  Kansas,  etc.  Ry.  137  Fed.  26, 

25  L.  ed.  387.  (C.  C.  A.);    Farmers  L.  &  T.  Co.  v. 

20hio,  etc.  Co.  v.  Debolt.  16  How.  Sioux  Falls,  131   Fed.  890;  Caesar  v. 

432,   14   L.   ed.   997;    Gelpcke  v.   Du-  Capell,  83  Fed.  427;   McCall  v.  Han- 

buque,  1  Wall.  205,  206,  17  L.  ed.  520;  cock,  10  Fed.  9,  20  Blatchf.  344. 
Haveraeyer  v.  Iowa  Co.  3  Wall.  303,        4 See  note  to  Gelpcke  v.  Dubuque, 

18  L.  ed.  38;  Taylor  v.  Ypsilanti,  105  in   Book   VL,   U.    S.   Notes,    p.   303; 

U.  S.  72,  26  L.  ed.  1008;   Louisiana  City    of    Lamson,    9    Wall.   486,   19 

86 


Procedure]  WHAT  LAW  ADMINISTERED.  §   10   [1] 

ignored  where  made  after  the  rights  of  parties  had  become  fixed. 5  Other 
cases  have  gone  still  further  and  upheld  municipal  bonds  though  the 
State  decisions  were  numerous  and  uniform  the  other  way,  on  the 
ground  that  the  question  of  their  validity  was  one  of  general  commercial 
law  as  to  which  the  Federal  courts  might  ignore  State  decisions. 6  But  later 
State  decisions  sustaining  the  validity  of  bond  issues  will  be  follov/ed  by 
Federal  courts  rather  than  early  adverse  decisions.''  The  principle  of  the 
foregoing  cases  cannot  however,  be  applied  by  the  Supreme  Court  on 
error  to  a  State  cour^  since  the  only  matter  there  reviewable  is  the  de- 
nial of  a  Federal  right  and  a  State  decision  reversing  earlier  cases  or 
misconstruing  a  contract  is  not  a  law  inpairing  its  obligation.^  Nor 
should  this  principle  be  applied  where  it  would  result  in  conflicting  rules 
respecting  land  titles  within  a  State;  as  for  example  by  following  early 
State  cases  upholding  a  wife's  right  to  mortgage  her  separate  estate  foif 
a  husband's  debts  rather  than  later  State  cases,  contra. 9 

[1]     Matters  within   national  legislative  power — remedies   and   procedure. 

The  line  of  distinction  between  laws  Congress  may  and  may  not  pass 
under  its  power  to  organize  and  equip  the  Federal  courts  for  the  trial  of 
causes,  has  never  been  clearly  drawn.n  However  difficult  to  define,  it  is 
as  certain  that  the  power  has  its  limitations,  as  it  is  that  it  exists.  It 
cannot  safely  be  said  that  only  mere  matters  of  procedure  as  distinguished 
from    substantive    rights,    are    within    this    power    of    Congress,    for    the 

L.  ed.  725;  Olcott  v.  Supervisors,  16  v.  Aetna,  etc.  Ins.  Co.  138  U.  S.  73, 

Wall.  G93.  21  L.  ed.  382:  Commission-  34  L.  ed.  864.  11  Sup.  Ct.  Rep.  215; 

ers,  etc.  v.  Thayer,  94  U.  S.  642,  24  Barnum   v.   Okolona,   148  U.   S.   307, 

L.  ed.  135;  Louisiana  v.  Pillsburv.  105  37  L.  ed.  495,  13  Sup.  Ct.  Rep.  038; 

U.  S.  295,  26  L.  ed.  1096;   Township  Columbia  Av.  etc.  Co.  v.  Dawson,  130 

of  Elmwood  V.  Marcy.  92  U.  S.  294.  23  Fed.   152,   following  a    contrary   Fed- 

L.  ed.  910:  Douglas   v.  Pike  Co.   101  eral   case;    Northwestern    Sav.   Bank 

U.  S.  688.  25  L.  ed.  968;  Thompson  v.  v.  Centreville.  143  Fed.  81. 
Perriere,  103  U.  S.  818,  26  L.  ed.  612:        GTownship   of   Pine   Grove  v.  Tal- 

Bolles  v.  Brimfiekl,  120  U.  S.  759,  .30  cott,  19  Wall.  678,  22  L.  ed.  233.     In 

L.  ed.  786,  7  Sup.  Ct.  Rep.  736 ;  Knox  that  case  there  was  a  sort  of  legisla- 

Co.  v.  Ninth  Nat.  Bank.  147  U.  S.  99,  tive  recognition  of  the  validitv  of  the 

37  L.   ed.  93,  13   Sup.  Ct.   Rep.  267;  bonds.    See  also  Olcott  v.  Supervisors, 

Loeb  V.  Columbia,  etc.  Trustees,  179  16  Wall.  690,  21  L.  ed.  382;  Pana  v. 

U.  S.  492.  493.  45  L.  ed.  291,  21  Sup.  Bowler,  107  U.  S.  541,  27  L.  ed.  424, 

Ct.  Ron.  174:  Wilkes  Co.  v.  Coler,  180  2  Sup.  Ct.  Rep.  704. 
U.  S.  506,  45  L.  ed.  642,  21  Sup.  Ct.       TWade  v.  Travis  Co.  174  U.  S.  509, 

Rep.  458,  see  S.  C.  190  U.  S.  437,  47  L.  43  L.  ed.  1065.  19  Sup.  Ct.  Rep.  719; 

ed.  1126,  23  Sup.  Ct.  Rep.  811:  Foote  King  v.  Wilson,  1  Dill.  558,  568,  Fed. 

v.  Johnson  Co.  5  Dill.  284,  Fed.  Cas.  No.  Cas.  No.  7,810. 

4,912;  McCall  v.  Hancock,  20  Blatchf.        sCentral  Land  Co.  v.  Laidlev,  159 

346,  10  Fed.  9;  Union  Bank  v.  Board  U.  S.  Ill,  112,  40  L.   ed.   94,  95,   16 

of  Comrs.  90  Fed.  9;  Speer  v.  Board  Sup.    Ct.   Rep.    82;    Bacon   v.   Texas, 

of  Comrs.  88  Fed.  760,   32  C.   C.  A.  163  U.  S.  221,  222.  41  L.  ed.  137,  138, 

101;    Franklin   Co.    v.   Gardner   Sav.  16    Sup.    Ct.    Rep.    1029;    Turner    v. 

Ins.  119  Fed.  38,  55  C.  C.  A.  614;  Rees  Wilkes  Co.   173  U.   S.  463,  43  L.  ed. 

V.  Olmstead,  135  Fed.  296,  68  C.  C.  A.  768,  19  Sup.  Ct.  Rep.  465. 
50.  sMitchell   v.   Lippincott,   2  Woods. 

sBlock  V.  Commissioners,  99  U.  S.  470,  Fed.  Cas.  No.  9.665. 
699,    25   L.   ed.   491;    Pleasant    Twp.        nSee  post,   §   799. 

87 


§   10   [1]  FEDERAL  JURISDICTION   IN   GENERAL.  [Code   Fed. 

modes  prescribed  for  the  vindication  of  rights  often  practii;ally  deter- 
mine their  legal  existence.  Under  its  power  to  regulate  the  modes  of 
proceeding  in  Federal  courts,  Congress  may  prescribe  the  rules  of  evi- 
dence, the  time  for  bringing  actions,  the  forms  of  remedies,  and  the  modes 
of  enforcing  judgments  therein,  and  may  declare  what  property  shall  be 
subject  to  levy  on  execution  from  the  Federal  courts.  Upon  some  of  these 
matters  Congress  has  legislated  by  prescribing  a  viniform  Federal  law. 
Upon  others  it  has  declared  that  the  Federal  courts  shall  in  common  law 
causes  be  governed  by  the  rule  of  the  State  where  sitting.  In  this  latter 
class  of  cases  the  State  law  is  therefore  administered,  not  because  it  is 
binding  upon  Federal  courts  proprio  vigore,  but  because  Congress  has  de- 
clared that  it  shall  be  observed  and  followed.  In  such  cases  therefore  the 
question  when  a  rule  of  the  local  courts  must  be  administered  and  applied 
is  merely  a  question  of  the  proper  meaning  and  construction  of  the  acts 
of  Congress  and  does  not  involve  the  fundamental  principle  which  in  other 
cases  requires  a  recognition  of  the  local  law. 

In  the  matter  of  forms  of  proceeding  and  remedies,  for  instance.  Con- 
gress has  declared  that  the  local  law  shall  be  followed  by  Federal  courts 
in  common  law  causes.12  But  the  Federal  courts  very  properly  disre- 
gard a  change  in  the  local  law  on  the  subject  where  the  practice  act  has 
adopted  the  State  procedure  in  force  at  a  prior  time;i3  or  a  State  law 
forbidding  mandamus  in  aid  of  judgments,  where  the  Federal  practice  act 
otherwise  requires.i*  Other  cases  have  admini.stered  a  new  State  statut- 
tory  rerDedy;i5  or  followed  the  local  statute  and  decisions  as  to  procedure 
because  the  Federal  statute  so  required; is  or  disregarded  it  upon  the 
same  theory  ;17  or  refused  to  accept  the  State  decisions  interpreting  the 
local  practice  acts; is  or  refused  to  be  bound  by  local  decisions  respect- 
ing collateral  attack  upon  judgnients.is 

As  the  Federal  equity  practice  is  not  assimilated  to  that  of  the  States, 
the  rights  of  parties  under  a  Federal  injunction  bond  are  governed  by 
Federal  law;  hence  in  suit  thereon  in  a  State  court  the  latter  cannot  allow 
attorney's  fee  as  damages  contrary  to  the  Federal  practice.20  B\it  on 
the  other  hand,  where  suit  is  brought  in  the  Federal  court  on  a  State 
court  attachment  bond,  the  State  law  is  the  rule  of  decision,  and  the  Fed- 
eral court  cannot  disallow  an  attorney's  fee  as  damages  where  allowable 

i2Seepost,  §  900.  L.   ed.  973;   Doll  v.  Eqnitable  L.  A. 

isHomer  v.   Brown,   16  How.   363,  Soc.  138  Fed.  705.     See  King  v.  Davis, 

14  L.  ed.  970.  137  Fed.  108,  refusing  to  follow  State 

i^United  States  v.  Capdovielle,  118  decisions  as  to   presumptions  in  aid 

Fed.  809,  55  C.  C.  A.   421.  of  defective  substituted  service. 

isCampbellsville,   etc.  Co.  v.  Hub-  isPhoenix    B.    Co.  v.  Castleberry, 

bert,   112  Fed.  718,  50  C.  C.  A.  435.  131  Fed.  175,  65  C.  C.  A.  481. 

16 Atlantic  &  P.  R.  R.  v.  Hopkins,  2  0Tullock    v.   Mulvane,    184   U.    S. 

94  U.  S.  11,  24  L.  ed.  48.  514,  46  L.  ed.  657,  22  Sup.  Ct.  Rep. 

17  Butz  v.  Muscatine,  8  Wall.  582,  372;   Missouri,  etc.  R.  R.  v.   Elliott, 

19  L.  ed.  490,  494.  184  U.  S.  530,  46  L.  ed.  673,  22  Sup. 

isAmis  V.   Smith,  16  Pet.  313,   10  Ct.  Rep.  446. 

88 


I 


Procedure]  WHAT  LAW  ADMINISTERED.  §   10   [mj 

under  the  State  practice. 21  In  each  case  the  question  what  law  governs, 
is  determined  by  ascertaining  whether  the  State  or  the  nation  has  power 
to  prescribe  the  rule. 

[m]  Matters  within  legislative  powers  of  Congress — limitation  of  actions. 
Statutes  of  limitation  are  concerned  rather  with  the  mode  of  enforcing 
rights  than  with  their  existence;  with  procedure  rather  than  with  sub- 
stantive rules  of  law.  But  whether  they  always  affect  merely  the  remedy 
and  not  the  right, 1  it  seems  plain  that  under  its  power  to  prescribe  the 
procedure  of  Federal  courts.  Congress  would  have  an  undoubted  right  to 
prescribe  the  time  within  which  suitors  may  apply  to  Federal  courts  for 
relief. 2  Hence  the  Federal  cases  declaring  when  State  statutes  of  limi- 
tation and  the  decisions  thereunder  shall  be  held  binding  upon  them 
involve  merely  a  question  of  the  proper  meaning  and  construction  of  the 
act  of  Congress  making  the  State  laws,  rules  of  decision.3  Under  that  act 
the  local  statutes  of  limitation  and  the  decisions  thereunder  are  rules  of 
decision  in  actions  at  common  law.  The  cases  have  very  uniformly* 
recognized  the  propriety  of  regarding  the  local  acts  of  limitation  as  rules 
of  property;  and  such  statutes  and  the  local  decisions  thereunder  are 
deemed  binding.s  This  is  especially  true  in  cases,  in  equity  as  well  as  at 
law,  involving  the  question  of  title  to  land  by  adverse  possession. «     The 

2iFidelity   &   D.   Co.   v.   L.   Bucki,  814;    Texas,   etc.   Rv.   v.    Smith,   159 

etc.  Co.  189  U.  S.  135,  47  L.  ed.  744,  U.   S.  71,  40  L.   ed.'  77,   15   Sup.  Ct. 

23  Sup.  Ct.  Rep.  582.  Rep.   904;    Bauscrman   v.   Blunt.    147 

iSee  Michigan  Ins.  Bank  v.  Eldred,  U.  S.  652,  37  L.  ed.  318,  13  Sup.  Ct. 
130  U.  S.  696.  32  L.  ed.  1081,  9  Sup.  Rep.  466;  Michigan  Ins.  Bank  v.  El- 
Ct.  Rep.  696,  declaring  that  statutes  dred,  130  U.  S.  696,  32  L.  ed.  1081. 
of  limitation  of  personal  actions  are  9  Sup.  Ct.  Rep.  691;  Metcalf  v.  Wat- 
laws  affecting  remedies  onh',  and  not  ertown,  153  U.  S.  673,  38  L.  ed.  861, 
rights.                                      "  14  Sup.  Ct.  Rep.  947;   Bovle  v.   Ar- 

2See   Amv   v.   Dubuque.   98   U.    S.  ledge.  Hemp,  622.  Fed.  Cas.' No.  1.758: 

471,  25  L.  ed.  229.     Post,  §  799.  French  v.  Edwards,  4  Sawy.  129.  Fed. 

3See  Michigan  Ins.  Bank  v.  Eldred,  Cas.  ao.  5.097;   Tioga,  etc.  R.  R.   v. 

130  U.  S.  696,  32  L.  ed.  1081.  9  Sup.  Blossburg,   etc.   R.  R.   20  Wall.    150, 

Ct.  Rep.  091.  22  L.  ed.   337:   Black  v.  Elkhorn  M. 

^Campbell   v.    Haverill,    155   U.    S.  Co.  47  Fed.  603;  Elder  v.  McClaskev, 

614,  39  L.  ed.  282,  15  Sup.  Ct.  Rep.  70  Fed.  538,  17  C.  C.  A.  251;  Butler 

219.  V.  Poole,  44  Fed.  586;  Brown  v.  Hiatt, 

sDaire  v.  Briggs,  97  U.  S.  637,  24  1  Dill.  377,  Fed.  Cas.  No.  2.011:  Bur- 

T..    od.    1089;    Hanger   v.    Abbott,    6  leigh  v.  Rochester,  5  Fed.  673;   Bul- 

Wall.  537,  18  L.  ed.  942;   Porterfield  lion,  etc.  Bank  v.  Hegler,  93  Fed.  892. 

v.  Clark.  2  How.  125,  11  L.  ed.  185;  But  see  Rollins  v.  Lake  Co.  34  Fed. 

Andraea   v.   Redfield,   98   U.    S.   235,  846. 

25  L.  ed.  162;   Amv  v.  DulnKpie,  98  eElmendorf  v.   Tavlor,   10   Wheat. 

U.  S.  471,  25   L.  ed.  229;    Shell)v  v.  176,      6     L.     ed.      289;      Pevton      v. 

Guy,  11   Wheat.   367,   6   L.   ed.   497;  Stitth,    5    Pet.    485,    8    L.    ed.    203: 

Green  v.  Neal.  6Pet.  291.  8  L.  ed.  402,  Porterfield    v.    Clark,    2    How.    125. 

Barrett  v.  Holmes,  102  U.  S.  655,  26  11     L.     ed.     185:     Miller     v.    Mcln- 

L.  ed.  292;  Balkan  V.  Woodstock  Iron  tvre,    6     Pet.     66,     8     L.     ed.     322; 

Co.  154  U.  S.   189,  38  L.  ed.  957,  14  Boone  v.  Chiles,  10  Pet.  221,  9  L.  ed. 

Sup.   Ct.  Rep.   1014  and  cases  cited.  404;  Leffinswell  v.  Warren,  2  Black, 

Great  W.  T.  Co.  v.  Purdv,  162  U.  S.  603.  17  L.  ed.  261 ;   St.  Paul,  etc.  Co. 

339,  40  L.  ed.  991,  16  Sup.  Ct.  Rep.  v.  Sage,  49  Fed.  320,  1  C.  C.  A.  256; 

89 


§   10   [m]  FEDERAL   JURISDICTION   IN  GENERAL.  [Code  Fed. 

period  prescribed  by  a  State  law  for  presentation  of  claims  against  an  es- 
tate, is  also  a  rule  for  Federal  courts,  which  will  refuse  to  entertain  a 
suit  by  a  nonresident  creditor  against  an  administrator  after  such  period 
has  elapsed; 7  or  to  set  off  an  outlawed  claim  by  the  estate,  in  a  suit  for 
a  legacy. 8 

The  States  may,  under  this  section,  declare  the  period  of  limitation  for 
suits  or  Federal  judgments,  so  long  as  they  do  not  discriminate  against 
them  by  prescribing  a  shorter  period  for  judgments  of  the  local  Federal 
courts  than  for  their  own  domestic  State  judgments. 9  The  period  of  limi- 
tation on  causes  of  action  created  by  Congress  and  enforceable  only  in 
Federal  courts,  is  governed  by  the  local  statute  imless  Congress  other- 
wise prescribe,  and  unless  the  State  deliberately  attempt  to  discriminate 
unreasonably  against  their  enforcement;  lo  as,  for  example,  an  action  for 
infringement  of  copyright; n  or  of  a  patent  12  or  to  enforce  stockholders' 
liability  in  a  national  bank.is 

But  decisions  of  state  courts  respecting  the  time  when  the  statute  be- 
gins to  run,  where  resting  upon  general  principles  and  not  on  any  positive 
statute,  have  been  disregarded.  1*  It  has  been  similarly  held  that  the 
Federal  courts  may  disregard  local  decisions,  not  based  upon  statute, 
declaring  that  the  statute  of  limitations  was  not  suspended  by  the  civil 
war.15  A  State  decision  that  all  actions  to  enforce  a  statutory  liability 
were  specialities,  has  been  disregarded.! 6  The  question  whether  the  Fed- 
eral court  in  equity  will  administer  a  State  statute  of  limitations  pre- 
sents somewhat  different  considerations.  Such  statutes  can  scarcely  be 
said  to  create  substantive  rights  which  the  Federal  court  must  respect,  but 
to  be  concerned  rather  with  the  mode  of  their  enforcement.  In  passing 
statutes  of  limitation  the  States  merely  exercise  their  undoubted  right 
to  determine  the  time  within  which  suits  may  be  brought  in  their  own 
courts,  and  as  Congress  must  possess  the  same  power  over  the  bringing 
of  actions  in  Federal  courts,i7  it  follows  that  by  merely  adopting  the 
State  practice  and  making  the  State  laws  rules  of  decision  in  actions  at 
law  the  Federal  courts  are  left  free  from  the  coiupulsion  of  such  laws  in 

Hoge  V.  Magnes,  85  Fed.  357,  29  C.  i2Campbell  v.  Mayor,  81  Fed.  183, 

C.  A.  564;  Barrett  v.  Holmes.  102  U.  Rich  v.  Ricketts,  7  Blatchf.  231,  Fed. 

S.  G51,  26  L.  ed.  201;  Scott  v.  Mineral  Cas.  No.  11,762.     See  Brickill  v.  Bal- 

Dev.  Co.    130  Fed.   497,   64   C.   C.  A.  timore,  52  Fed.  739. 

659.     But   see  Nelson  v.   Madison,   3  i3Thompson  v.  German  Ins.  Co.  76 

Biss.  253,  Fed.  Cas.  No.  10,110.  Fed.   893;    Butler   v.   Poole,   44   Fed. 

V Security  T.  Co.  v.  Black,  etc.  Bk.  586. 

187  U.  S.  211,  47  L.  ed.  147,  23  Sup.  nMurrav  v.   Chicago,   etc.   Ry.   92 

Ct.  Rep.  52.  Fed.   871,  35  C.   C.   A.   62;    Brigham 

s Wilson  V.  Smith.  117  Fed.  707.  Co.  v.  Gross,  107  Fed.  769. 

sMetcalf  v.  Watertown,  153  U.   S.  isHanger  v.  Abbott,   6  Wall.  534, 

671,  38  L.  ed.  862,  14  Sup.  Ct.  Rep.  18  L.   eu.   941;   Lew  v.   Stewart,   11 

947.     See  Phelps  v.  O'Brien  Co.  2  Dill.  Wall.    244,    20   L.    ed.    86;    Brown   v. 

519,  Fed.  Cas.  No.  11,078.  Hiatt,  1  Dill.  377,  Fed.  Cas.  No.  2,011. 

loCampbell  v.   Haverill,   155  U.    S.  isBrunswick    T.    Co.    v.    National 

614,  39  L.  ed.  282,  15  Sup.  Ct.  Rep.  Bank,  88  Fed.  611. 

219.  iTSee  Amy  v.  Dubuque,   98  U.  S. 

iiBradv  v.  Daly.  175  U.  S.  158,  44  471,  25  L.   ed.  229. 
L.  ed.  113,  20  Sup.  a.  Rep.  06. 

90 


I 


Procedure]  WHAT  LAW  ADMINISTERED.  §   10   [n] 

equity.  But  as  equity  often  follows  the  rule  as  to  limitation  of  actions 
at  law,  there  are  cases  in  which  the  Federal  courts  in  equity  have  followed 
such  local  statutes,  especially  where  constituting  rules  of  property  affect- 
ing local  land  titles  or  where  the  complainant  has  been  guilty  of  great 
laches.is  On  the  other  hand,  as  there  are  circumstances  under  which 
the  application  of  such  a  statute  would  be  inequitable,  as  for  example, 
in  barring  actions  for  concealed  fraud,  other  Federal  equity  cases  have 
refused  to  be  bound  by  local  statutes  of  limitation. 1 9 

[n]  Matters  within  legislative  power  of  Congress — decisions  respecting 
the  law  of  evidence. 
Congress  has  vmdoubted  power  to  prescribe  the  rules  of  evidence  that 
shall  prevail  in  Federal  courts.  In  trials  at  common  law  it  has  declared 
that  the  local  rules  of  evidence  shall  prevail. i  Under  this  enactment 
the  decisions  construing  local  statutes  relating  to  evidence  or  declaring 
the  local  common  law  of  evidence  have  been  deemed  binding  in  common 
law  causes;  2  although  some  cases  have  asserted  a  right  to  disregard 
them. 3  Upon  questions  of  title  especially,  the  Federal  court  should  receive 
the  same  evidence  as  the  State  court. -t  The  rule  of  the  state  courts  as  to 
the  admissibility  of  the  house  journal  to  show  that  a  bill  had  passed,  has 

isElmendorf  v.  Taylor,  10  Wheat.  Rep.  434;  Johnston  v.  Roe,  1  Fed.  695, 

176,  6  L.  ed.  296;  Lewis  v.  Marshall,  1  McCrary  162;  Orendorf  v.  Budlong. 

5  Pet.   470,   8  L.  ed.    195;    Tavlor   v.  12     Fed.     26:     Murrav     v.     Chicago, 

Benham,  5  How.  263,  12  L.  ed.  145;  etc.    R.    R.    62    Fed.   '29.      See    also 

Phillipi  V.  Phillipi,  115  U.  S.  159.  29  Brunswick,    etc.      Co.     v.      National 

L.    ed.   340,    5    Sup.    Ct.   Rep.    1185;  Bank,    88    Fed.    611,    holding    State 

Boone   Co.  v.  Burlington,  etc.  R.   R.  decision  not  binding.     Van  Vleet  v. 

139  U.  S.  692,  35  L.  ed.  319,  11  Sup.  Sledge,   45   Fed.    752,    denying   relief 

Ct.  Rep.  687;  Lansdale  v.  Smith,  106  for  laches. 

U.  S.  392,  27  L.  ed.  219,  1   Sup.  Ct.  iSee  post,  §   12. 

Rep.    350;    Harpending    v.    Reformed  2 Connecticut,  etc.  Ins.  Co.  v.  Union 

Church,  16  Pet.  493,  10  L.  ed.   1043;  etc.  Co.  112  U.  S.  255,  28  L.  ed.  708, 

Speidel  v.  Henrici,  120  U.  S.  387,  30  5   Sup.  Ct.   Rep.   119;    Remington  v. 

L.    ed.    720,    7    Sup.    Ct.    Rep.    612;  Linthicum,  14  Pet.  91,  10  L.  ed.  364; 

Amory  v.  Lawrence,  3  Cliff.  531,  Fed.  Bucher  v.   Cheshire  R.  R.   125  U.   S. 

Cas.    No.    336;    Higgins,   etc.    Co.    v.  583,  31  L.  ed.   795,   8   Sup.  Ct.   Rep. 

Snow,  113  Fed.  433.  51  C.  C.  A.  267;  974;    Hinds  v.   Keith,   57   Fed.   10,   6 

United  States  v.   Beebe,  17  Fed.  40;  C.   C.  A.   231;    Stewart  v.  Morris,  89 

4  McCrary  12;  Rice  v.  Martin,  8  Fed.  Fed.  290,  32  C.  C.  A.  203;   Union  P. 

480,    7    Sawy.    337 ;    Norris   v.    Hag-  Ry.  v.  Reed,  SO  Fed.  239,  25  C.  C.  A. 

gin,     28      Fed.      278;      Robinson     v.  389;    Lonergan   v.   Mississippi    Co.    5 

Hook,   4   Mason,    151,    Fed.    Cas.    No.  Fed.    778,   2   McCrary   451;    Albro   v. 

11,956;    Scott   v.    Evans.    1    McLean,  Manhattan,    etc.    In.s.    Co.    119    Fed. 

489,  Fed.  Cas.  No.  12,529;  Fussell  v.  629;    Belding    v.    Hebard,    103    Fed. 

Hughes.  8  Fed.  396;  Cockrill  v.  But-  532,    43    C.    C.    A.    296;     Parker    v. 

ler,  78   Fed.  686;   Tavlor  v.   Holmes,  Moore,  111  Fed.  470. 

14  Fed.  511;  Miles  v.'Vivian,  79  Fed.  sSee  Union  Pac.  Ry.  v.  Yates,  79 

8'53,  25  C.  C.  A.  208;   See  cases  col-  Fed.   589,  25   C.  C.   A.   103;   Shea  v. 

Ifictcd    Book    II.,    U.    S.    Notes,    p.  Leisv.  85  Fed.  245. 

401ff.  4Hinde  v.  Vattier,  5  Pet.  401,  8  L. 

isKirbj^  v.  Lake  Shore,  etc.  Ry.  120  ed.  170;  Remington  v.  Linthicum,  14 

U.  S.  138,  30  L.  ed.  573,  7  Sup.  Ct.  Pet.  91,  10  L.  ed.  364. 

91 


§   10   [o] 


FEDERAL  JURISDICTION  IN  GENERAL. 


[Code  Fed^ 


been  followed. 5  The  local  statute  as  to  privileged  communications  has 
been  followed  and  applied; 6  so  also  the  local  rule  as  to  expert  testimony 
in  forgery  cases. T  In  proceedings  before  the  Court  of  Claims  it  has  been 
held  that  in  the  absence  of  provision  by  Congress,  common  law  rules  shall 
be  applied.  «  But  the  local  law  does  not  apply  where  in  conflict  with  an 
act  of  Congress  respecting  the  admission  of  evidence  in  Federal  courts.9 
Hence  where  Congress  has  provided  the  mode  of  proof  in  common  law 
trials,  laws  conflicting  therewith  as  respects  the  taking  of  depositionsio 
or  examination  of  witnesses  or  parties  in  advance  of  trialu  will  not  be 
followed. 

[o]     Matters  within  legislative  power  of  Congress — exemption  laws. 

Under  the  statute  making  State  laws  the  rule  of  decision  in  Federal 
courts,  local  homestead  and  exemption  laws  will  be  followed  by  the  Fed- 
eral courts  in  the  absence  of  legislation  by  Congress  prescribing  different 
rules  respecting  exemption  of  property  from  execution  under  Federal  judg- 
ments.i^  The  question  whether  the  interest  of  a  cestui  que  trust,  or  other 
equitable  estate,  is  liable  for  debts  of  owner  or  beneficiary  is  one  of  local 
law.  IB 

[p]     Other  matters  within  national  legislative  powers. 

Some  of  the  cases  asserting  the  existence  of  a  general  commercial  law 
which  Federal  courts  may  administer  in  disregard  of  the  local  jurispru- 
dence, are  concerned  with  matters  which  might  very  well  be  legislated 
upon  by  Congress.i^  The  admiralty  law  and  the  Federal  criminal  law 
also  clearly  present  matters  properly  within  the  law   making  powers  of 


BComstock  V.  Tracey,  46  Fed.  170,  .35  L.  ed.  739,  11  Sup.  Ct.  Rep.  1003; 

Chicago,  etc.  Ry.  v.  Smyth,  103  Fed.  Pierce  v.  Union  P.  Ky.   Co.  47   Fed. 

376.  709;    Tabor  v.   Indianapolis,  etc.  Co. 

6 Connecticut,  etc.  Co.  v.  Union,  etc.  66  Fed.  423;  Despeaux  v.  Pennsylva- 

Co.   112  U.   S.  254,  28  L.   ed.   708;   5  nia  R.  R.  81  Fed.  897;  National"  etc. 

Sup.  Ct.  Rep.  119;  Dreier  v.  Ins.  Co.  Co.  v.  Leland,  94  Fed.  503.  37  C.  C. 

24  Fed.  072;  Butler  v.  Fayerweather,  A.  372. 

91  Fed.  460,  33  C.  C.  A.  625;  Mutual        i^Nichols  v.  Levy,  5  Wall.  433,  18 

Ben.  etc.  Ins.  Co.  v.  Robison,  58  Fed.  L.  ed.  596;  Fink  v.  O'Neil,  106  U.  S. 

731,  7  C.  C.  A.  444.  22  L.R.A.  331.  279,   27   L.  ed.   196,   1    Sup.  Ct.  Rep. 

7Richardson  v.  Green,  61  Fed.  432,  325;    Spindle    v.    Shreve.    Ill    U.    S. 

9  C.  C.  A.  565.  542,   28  L.   ed.  512,  4  Sup.  Ct.  Rep. 

sMoore  v.  United  States,  91  U.  S.  522;    Green    v.    Root,    62    Fed.    194; 

270.  23  L.  ed.  346.  First  Nat.  Bank  v.  uiass,  79  Fed.  708, 

9Whitford  v.  Clark  Co.   119  U.   S.  25  C.  C.  A.  151;  Thompson  v.  McCon- 

525,   30   L.   ed.   500.  7   Sup.   Ct.   Rep.  nell,   107   Fed.   30,  46  C.   C.   A.    124; 

306;    Ex  parte   Fisk,   113   U.   S.   719,  Manufacturers  etc.   Bank  v.  Bayless, 

28  L.  ed.  1117,  5  Sup.  Ct.  Rep.  724.  16  Fed.   Cas.  664;   Mason  v.  Beebee, 

lOTurner  v.  Shackman.  27  Fed.  184,  44  Fed.  558. 
Shellabarger  v.  Oliver,   64  Fed.  307;        isPotter  v.  Couch,   141   U.  S.  317, 

United  States  v.  Fifty  Boxes,  92  Fed.  35  L.  ed.  732,  11  Sup.  Ct.  Rep.  1011; 

603.  In  re  Bandouiner,  96  Fed.  541 ;  Ray- 

iiEx  parte  Fisk.  113  U.  S.  719,  28  nolds  v.  Hanna,  55  Fed.  795. 
L.  ed.  1117,  5  Sup.  Ct.  Rep.  724;  Union        i^See  infra,  note,  [tt] 
Pac.  R.  R.  V.  Botsford,  141  U.  S.  257, 

92 


Procedure]  WHAT    LAW    ADMINISTERED.  §   10    [q] 

the  nation.is  it  is  probable  also  that  the  rules  of  private  international 
law,  or  the  principles  underlying  the  so  called  doctrine  of  conflict  of  laws 
might  be  prescribed  for  the  Federal  courts  by  Congress.  Or  if  not  within 
the  power  of  Congress  thej'^  may  belong  to  that  class  of  cases  of  which 
suits  by  States  in  the  Supreme  Court  are  an  illustration,  in  which  ques- 
tions of  international  law  are  or  may  be  involved,  as  to  which  no  legisla- 
tive body  would  have  power  to  declare  the  rule  of  decision,  and  in  which 
the  courts  must  have  recourse  to  accepted  principles  of  the  law  of  na- 
tions.19 

It  is  obvious  that  there  are  many  matters  of  national  concern  outside 
the  law  making  power  of  the  States,  as  to  which  Congress  has  not  legis- 
lated or  as  to  which  its  legislation  is  not  full  and  exhaustive.  There  are 
yet  other  matters  as  to  which  even  Congress  has  no  power  to  legislate. 
In  such  cases  the  Federal  courts  may  be  called  upon  to  administer  the 
law  mantime,20  or  public  or  private  international  law,i  or  to  affirm  prin- 
•ciples  of  municipal  law  which  may,  aptly  enough,  be  termed  the  common 
law  of  the  United  States.2 

[q]     Questions  of  conflict  of  laws. 

In  cases  involving  what  is  often  termed  the  doctrine  of  conflict  of  laws, 
it  would  seem  that  the  Federal  courts  may  be  at  liberty  to  ignore  the 
local  rule.  As  for  instance  in  determining  whether  the  law  of  the  forum 
or  of  the  place  of  contract  is  to  be  applied  in  construing  and  testing  con- 
tracts involving  intangible  rights  and  not  fixed  and  tangible  property;  or 
in  determining  whether  by  comity,  a  right  of  action  given  by  another 
sovereignty  shall  be  enforced.  Over  such  matters  of  controversy  the 
State  has  not  plenary  legislative  power,  and  can  do  no  more  than  declare 
the  principle  that  shall  control  in  its  own  courts.  The  question  what  law 
shall  be  applied  or  whether  comity  requires  the  recognition  of  a  right 
given  by  foreign  laws,  ia  one  of  private  international  law.  In  admiralty 
cases  and  in  suits  by  States  in  the  Supreme  Court,  the  Federal  courts  are 
often  called  upon  to  administer  a  species  of  international  law,*  and  there 
is  a  peculiar  appropriateness  in  conceding  to  them  an  independent  judg- 
ment in  such  cases.  The  Federal  courts  have  in  numerous  cases  laid  down 
principles  for  determining  the  law  that  shall  govern  the  obligation,  va- 
lidity, or  construction  of  a  contract  without  referring  to  or  assuming  to 
be  bound  by  the  doctrines  of  the  State  courts  on  the  subject. 5  They  have 
held  the  contract  of  a  Federal  oflficer's  bondsmen  to  be  governed  by  com- 
mon law  rules  though  the  officer  reside  in  Louisiana  and  the  bond  be  sued 

isSee  post,  §  11.  Boyle  v.   Zacharie,   6  Pet.   644.   8   L. 

i9See  post,  §  11.  note,  [f]  ed.".527;    Andrews   v.   Tond,    13   Pet. 

20See  post,  §  11,  note,  [a]  78,  10  L.  ed.  61;  Bank  of  Augusta  v. 

iSee   infra,   note;    [q]    post,    §    11,  Earle,  13  Pet.  580.  10  L.  ed.  274;  Os- 

note.m  born  v.  Nicholson.  13  Wall.  056,  20  L. 

2See  post,  §  13.  ed.    680;    Railroad    v.    Pennsvlvania. 

<See  post,  §  11.  15  Wall.  326,  21  T..  ed.  179;  Liverpool 

sRobinson    v.   Campboll,   3    Wheat.  Steam  Co.  v.   Phenix  Ins.  Co.  12fl  U. 

•219,  4  L.  ed.  372;  De  Wolf  v.  John-  S.  447,  32  L.  ed.  788,  9  Sup.  Ct.  Rep. 

son,   10   Wheat.    383,   6   L.   ed.    343;  469. 

93 


§   10   [r]  FEDERAL   JURISDICTION   IN   GENERAL.  [Code  Fed. 

upon  in  the  Federal  court  in  that  State,  regardless  of  the  doctrines  of 
Louisiana  courts  on  the  sul)ject  of  conflict  of  laws. 6  The  precise  question 
whether  Federal  courts  will  deem  themselves  to  be  bound  by  the  rulings 
of  the  State  courts  declaring  when  the  lex  loci  and  when  the  lex  fori 
governs,  seems  to  have  been  seldom  raised.  At  circuit  some  cases  have 
folloAved  the  doctrine  of  the  local  courts.'?  Some  of  the  cases  asserting  a 
right  to  disregard  the  local  rule  in  deciding  questions  under  the  law  mer- 
chant 8  might  very  logically  be  justified  under  this  principle.  Thus  the  lead- 
ing case  on  that  doctrines  involved  an  interstate  bill  of  exchange.  It  might 
very  properly  be  questioned  whether  the  parties  were  bound  by  the  law  of 
the  forum  or  the  law  with  reference  to  which  they  might  be  deemed  to  have 
contracted.  If  the  latter,  then  a  local  rule  at  variance  with  generally 
accepted  principles  of  the  law  merchant  might  be  disregarded — not  how- 
ever, upon  the  theory  of  the  existence  of  a  national  land  law  on  the  sub- 
ject, but  on  the  theory  that  the  law  of  the  place  of  contract  governed  and 
presumably  accorded  with  generally  accepted  rules. 

Upon  the  question  of  comity  involved  in  the  enforcement  of  a  right  of 
action  for  tort  given  by  the  law  of  the  place  where  the  tort  was  com- 
mitted, a  right  to  disregard  the  local  rule  has  bee.;  asserted. lo  The  ques- 
tion has  been  declared  to  be  one  of  general  law,ii  although  the  Federal 
court  will  be  influenced  by  the  rule  established  by  the  local  decisions  and 
will  probably  not  enforce  a  right  created  by  foreign  law  contrarj'  to  the 
established  public  policy  of  the  State  wherein  the  court  is  sitting. 12  in  de- 
ciding whether  a  right  or  liability  founded  upon  local  law  is  penal  within 
the  principle  that  courts  elsewhere  will  not  enforce  a  local  penal  statute, 
the  Federal  courts  apply  accepted  principles  of  international  law  rather 
than  of  local  jurisprudence,!  3  and  are  not  controlled  by  a  decision  of  the 
State  giving  such  right,  that  the  statute  is  or  is  not  of  a  penal  character.14 

[r]     Matters  of  general  jurisprudence  and  commercial  law. 

The  Federal  courts  assert  a  right  in  certain  cases,  to  disregard  the  local 
decisions  in  the  State  where  they  are  sitting  and  administer  general  prin- 
ciples of  jurisprudence  or  of  commercial  law.  These  cases  do  not  merely 
reject  the  interpretation  of  the  local  law  by  the  State  courts,  but  deny 

6C0X  V.  United  States,  6  Pet.  203,  loGreaves    v.    iSTeal,    57    Fed.    816; 

8    L.    ed.    359;     Duncan    v.    United  Evey  v.  Mexican  C.  Ry.  81  Fed.  309. 

States,  7  Pet.  435,  8  L.  ed.  739.  26  C.  C.  A.  407,  38  L.R.A.  387. 

7 Parker  v.  Moore,  lio  Fed.  799,  53  n Texas  &  P.  Ry.  v.  Cox,   145  U. 

C.  C.  A.   369;    McClain   v.  Provident  S.    605.    36   L.   ed.    829,    12   Sup.    Ct. 

Assur.  Soc.  110  Fed.  SO.  49  C.  C.  A.  Rep.   908,  909. 

31.     See,  United,   etc.  Co.  v.   Harris,  i2See  Walworth  v.  Harris.  129  U. 

113  Fed.    27;    and    Manship    v.    New  S.  364.  32  L.  ed.  712,  9  Sup.  Ct.  Rep. 

South  etc.   Co.  110  Fed.  845:   testing  340;    Chicaoo,   etc.    R.    R.    v.    Sturm, 

the   validity   of   a  mortgage   by   the  174  U.  S.  718,  43  L.  ed.  1147,  19  Sup. 

law  of  the  place  where  contract  was  Ct.  Rep.  800. 

made  and  not  of  the  place  where  the  1 3 Huntington  v.  Attrill,  146  U.  S. 

land  lay.  657,  36  L.  ed.  1129,  13  Sup.  Ct.  Rep. 

sSee  infra,  note,  [s]  224. 

sSwift  V.  Tyson,  16  Pet.  18,  10  L.  i^Marshall  v.  Wabash  R.  R.  46  Fed. 

ed.  865.  271. 

94 


Procedure]  WHAT    LAW    ADMINISTERED.  §   10   [i) 

that  the  local  law  is  the  proper  rule  for  their  decision.is  It  is  difficult  to 
find  a  rational  foundation  for  this  doctrine  so  far  as  it  applies  to  matter.s 
of  controversy  not  comnaitted  to  the  legislative  control  of  Congress.  Fed- 
eral powers  are  limited  to  those  expressly  granted  and  their  necessary  in- 
cidents. It  cannot  be  that  the  national  courts  have  any  more  power  than 
has  Congress  to  ignore  those  limitations  and  assume  the  existence  of  a 
national  law  as  to  other  than  national  matters,i6  and  which  Congress 
would  have  no  power  to  ordain.  If  they  may  declare  national  rules  of 
law  to  govern  the  conduct  of  the  citizen  in  one  species  of  cases  outside  the 
law  making  powers  of  the  nation's  legislature,  why  not  in  all  cases.  It 
is  plain  that  the  Federal  courts  cannot  assume  a  jurisdiction  which  Con- 
gress would  have  no  power  to  confer.  How  then  can  they  assume  to  ad- 
minister a  national  law  which  Congress  would  have  no  power  to  enact. 
Their  obligation  to  administer  and  apply  the  local  law  rests  upon  more 
fimdamental  grounds  than  are  ofl'ered  by  considerations  of  propriety  or 
even  the  mandate  of  Congress.  Indeed  this  doctrine  of  the  Federal  courts 
would  seem  essentially  an  exercise  of  tyranical  power  since  they  thereby 
set  up  rules  of  law  which  in  the  nature  of  things  cannot  spring  from  any 
authorized  law  making  agency  of  the  people,  either  State  or  Federal.  It 
is  true  that  great  names  may  be  cited  in  favor  of  the  doctrine  and  that  it 
has  been  again  and  again  declared;  yet  as  stated  by  Mr.  Justice  Field, 
"there  stands,  as  a  perpetual  protest  against  its  repetition,  the  constitution 
of  the  United  States,  which  recognizes  and  preserves  the  autonomy  and  in- 
dependence of  the  States."!"  It  is  true  that  jurisdiction  of  controversies 
between  citizens  of  different  States  was  conferred  on  Federal  courts  to  se- 
cure to  alien  or  nonresident  suitors  an  unbiased  tribunal.  Yet  the  ob- 
ject was  to  secure  uniformity  and  fairness  in  the  administration  of  State 
laws,  and  not  to  introduce  conflicting  and  divergent  rules  of  decision  to 
the  embarrassment  of  litigants  and  the  destruction  of  that  certainty  which 
it  is  one  of  the  prime  purposes  of  all  codes  of  law  to  promote  and  insure. 
Perhaps  the  earliest  assertion  of  the  doctrine  is  by  Mr.  Justice  Story.  The 
act  of  Congress  making  State  laws  the  rules  of  decision,  he  declared,  should 
be  limited  to  laws  strictly  local  and  to  rights  and  titles  to  things  having 
a  permanent  locality.     It  does  not,  he  said,  extend  to  contracts  and  other 


isHough  V.  Railwav.  100  U.  S.  220,  L.  Co.  v.  Blanks,  133  Fed.  479,  66  C. 

25  L.  ed.   612;    Myrick   v.   Michigan,  C.  A.  353. 

etc.  R.  R.   107   U.   S.    109,  27   L.  ed.        isin   admiralty   causes   the   courts 

325,  1   Sup.  Ct.  Rey.,  425;   Baltimore,  assume   the   existence   of   a   national 

etc.  R.  R.  V.  Baugh,  149  U.  S.  370,  37  or    rather    international    system    of 

L.  ed.  772,  13  Sup.  Ct.  Rep.  914;  01-  law,    but   this    assumption    is    found 

cott    V.    Supervisors,    IG    Wall.    (i90,  also  in  the  Constitution  itself.    ]Moro- 

21  L.  ed.  382;  Boyce  v.  Tabb,  18  Wall,  over  Congress  has  power  to  enact  ad- 

548,  21  L.  ed.  757;  Township  of  Pine  miraltv  rules.     See  post,  §   11. 
Grove   v.    Talcott.    19   Wall.   678,   22        iTBaltimore  &  0.  R.  Co.  v.  Bauffh. 

L.    ed.    227;    Washburn,    etc.    Co.    v.  149  U.  S.  368,  37  L.  ed.  772,  13  Sup. 

Reliance,  etc.   Ins.  Co.  179  U.  S.  15,  Ct.  Rep.  914,  927.     See  also  opinion 

45   L.   ed.    58,    21    Sup.   Ct.    Rep.    1;  of  Caldwell,  J.  in  Hartford  F.  I.  Co. 

Swift  V.  Tvson,  16  Pet.  18.  10  L.  ed.  v.   Chicago,   etc.   R.   R.   70   Fed.   208, 

8(15;     Hollingsworth     v.     Parish,     4  17  C.  C.  A.  62,  30  L.R.A.  193. 
Woods.  284,  17  Fed.  112;  Three  States 

95 


S    10    Isj  FEDEKAL  JURISDICTION   IN   GENERAL.  [Code   Fed. 

instruments  of  a  commercial  nature. is  The  existence  of  this  legislation 
by  Congress  seems  to  have  forestalled  deeper  investigation  of  the  question 
either  by  that  eminent  jurist  or  by  his  successors,  a  consequence  that 
cannot  but  be  deplored.  In  that  case  which  arose  in  New  York,  he  re 
fused  to  apply  the  rule  of  the  New  York  courts  that  one  holding  com- 
mercial paper  as  collateral  security  for  a  pre-existing  debt  was  not  a 
bona  fide  holdtr  so  as  to  take  free  from  prior  equities.19 

[sj  —  decisions  respecting  law  merchant,  municipal  bonds,  insurance  poli- 
cies, and  corporate  stock. 

The  influence  of  Mr.  Justice  Story's  decision  in  the  leading  case  has 
been  particularly  marked  in  controversies  involving  the  law  of  negotiable 
instruments.  Questions  arising  under  the  law  merchant  have  since  very  gen- 
erally been  declared  to  be  matters  of  general  jurisprudence  in  which  local 
decisions  might  be  disregarded;!  or  at  least  to  be  cases  in  which  the  Fed- 
eral courts  feel  less  bound  than  in  others  by  State  decisions.  2  Commercial 
law,  it  is  said,  is  not  peculiar  to  one  State  or  dependent  upon  local  au- 
thority, but  arises  out  of  the  usages  of  the  commercial  world. ^  A  ques 
tion  as  to  the  power  of  a  factor  to  pledge  property  in  his  possession  has 
been  declared  to  be  controlled  by  the  law  merchant  \mder  the  principle  laid 
down  by  Judge  Story. •!  But  it  has  been  held  that  the  question  whether 
the  contract  rate  of  interest  governs  after  maturity  of  commercial  paper,  is 
one  of  local  law.  5 

In  the  case  of  bonds  it  is  held  that  the  local  law  governs  as  to  whether 
interest  shall  be  payable  on  coupons  after  maturity. 6  But  it  has  been 
frequently  declared  that  general  principles  of  commercial  law  and  not  the 
local  laws  controlled  at  least  some  of  the  questions  involved  in  determin- 
ing the  validity'  of  municipal  bonds.7 

isSwift  v.   Tvson,   16   Pet.   18,   19,  Heidelbaeh,  2  Low.  530,  Fed.  Cas.  No. 

10  L.  ed.  865.     See  reference  to  this  6,322;   Smith  v.  Babcock,  2  Wood.  & 

case,  supra,  note,    [q]  M.  246,  Fed.  Cas.   No.    13.009;   Essex 

isSee  reference  to  this  case,  supra,  Co.    Bank    v.    Bank    of   Montreal,    7 

note,    [q]  Biss.  190,  Fed.  Cas.  No.  4,532:  Bank 

iSwift  V.  Tyson,  16  Bet.  18,  10  L.  of  Saginaw  v.  Title  &  T.  Co.  105  FeA. 

ed.  865;  Miller' v.  Austin,  13  How.  228,  491. 

14  L.  ed.  119;  Gates  v.  National  Bank,  2Smith  v.  Alabama,  124  U.  S.  47S, 

100  U.  S.  246.  25  L.  ed.  580;  Watson  31  L.  ed.  508,  8  Sup.  Ct.  Rep.  564. 

V.    Tarpley,    18   How.   520,    15   L.   ed.  SRailroad    Co.    v.    National    Bank, 

511;  i-nipps  V.  Harding,  70  Fed.  471,  102  U.  S.  31,  32,  26  L.  ed.  01. 

17  C.  C.  A.  203,  30  L.R.A.  515;  First  ''Bragg  v.  Mever,  McAll.  411,  Fed. 

Nat.  Bank  v.  Lock.  etc.  Co.  24  Fed.  Cas.  No.  1801. 

226;  Railroad  Co.  v.  National  Bank,  sRoIden  v.  Trust  Co.  100  U.  S.  74. 

102  U.  S.  29,  26  L.  ed.  67;  Edgefield  25  L.  ed.  567;  Ohio  v.  Frank,  103  U. 

V.   Farmers,   etc.    Co.   52   Fed.    103,   2  S.  698,  26  L.  ed.  531;  Massachusetts. 

C.  C.  A.  637,  18  L.R.A.  203;   Jewett  etc.   Assn.   v.   Miles,   137   U.   S.    691. 

V.    Hone.    1    Woods,    532,    Fed.    Cas.  34  L.  ed.  835,  11  Sup.  Ct.  Rep.  235. 

No.    7,311;    United    States    Bank    v.  eUnitea  States  v.  North  Carnlinii. 

Lvman,    1    Blatchf.    .307,    Fed.    Cas.  136   L.  S.  218,  34  L.  ed.  339,  10  Sup. 

No.    924:    Boyce    v.    Babb,    18    Wall.  Ct.    Rep.    923;    Bolles   v.    Ambuv.    -J.) 

548,     21     L.     ed.     757;     Van     Vleet  Fed.  169. 

V.    Sledge,    45    Fed.    749;    Ex    parte  "Supervisors    v.    Schenck,   5   W'l-J'. 

96 


i 


rrocedure]  WHAT    LAW    ADMINISTERED.  §   10   [t] 

The  same  principles  have  been  applied  in  the  construction  of  insurance 
policies,  and  local  rules  of  construction  and  decision  have  been  disregard- 
ed; 8  though  it  is  elsewhere  said  that  the  statutes  and  established  public 
policy  and  common  law  of  a  State  are  controlling  even  in  such  cases.9 
Elsewhere  question  when  corporate  stock  shall  be  deemed  fully  paid  has 
been  declared  to  be  one  of  general  law;io  though  most  questions  pertain- 
ing to  corporate  rights,  powers  and  liabilities  are  governed  by  the  laws 
of  the  respective  States. n 

[t]  —  decisions  respecting  law  of  negligence  and  of  carriers'  liability. 

Many  questions  respecting  common  carriers  have  been  Iield  to  involve 
principles  of  general  commercial  law  on  which  local  decisions  are  not 
authority.i3  As  for  instance  questions  respecting  their  general  liabil- 
ity; i*  questions  as  to  the  nature  and  construction  of  their  contract  of 
carriage;  15  questions  of  policy  involved  in  permitting  them  to  stipu- 
late against  liability  for  negligenceie  the  extent  of  their  liability 
to  employees  for  injuries  arising  from  fault  of  the  master  or  negligence 
of  a   fellow   sen^ant;!''     of    their    liability    for    the   torts  of    their    em- 

785,  18  L.  ed.  560;  Taylor  v.  Ypsilanti,  Ins.  Co.  129  U.  S.  443,  32  L.  ed.  788, 

105  U.  S.  70,  26  L.  ed.  1011;  Olcott  v.  9  Sup.  Ct.  Rep.  469. 

Supervisors.  16  Wall.  690:  21  L.  ed.        i^Ibid. 

382;  Township  of  Pine  Groves  v.  Tal-        isMyrick  v.  Mich.  Cent.  R.  R.  107 

Cott,   19   Wall.   678,   22   L.   ed.   227;  U.  S.  109,  27  L.  ed.  325,   1   Sup.  Ct. 

Township  of  New  Buffalo  v.  Cambria  Rep.    425;     Pennsylvania    R.    R.    v. 

Iron  Co.  105  U.  S.  73.  26  L.  ed.  1024;  Jones,  155  U.  S.   339,  39  L.  ed.   178, 

Pana  v.  Bowler.  107  U.  S.  541,  27  L.  15  Sup.  Ct.  Rep.  138. 

ed.  424,  2  Sup.  Ct.  Rep.  704 :  Pleasant        leRailroad    Co.    v.    Lockwood.    17 

Twp.  V.  Aetna  Ins.  Co.  138  U.  S.  73,  Wall.    368,    21   L.    ed.   627;    Eells    v. 

34  L.  ed.  864,  11  Sup.  Ct.  Rep.  215:  St.  Louis,  etc.  Ry.  52  Fed.  905.     Bnt 

Folsom  v.  Township  Xinetv-six,  159  see  Hartford,  F.  L  Co.  v.  Chicago,  etc. 

U.  S.  625,  40  L.  ed.  278,  16  Sup.  Ct.  Ry.  175  U.  S.  100,  108,  44  L.  ed.  84, 

Rep.    174;    Independent   School    Dist.  20  Sup.  Ct.  Rep.  33. 

V.  Rew,  111  Fed.  1.  49  C.  C.  A.  198,        i7Felton  v.   Bullard,  94   Fed.   784. 

55   L.R.A.   .364.  37  C.  C.  A.  1;   Elliott  v.  Felton.  119 

^Carpenter  v.  Providence,  etc.  Ins.  Fed.  270,  56  C.  C.  A.  74:  New  York, 

Co.  16  Pet.  511,  10  L.  ed.  1044;  Wash-  etc.  R.  R.  v.  O'Leary,  93  Fed.  740,  35 

bum.  etc.   Co.   v.   Reliance,   etc.   Ins.  C.  C  A.  562 :  Murray  v.  Chicago,  etc. 

Co.  179  U.  S.  15,  45  L  ed.  58.  21  Sup,  R,  R.  92  Fed.   871,  '35   C.  C.   A.  62: 

Ct.  Rep.  1 ;  Sias  v.  Roger,  etc.  Ins.  Co.  Wright  v.  Southern  Ry.  80  Fed.  261 : 

8  Fed.  188;   Sheerer  v.  Life  Ins.  Co.  McPeck   v.   Central   &  Vt.   R.   R.   79 

20  Fefl.  889;  Manhattan.  L.  I.  Co.  v.  Fed.    596,    25    C.    C.    A.    110;    Hough 

Broughton,   109  U.  S.   126,  27  L.  ed,  v.    Railroad   Co.    100   U.    S.   226.    25 

880,  3  Sup.  Ct.  Rep.  101;  Henninir  y.  L.    ed.    612;    Baltimore,    etc.    Ry.    v. 

United  States  Ins.  Co.  2  Dill.  36.  Fed.  Baugh,    149    U.    S.    370,    37    L.    ed. 

Cas.  Xo.  6,366;  Spinks  y.  Mutual,  etc.  772,     13    Sup.   Ct.  Rep.    914;      Gard- 

Assn.    137    Fed.    171.     But   see    Polk  ner   v.     Michigan,     150    U.     S.     358, 

V.  Mut.  L.  F.,  etc.  Assn.  137  Fed.  273.  37    L.    ed.    1107,    14    Sup.    Ct.    Rep. 

sMcClain  v.  Provident,  etc.  Ins,  Co.  140:   Ilarley  v.  Louisville,  etc.  R.  R. 

110  Fed.  80,  49  C.  C.  A.  31.  57  Fed.  146;   Northern  Pac.  R.  R.  v. 

lOClark  V.  Bever.  139  V.  S.  117,  35  Hambly,    154   U.    S.    3G0,    38    L.    ed. 

L.  ed.  97,  11  Sup.  Ct.  Rep.  475.  1009,  14  Sup.  Ct.  Rep.  9S3;  Borgman 

iiSee  supra,  note,  [e]  v.   Omaha,   etc.   R.   R.   41    Fed.  671; 

isLiverpool   Steam   Co.   v.   Phenix,  Howard  v,  Delaware  &  H.  Canal  Co. 
Fed,  Proc— 7.                                  97 


§   10   [tt]  FEDERAL   JURISDICTION    IN   GENERAL.  [Code  Fed. 

ployecs;i8  as  also  the  question  as  to  what  constitutes  negligence  by  a  car- 
rier. 1 9  And  in  other  cases  than  those  involving  common  carriers,  the  law 
of  negligence  has  been  declared  to  involve  principles  of  general  commercial 
law  as  to  which  State  decisions  were  not  controlling; 20  as,  for  instance, 
whether  a  parent's  negligence  should  be  imputed  to  a  child. 1  So,  the  ques- 
tion of  the  validity  of  a  stipulation  against  liability  for  negligence  by  a 
telegraph  company  has  been  declared  one  of  general  commercial  law. 2 

[tt]  —  decisions  respecting  contracts  affecting  interstate  commerce  or  of  a 
maritime  nature. 
Some  of  the  foregoing  authorities  declaring  a  right  to  administer  gen- 
eral principles  of  commercial  law,  plainly  involve  matters  of  controversy 
within  the  law  making  power  of  the  nation  and  in  so  far  as  they  refuse 
to  be  bound  by  local  decisions,  are  not  open  to  criticism.  Such,  for  in- 
stance, are  the  cases  respecting  contracts  of  marine  insurance,*  or  for 
carriage  by  sea,5  or  for  an  interstate  carriage  of  freight  or  passengers; 6 
decisions  respecting  liability  on  general  average; 7  and  other  matters  within 
the  supervision  of  courts  of  admiralty  ;S  and  questions  as  to  the  naviga- 
bility of  a  stream.9 

[uj  —  right  to  administer  general  commercial  law  in  disregard  of  local 
statutes. 
Most  of  the  cases  asserting  the  doctrine  of  a  general  commercial  law, 
assume  to  administer  it  only  when  there  is  no  local  statute  or  usage,  as 
distinguished  from  local  decisions.  This  is  apparently  because  the  act 
of  Congress  makes  State  "laws"  rules  of  decision  and  not  merely  State  de- 
cisions.ii  The  law  of  liability  of  master  to  servant  for  injuries,  is  only 
declared  to  be  a  matter  of  general  law  in  the  absence  of  statute;  12  sim- 

40  Fed.  197,  6  L.R.A.  75 ;   Newport,  burn,  etc.  Co.  v.  Reliance,  etc  Ins.  Co. 

etc.   R.   R.  V.   Howe,   52   Fed.   366,   3  179   U.   S.   15,  45  L.  ed.   58,  21   Sup. 

C.   C.  A.   121;   Miller  v.  B.  &  O.  R.  Ct.  Rep.  1. 

R.  17  Fed.  Cas.  305.  ^Liverpool,  etc.  Co.  v.  Phenix  Ins. 

isLake  Shore,  etc.  Ry.  v.  Prentice,  Co.   129   U.  S.   443,  32  L.   ed.   788,  9 

147  U.  S.  106,  37  L.  ed.  101,  13  Sup.  Sup.  Ct.  Rep.  469;   The  Kensington, 

Ct.  Rep.  262.         .  .  183  U.  S.  263,  46  L.  ed.  190,  22  Sup. 

isLightcap  v.  Phila.  T.  Co.  60  Fed.  Ct.  Rep.  102. 

215.  sMvrick   v.  Michigan,   Cent.   R.  R. 

2  0Griffin  v.  Overman,  etc.  Co.  61  Co.  107  U.  S.  102,  27  L.  ed.  325,  1 
Fed.  572,  9  C.  C.  A.  542;  Mason  v.  Sup.  Ct.  Rep.  425;  Murray  v.  Chicago, 
Edison  Ma<'h.  Wks.  28  Fed.  228;  etc..  R.  R.  62  Fed.  30;  Swift  v.  Rail- 
Johnston  v.  Western  U.  T.  Co.  33  Fed.  road,  58  Fed.  858. 
364;  Western  U.  T.  Co.  v.  Wood,  57  'Mutual,  etc.  Ins.  Co.  v.  Brig 
Fed.  478,  6  C.  C.  A.  432,  21  L.R.A.  Ceorge,  Olcott,  101,  Fed.  Cas.  No. 
706.  9,981. 

1  Berry  v.  Lake.  etc.  R.  R.  70  Fed.  sThe  IMontana,  22  Blatchf.  395,  22 

680.  Fed.  727;  The  J.  E.  Rumbell,  148  U. 

2Johnston  v.  Western  U.  T.  Co.  33  S.  17,  37  L.  ed.  349,  13  Sup.  Ct.  Rep. 

Fed.  364,  Western   o.  T.  Co.  v.  Cook,  502:   The  Olenmavis.  69  Fed.  477. 

(il  Fed.  628,  9  C.  C.  A.  680.  t'Chisliolm  v.  Caines,  67  Fed.  294. 

■iGloucester  Ins.  Co.  v.  Younger,  2  uSee  post,  §    12. 

Curt.  338,  Fed.  Cas.  No.  5,487;  Wash-  i2See  cases  supra. 

98 


rroredure]  WHAT    LAW    ADMINISTEUED  §    10    [v] 

ilarly  the  question  of  a  carrier's  liability  under  its  contract. is  Hence 
where  the  State  law  dellnes  an  employer's  or  carrier's  liability,  the  Fed- 
eral court  will  follow  itji*  so  they  follow  a  State  law  as  to  negligence 
as  construed  by  the  State  court,  though  at  variance  with  the  general  prin- 
ciples of  the  law  of  negligence  habitually  recognized.! 5  Some  cases  involv- 
ing the  law  merchant  have  still  enforced  a  local  statute  changing  the 
rule  respecting  commercial  paper.  Thus,  a  local  statute  respecting  usury 
has  been  enforced  by  the  Federal  court;  1 6  a  local  statute  of  frauds  has 
been  applied  to  a  guaranty  on  a  note,  made  after  its  negotiation  ;!■?  a 
local  statute  as  construed  by  State  decisions,  respecting  the  rate  of  inter- 
est on  bonds  after  maturity,  has  been  followed. is 

But  in  other  cases  local  statutes  have  been  disregarded.  A  State  stat- 
ute forbidding  suit  on  an  unaccepted  bill  of  exchange  until  its  maturity, 
has  been  disregarded  upon  the  theory  that  if  applied  to  the  Federal  courts 
it  unlawfully  impaired  their  rightful  jurisdiction.! 9  The  Supreme  Court 
has  also  disregarded  a  State  law  in  holding  a  certificate  of  dopsoit  a  nego- 
tiable instrument. 2  0  So  it  has  been  said  that  the  construction  of  provi- 
sions in  a  State  constitution  may  involve  principles  of  general  jurisprudence 
which  the  Federal  courts  may  determine  for  themselves  regardless  of 
the  local  decisions. i 

[v]     Cases  on  error  to  State  courts  not  in  point. 

The  principles  discussed  above  as  to  what  law  shall  be  administered  by 
Federal  courts  in  the  decision  of  controversies,  is  applicable  only  in  causes 
tried  in  the  Federal  court.  A  different  question  is  presented  in  the  Su- 
preme Court  when  reviewing  decisions  on  writs  of  error.  In  such 
cases  the  sole  question  is  whether  the  State  courts  in  the  determination  of 
a  cause,  have  denied  any  Federal  right.  In  all  other  respects  the  State 
decision  is  binding  and  the  Supreme  Court  has  no  right  or  power  to  set 
up  any  other  rule  of  decision  or  to  decline  to  accept  the  local  court's  ad- 
ministration of  the   State  law  wlijn   involving  no  infringement  of  a  Fed- 


isLiverpool    Steam    Co.    v.    Phenix  160,  30  L.  ed.   193,   6   Sup.  Ct.   Rep. 

Ins.  Co.  129  U.  S.  443,  32  L.  ed.  788,  1019. 

9  Sup.  Ct.  Rep.  469.  leErown   v.   Grundy,    111   Fed.   15. 

1 4 Central  of  Ga.  Rv.  V.  Kavanaugh,  i  Closes   v.   Nat.   Bank    149   U.   S. 

92  Fed.  58,  34  C.  C.  A.  203;  Northern  .303,  37  L.  ed.  745,  13  Sup.  Ct.  Rep. 

Pac.   R.    R.    Co.   v.    Hogan.    63    Fed.  901. 

105,   11    C.   C.   A.   51;    Western,   etc.  i^Cromwell  v.  Sac  Co.  96  U.  S.  62, 

R.    R.   V.    Robinson,    61    Fed.    604.    9  24  L.  ed.  681 ;  Burton  v.  Koshkonong, 

C.  C.  A.  640:    Northern  Pac.  R.    R.  4  Fed.  375. 

V.  Mase,  63  Fed.  Ii5,  11  C.  C.  A.  63.  isWatson  v.  Tarpley,  18  Haw.  520, 

i5Bank   of    Sherman    v.    Apperson,  15  L.  c(\.  hll. 

4  Fed.  31;  Prentice  v.  Zanc.  19  Fed.  20Miller  v.  Austin.  13  How.  218,  14 

Cas.  1,273;  Phipps  v.  Hardins.  70  Fed.  L.  ed.  119. 

472.  17  C.  C.  A.  203.  .30  L.R.A.  513;  iTownship   of  Pine   Grove   v.   lal- 

Paine  v.  Central  &  R.  R.  118  U.  S.  cott,  19  Wall.  078,  22  L.  ed.  227. 

99 


§   11   [a]  FEDERAL    JURISDICTION    IN    GENKRAL.  [Code  Fed. 

eral  right.2     If  the  State  court  so  construes  a  law  tliat  it  does  not  violate 
any  Federal  limitation,  no  right  of  review  in  the  Supreme  Court  exists.3 

§  11.  — in  Admiralty  criminal  and  bankruptcy  cases  and  suits 
by  States. 
In  admiralty  cases  the  general  maritime  law  recognized  by 
civilized  commercial  nations  since  early  times,  with  such  modifica- 
tions as  Congress  and  the  Federal  courts  have  introduced  therein, 
is  administeredJ^^  But  even  in  admiralty  cases,  State  laws  validly 
creating  rights  of  a  maritime  nature  may  be  recognized  and  en- 
forced.^''^  In  Federal  criminal  cases  the  law  administered  is 
essentially  Federal  and  national. '^*'^  There  are  no  common  law 
offences  against  the  United  States.'^*'^  In  bankruptcy  proceedings 
the  bankrupt  law  furnishes  the  principle  rule  of  decision  though 
upon  many  questions  recourse  must  be  had  to  the  local  law  just  as 
in  other  cases. "^^^  Controversies  brought  originally  in  the  Supreme 
Court  by  a  State,  whether  against  another  State  or  otherwise,  may 
present  questions  which  must  be  decided  either  under  the  local 
law,  or  the  Federal  law  or  by  principles  of  international  law.^^^ 
Author's  section. 

[a]     Admiralty  causes. 

Admiralty  cases  are  as  old  as  navigation  itself  and  the  Federal  courts 
administer  the  maritime  law  as  it  has  existed  for  ages.s  It  partakes 
of  an  international  character  and  treaties  and  decisions  of  the  continental 
nations  of  Europe  are  recognized  as  authority  by  our  courts. 6  Our  ad- 
miralty law  is  closely  akin  to  that  of  England;"  especially  in  matters  of 
prize. 8  But  our  courts  have  proceeded  upon  a  more  enlarged  view  of  its 
essential  nature  and  objects,9  and  have  not  limited  its  operation  to  the 
high  seas  and  waters  where  the  tide  ebbs  and  flows. lo  While  each  na- 
tion may  adopt  its  own  maritime  code,  the  general  maritime  law  is  the 
basis  in  all,  and  the  local  modifications  are  largely  restricted  to  matters 
affecting  local  citizens  and  property.!  i     Congress  has  power  to  modify  its 

2See  Bacon  v.  Texas,  163  U.  S.  221,  6The   Maggie   Hammond,    9   Wall, 

41  L.  ed.  137,  16  Sup.  Ct.  Rep.  1029:  452,  19  L.  ed.  772. 

Osborne  v.  Florida,  164  U.  S.  650.  41  ^Thirty    Hotrsheads    of    Sugar    v. 

L.  ed.  587,  17  Sup.  Ct.  Rep.  214,  216;  Boyle,  9"Cr.  198,  3  L.  ed.  701. 

Avery  v.  Popper.  179  U.  S.  305,  45  L.  sThe   Venus,    8   Cr.   284,   3   L.   ed. 

ed.  203,  21  Sup.  Ct.  Rep.  94,  98;  Tur-  553. 

ner  v.  Wilkes  Co.  Comrs.   173  U.  S.  9New    England,     etc.     Ins.   Co.   v. 

463,  43  L.  ed.  769,  19  Sup.  Ct.  Rep.    46.5.  Dunham,  11  Wall.  24.  20  L.  ed.  90. 

sTampa  W.  Works  v.  Tampa,  199  i o The  Genesee  Chief  v.  Fitzhugh,  12 

U.  S.  241,  502.  50  L.  ed.  170.  How.  458,   459,  13  L.   ed.   1058.     See 

CAmeriean  Ins.  Co.  v.  Three  Hun-  ante,  §  2.W 

dred  bales  of  cotton,  1  Pet.  545,  546,  nThe  Lottawanna,   21    Wall.   558, 

7  L.   ed.  243.  22  L.  ed.  661. 

100 


Procedure] 


WHAT    LAW    ADMINISTERED. 


§  11    lb] 


provisions,i2  and  has  from  time  to  time  legislated  on  the  subject.  But 
the  question  of  the  limits  of  admiralty  jurisdiction  is  peculiarly  for  the 
courts  and  neither  Congress  nor  the  States  can  broaden  or  narrow  it  as 
judicially  ascertained.!  3  When  both  litigants  before  a  Federal  court  in 
admiralty  belong  to  the  same  foreign  nation,  they  may  have  their  con- 
troversy settled  by  the  maritime  law  of  their  own  country,  but  other- 
wise the  maritime  law  of  the  forum  prevails; i4  even  as  against  the  lex 
loci  contractus.!  5 

[b]  —  State  laws  and  decisions  as  affecting  admiralty  law  administered. 

The  maritime  and  not  the  local  law,  governs  the  liability  of  a  municipal- 
ity for  injury  to  a  vessel  by  its  fireboat.is  State  decisions  cannot  abro- 
gate the  maritime  law;i7  nor  are  they  of  binding  authority  on  the  Su- 
preme Court  upon  the  question  of  the  superiority  of  a  maritime  lien  to 
a  prior  recorded  mortgage. is  The  States  may  not  enlarge  or  restrict  the 
admiralty  jurisdiction.! 9  But  the  States  may  create  rights  such  as  liens 
for  wages2  0  or  repairs!  in  the  home  port,  which  being  recognized  as  es- 
sentially maritime  in  nature,  may  be  enforced  in  the  Federal  court  in 
admiralty,  and  according  to  their  own  rules  of  procedure,  and  the  iState 
court's  construction  of  such  a  statute  has  been  followed.2  Similarly  a  right 
of  action  for  death  on  a  vessel,  given  by  State  law,  is  enforceable  in  ad- 
miralty.3  It  has  been  said  that  the  Federal  courts  in  admiralty  will  en- 
force local  police  regulations  in  aid  and  furtherance  of  commerce.*  State 
statutory  rights  to  double  wharfage,5  or  to  tolls,6  to  lien  on  contract  of 


i2United  States  v.  Bevans,  3 
Wheat.  .389,  4  L.  ed.  404;  The  Lotta- 
wanna,  21  Wall.  577.  22  L.  ed.  654; 
In  re  Gamett.  141  U.  S.  1-18.  35  L.  ed. 
631.  11  Sup.  Ct.  Rep.  842;  The  Scot- 
land, 105  U.  S.  31,  32.  26  L.  ed.  1001. 

i3The  Lottawana,  21  Wall.  576.  22 
L.  ed.  654:  Butler  v.  Boston  S.  S.  Co. 
130  U.  S.  557,  32  L.  ed.  1017,  9  Sup. 
Ct.  Rep.  612.  See  also  ante,  §§  5.M 
2.nt] 

i4The  Scotland.  105  U.  S.  32,  20  L. 
ed.  1001;  The  Bel^enland.  114  U.  S. 
369,  370,  29  L.  ed.  152,  5  Sup.  Ct.  Rep. 
860. 

isWatts  V.  Camors.  115  U.  S.  361, 
29  L.  ed.  406,  6  Sup.  Ct.  Rep.  91. 

!  6 Workman  v.  New  York,  179  U.  S. 
552,  45  L.  ed.  314,  21  Sup.  Ct.  Rep. 
212. 

IV Workman  v.  Xew  York  Citv,  179 
U.  S.  563,  45  L.  ed.  321,  21  Sup.  Ct. 
Rep.  212. 

isTlie  J.  E.  Rumbell,  148  U.  S.  17, 
37  L.  ed.  545,  13  Snp.  Ct.  Rep.  498. 

!9See  ante,  §  5.  note.Cc] 

2  0Whitnev  v.  The  ilary  Gratwich, 
2  Sawy.  .34.3",  Fed.  Cas.  No.  17.591. 

iThe  Steamboat  Orleans  v.   Phoe- 


bus, 11  Pet.  184,  9  L.  ed.  680;  Ex 
parte  McNiel,  13  Wall.  243,  20  L.  ed. 
627;  The  Cossair.  145  U.  S.  347,  36 
L.  ed.  732,  12  Sup.  Ct.  Rep.  949; 
The  Illinois,  2  Flipp.  408,  Fed.  Cas. 
No.  7,005;  Atlantic,  etc.  Works  v. 
The  Glide,  157  Mass.  526,  34  Am. 
St.  Rep.  .307,  .33  N.  E.  163:  The 
J.  E.  Rumbell.  148  U.  S.  17,  37  L.  ed. 
345,  13  Sup.  Ct.  Rep.  500;  The  Glide, 
167  U.  S.  612,  614,  42  L.  ed.  298,  17 
Sup.  Ct.  Rep.  932.  See  also  post, 
§  15  [h] 

2Udell  V.  The  Ohio.  24  Fed.  Cas. 
498. 

sHolmes  v.  Orgeon.  etc.  Ry.  6 
Sawv.  271.  5  Fed.  523,  Tlio  Orqj:on.  45 
Fed.  76;  The  Garland,  5  Fed:  927: 
The  City  of  Norwalk,  55  Fed.  106, 
109;  Bigelow  v.  Nickerson,  70  Fed. 
119.  17  C.  C.  A.  1,  30  L.R.A.  336. 

^Steamboat  New  York  v.  Rea,  18 
How.  226,  15  L.  ed.  359;  The  Pal- 
metto, 1  Biss.  143,  Fed.  Cas.  No. 
10,699. 

5The  Ann  Ryan,  7  Ben.  25.  Fed. 
Cas.  No.  428. 

6The  St.  .Joseph,  21   Fed.  Cas.   178. 


101 


§   11    [c]  FEDERAL    JURISDICTION    IN    GENERAL.  [Code  Fed. 

aflfreightment,'?   or  to  lien  for  pilotage,?   have  all  been  enforced  in  admi- 
ralty. 

[c]     In  criminal  cases. 

The  Federal  courts  do  not  execute  the  penal  laws  of  a  State;  nor  have 
they  any  common  law  criminal  jurisdiction,!  o  nor  any  criminal  jurisdic- 
tion by  virtue  of  the  grant  of  jurisdiction  in  admiralty. n  In  criminal 
cases  the  law  administered  is  entirely  Federal  provided  and  prescribed  by 
Congress  under  the  limitations  of  the  Constitution.!  2  The  entire  juris- 
diction is  statutory.!  3  The  judge  may  comment  on  the  evidence  as  well 
as  instruct  upon  the  law  regardless  of  the  practice  of  the  State  where  the 
court  is  sitting.! 4  The  law  of  the  State  as  to  mode  of  challenging  juries 
or  excepting  to  instructions  has  no  applicability  to  a  criminal  case 
tried  by  the  circuit  court  sitting  therein.!  5  The  statute  adopting  the 
State  laws  as  rules  of  decision  does  not  apply  to  criminal  prosecutions  in 
the  Federal  courts.!  6  The  laws  of  evidence  in  Federal  criminal  trials  are 
those  that  existed  in  the  States  when  the  judiciary  act  was  adopted  in 
1789  and  as  modified  by  subsequent  acts  of  Congress.  Hence  subsequent 
State  laws  and  decisions  will  not  be  followed.! 7  The  State  law  as  to  im- 
paneling of  grand  juries  has  no  application  to  Federal  courts.!  8  in  for- 
feiting a  bail  bond  the  Federal  court  need  not  observe  the  remedies  pro- 
vided by  the  State  law.is  Certain  suits  by  a  State  of  a  penal  character 
may,  however,  be  removed  to  the  Federal  court  and  form  an  exception  to 
the  rule  that  the  Federal  courts  will  not  execute  State  penal  laws. 20 
In  such  cases  the  law  administered  is  local  law  except  as  it  may  be  found 
repugnant   to  the  laws   of  the  United   States. 

TThe  J.  F.  Warner.  22  Fed.  345.  142  U.  S.  148,  35  L.  ed.  969,  12  Sup. 

sMcDonald  v.  Priolean,  44  Fed.  770.  Ct.   Rep.    171. 

See  Wisconsin  v.  Pelican  Ins.  Co.  127  !5St.  Clair  v.  United  States,  154  U. 

U.  S.  299,  32  L.  ed.  246,  8  Sup.  Ct.  S.  134,  38  L.  ed.  936,  14  Sup.  Ct.  Rep. 

Rep.  1374;  Huntington  v.  Attrill,  146  1002,   1010. 

U.  S.  657,  36  L.  ed.  1123,  13  Sup.  Ct.  !6United  States  v.  Reid,   12  How. 

Rep.  224.  363.  13  L.  ed.  1023. 

!OSee  infra,  note.td]  i^United  States  v.  Reid,   12  How. 

1! Butler  V.  Steamshsip  Co.  130  U.  363,  13  L.  ed.  1023:  Logan  v.  United 

S.  527,  32  L.  ed.  1017.  9  Sup.  Ct.  Rep.  States,  144  U.  S.  301,  36  L.  ed.  442, 

612;    Manchester    v.    Massachusetts,  12  Sup.  Ct.  Rep.  629;   United  States 

139  U.  S.  240,  262.  35  L.  ed.   159,  11  v.  Hall,  53  Fed.  353:    United   States 

Sup.   Ct.  Rep.    504.  v.  Shepard,  1  Abb.   (U.  S.)   436,  Fed. 

i2United  States  v.  Reid.   12  How.  Cas.    No.    16.273;    United    States    v. 

363,  13  L.  ed.  1023.  Coppersmith,  2  Flipp.  554,  4  Fed.  205; 

!  3 Jones  V.  United  States,  137  U.  S.  United    States    v.    Brown,    1    Sawy. 

211,  34  L.  ed.  091,  11   Sup.  Ct.  Rep.  538,    Fed.    Cas.    No.    14,071;    United 

80;  Manchester  v.  Massachusetts,  139  States   v.   Baugh,    4   Hughes,   511,    1 

U.  S.  262,  35  L.  ed.  159,  11  Sup.  Ct.  Fed.  788. 

Rep.  559.  !8United  States  v.  Ambrose,  3  Fed. 

!4Starr  v.  United  States.  153  U.  S.  285. 

625,  38  L.  ed.  841,  14  Sup.  Ct.  Ren.  !9Uniteu  States  v.  Insley,  54  Fed. 

919;   Allis  v.   United  States,   155  U.  223,  4  C.  C.  A.  296. 

S.    124,    39    L.    ed.    91,    15    Sup.    Ct.  2  0See  post,  §§  137,  138. 
Rep.  36;   Simmons  v.  United  States, 

102 


Procedure]  WHAT    LAW    ADMINISTERED.  S  H  [e] 

[d]  Common  law  offenses  against  the  United  States. 

It  has  been  frequently  declared  that  the  courts  created  by  Congress  to 
exercise  the  Federal  judicial  power  have  no  power  to  declare  any  act  to 
be  a  crime  against  the  Federal  government  because  it  is  such  by  common 
law  principles,  where  Congress  has  not  declared  it  criminal  and  authorized 
its  punishment  in  such  courts. ^  And  though  the  first  decision  of  the 
matter  was  by  the  court  without  the  benefit  of  argument  by  counsel  and 
its  correctness  was  afterwards  questioned, 2  numerous  cases  have  since 
aflBrmed  the  principle  that  there  are  no  common  law  ofl'enses  against  the 
United  States,  and  an  act  must  come  within  some  penal  law  of  Congress 
to  be  punished  therein  as  a  crime.s 

[e]  Bankruptcy  cases. 

Federal  courts  are  of  course  not  bound  by  State  laws  or  decisions  con- 
flicting with  the  provisions  by  the  bankrupt  law; 5  nor  by  State  decisions 
construing  its  meaning. 6  Yet  many  questions  particularly  questions  of 
property  rights  arising  in  the  course  of  banki-uptcy  proceedings  must  be 
determined  by  the  local  State  law.  The  Federal  court  is  just  as  much 
bound  as  in  other  cases  already  discussed"  to  apply  the  local  law  to  the 
decision  of  matters  of  controversy  arising  in  such  proceedings,  when  such 
matters  are  within  the  control  of  the  local  law  making  power.  The  State 
law  as  to  exempt  property,  as  construed  by  the  State  court,  has  been  fol- 
lowed.-^  Local  decisions  have  been  recognized  and  applied  in  determining 
what  were  distributable  assets  in  bankruptcy.^  The  local  statute  of  lim- 
itations has  been  followed,io  and  local  lien  laws.n     The  local  rule  as  to 


lUnited  States  v.  Worrall,  2  Dall.  436,  In  re  Kellv.  71  Fed.  546;  United 

384,    1    L.  ed.   426;   United   States   v.  States  v.  LewisV36  Fed.  450,  13  Sawv. 

Hudson,  7  Cranch,  32,  3  L.  ed.  259.  532;  United  States  v.  Bover.  85  Fed. 

2United     States     v.     Coolidge,     1  436. 

Wheat.  415,  4  L.  ed.  124.  sin  re  Plotke,  104  Fed.  964,  44  C. 

sUnited  States  v.  Britton,   108  U.  C.  A.  232.     See  John  Deere  Plow  Co. 

S.   206,    27    L.    ed.    698.    2    Sup.    Ct.  v.  McDavid,  137  Fed.  802,  70  C.  C.  A. 

Rep.   531 ;    Benson   v.   Mc^Iahon,    127  422,    following    Federal    decisions    as 

U.  S.  466,  32  L.  ed.  234,  8   Sup.  Ct.  to  right  to  preference. 

Rep.   1240;   Jones   v.   United    States,  6 Williams  v.  Heard,  140  U.  S.  536, 

137  U.  S.  211,  34  L.  ed.  695,  11  Sup.  35  L.  ed.  .550,  11   Sup.  Ct.  Rep.  885. 

Ct.  Rep.  83:  United  States  v.  Eaton,  7See  ante,  §  10. 

144  U.  S.  687,  36  L.  ed.  591,  12  Sup.  sin  re  WvUie,  2  Hughes,  461,  Fed. 

Ot.  Rep.  764;  United  States  v.  Wilson,  Cas.  No.  18.112;  Richardson  v.  Wood- 

3  Blatchf.  438,  Fed.  Cas.  No.  16.731;  ward,  104  Fed.  873,  44  C.  C.  A.  235; 

United  States  v.  Plumer.  3  Clifi".  55,  In    re    Stone,    116    Fed.    35;    In    re 

Fed.  Gas.  No.  16,05o;   United  States  Beauchamp,  101   Fed.   106. 

V.  New  Bedford  Bridcre,   1    Wood.   &  9ln   re  Zug,   30   Fed.   Cas.   948,   16 

M.  438,  Fed.  Cas.  No.'^15.S67:  United  Nat.  Bank  Reg.  280. 

States  v.  Rogers,  46  Fed.  3;   United  loin  re  Noesen,  6  Biss.  442.  12  N. 

States  v.  .>enson,  70  Fed.  594.  17  C.  Bank  Reg.  426,  Fed.  Cas.  No.  10,288; 

C.    A.    293;    Forward    v.    Adams,    7  In  re  Eldridpre,  2  Hushes,  257,  12  N. 

Wend.     207;      Campbell     v.     United  Bk.   Reg.   540,   Fed.   Cas.   No.   4.331; 

States,    4    Fed.    Cas.    1202;    Mullers  In  re  Cornwall.  9  Blatchf.  127,  6  N. 

Case,  17  Fed.  Cas.  976;   In  re  Dana,  Bank  Re'r.  318,  Fed.  Cas.  No.  3.2.50. 

68   Fed.   899:    In   re  lasigi,   79   Fed.  nin  re  Crissler,   136  Fed.  754,  G9 

752:  United  States  v.  Boyer,  85  Fed.  C.  C.  A.  406. 

103 


§   12   [a]  FEDERAL    JURISDICTION    IN    GENERAL  [Code  Fed. 

rights  and  liabilities  on  commercial  paper  has  been  followed  notwithstani 
ing  that  the  Federal  courts  assume  to  disregard  local  decisions  an  ques- 
tions of  commercial  law. 12 

[f  J     Suits  to  which  a  State  is  party  in  Supreme  Court. 

The  Constitution  extends  the  Federal  jurisdiction  to  controversies  be- 
tween States  and  by  States  against  foreign  States,  citizens,  or  aliens,  and 
vests  original  jurisdiction  in  the  Supreme  Court. i*  It  does  not  however, 
declare  the  law  applicable  in  the  decision  of  such  controversies.  In  such 
cases  the  Supreme  Court  is  a  sort  of  international  tribunal  and  administers 
not  only  local  and  national  law  but  also  a  species  of  international  law,i5 
where  the  rights  to  be  measured  and  adjudged  are  not  within  the  legisla- 
tive control  of  any  State  or  of  Congress.  In  such  cases,  while  State  cases 
and  decisions  would  have  no  binding  force  they  might  be  very  material 
evidence  as  recognition  by  the  litigants  of  the  validity  of  general  prin- 
ciples of  law.  And  when  both  recognized  the  soundness  of  certain  prin- 
ciples of  general  jurisprudence  which  if  applied  would  control  the  deci- 
sion of  the  controversy,  plainly  such  would  be  the  law  administerd  by 
the  Supreme  Court  unless  repugnant  to  the  fundamental  law  of  the  na- 
tion. It  has  been  decided  that  the  Supreme  Court  will  not  administer 
the  penal  laws  of  a  State  in  a  suit  by  it  against  citizens  of  other  States, 
because  under  accepted  principles  of  general  jurisprudeueo,  such  laws  can 
have  no  extra-territorial  efi'ect.i6 

§  12.  — State  laws  as  rules  of  decision. 

The  laws  of  the  several  States,^'^^"'^'^^  except  where  the  Constitu- 
tion, treaties,  or  statutes  of  the  United  States  otherwise  require  or 
provide,  1^^^  shall  be  regarded  as  rules  of  decision  in  trials  at  com- 
mon law,t^^"f^^  in  courts  of  the  United  States,  in  cases  where  they 
apply,  f^^ 

R.  S.  §  721,  U.  S.  Comp.  Stat.  1001,  p.  581. 

[aj     The  section  in  general. 

This  section  (originally  the  34th  section  of  the  judiciary  act  of  1789) 
furnishes  a  rule  to  guide  the  court  in  the  formation  of  its  judgment. ^ 
It  declares  the  rules  by  which  rights  in  controversy  are  to  be  measured 
and  adjudged,  and  not  the  mode  in  which  the  court  is  to  proceed.  It  has 
no  application  to  the  practice  of  the  court. 2     But  questions  may  arise  sub- 

i2In   re   Shelbourne,   21   Fed.    Cas.  nois,  200  U.  S.  496,  26  Supt.  Ct.  Rep. 

1,235,  contra,  see  Fogg  v.  Stickney,  11  208;  50  L.  ed.  572. 

Nat.   Bank  Reg.   108,  Fed.   Case  No.  1 6 Wisconsin  v.  Pelican  Ins.  Co.  127 

4,898;   Tod  v.  Ky.  Land  Co.  57  Fed.  U.  S.  299,  32  L.  ed.  246,  8  Sup.  Ct. 

65.  Rep.    1374.     See    Huntinorton    v.   At- 

i4See  ante,  §  2.  note;[o]  post,  §  35.  trill,   146  U.   S.   657,  36  L.  ed.   1123, 

isMarriatt  v.  Silk,  11  Pet.  22,  23,  13  Sup.  Ct.  Rep.  224. 

9   L.   ed.   617;    Kansas   v.    Colorado,  iWayman  v.  Southard,  10  Wheat. 

IS15  U.  S.  125,  46  L.  ed.  838,  22  Sup.  24,  6  L.  ed.  258. 

Ct.   Rep.   552,   560;    Missouri  v.   Illi-  2Wayman  v.  Southard,  10  Wheat. 

104 


Procedure]  STATE  LAWS  AS  RULES  OF  DECISION.  §   1'-   [b] 

sequeiitly,  in  a  suit  growing  out  of  some  form  or  mode  of  proceeding  or 
matter  of  practice,  in  which  the  State  or  Federal  law,  must  furnish  the 
rule  of  decision  according  as  the  one  or  the  other  governed  such  mode  of 
proceeding. 3  The  legislature,  making  the  state  laws  the  rule  of  decision, 
for  Federal  courts,  is  largely  declaratory  of  a  principle  that  results  in- 
dependently of  any  legislation,  from  the  nature  and  constitution  of  our 
government.*  But  it  is  not  altogether  so.  The  local  statutes  of  limitation 
and  the  local  law  as  to  property  exempt  from  execution  is  adopted  by  this 
section.  Congress  was  not,  however,  obliged  to  adopt  them  and  might 
have  legislated  independently  of  the  States. 5  The  principles  of  law  and 
the  cases  dealing  with  the  question  when  the  Federal  courts  are  bound  to 
administer  State  law  and  make  it  their  rule  of  decision,  and  when  they 
may  disregard  it,  are  discussed  elsewhere  at  length.6 

[b]     Refers  to  statutory  laws  and  not  judicial  decisions. 

lu  an  early  case  it  was  decided  that  the  term  '"laws"  did  not 
include  the  decisions  of  the  local  courts.  Decisions,  it  was  said,  do  not 
constitute  laws  but  are  at  most  evidence  of  what  the  laws  are.s  While 
the  technical  correctness  of  this  conclusion  may  not  be  questioned,  it  by  no 
means  follows  that  settled  principles  of  State  law  at  to  matters  within  the 
local  law  making  power,  may  be  disregarded  by  Federal  courts  because  rest- 
ing solely  in  judicial  decisions  and  not  founded  upon  statutes.  Rules  of 
property  and  the  settled  interpretation  of  a  State's  common  law  or  public 
policy,  plainly  disclosed  in  the  decisions  of  the  highest  State  court  must  be 
recognized  and  followed  by  the  Federal  court  sitting  within  a  State.9  In 
all  cases  where  it  is  the  duty  of  the  Federal  covirts  to  apply  the  local 
law  they  are  as  much  boimd  by  that  law  when  evidenced  by  judicial 
decisions  as  by  statutory  enactments.  Yet  as  decisions  are  merely  evidence 
of  the  local  law  the  Federal  courts  may  exercise  an  independent  judgment 
as  to  the  satisfactory  nature  of  such  evidence.  Hence  where  there  is  no  set- 
tled course  of  State  decisions,  or  they  are  conflicting,  or  obviously  un- 
sound, or  not  by  the  highest  court,  the  Federal  courts  are  no  more  bound 
by  preceding  adjudications  than  is  the  highest  court  of  the  State  when  it 
is  Stftting.io  The  fact  that  the  statute  does  not  make  State  court  deci- 
sions of  binding  authority  has  been  deemed  to  justify  the  doctrine  that 
the  Federal  courts  may  administer  general  principles  of  jurisprudence  or 
commercial  law  in  certain  cases.n  Unconstitutional  State  statutes  are  not 
laws  or  rules  of  decision  within  this  section. 12 

26,   6   L.   ed.   259;    Bank    of   United  sSee  ante.  S  10,  notes  [1]   [m]   [o]. 

States    V.    Halstead,    10    Wlieat.    62,  eSee  ante.   §§   10,  11. 

6  L.  ed.  2G7.  sSwift  v.  Tyson,  16  Pet.   8,   10  L. 

3Wavman  v.  Southard,  10  Wheat,  ed.   865:    Ex   parte   Wadell,   28   Fed. 

25,  6  L.  ed.  258,  250.     Compare  Tul-  Cas.  1312. 

lock  V.  Mulvane,  184  U.  S.  514,  46  L.  9See  ante,  §  10.  notes,  [ff]   [k] 

ed.   657,   22   bup.   Ct.   Rep.   372,   and  loSee  ante,  §  10,  notes.[h]-[k] 

Fidelity,  etc.  Co.  v   ^uck  Co.  189  U.  uSee  ante,  §  10,  note.M 

S.   135,  23   Sup.  Gc.  Rep.  582,  47  L.  i2Poindexter  v.  Greenhorn,  114  U. 

ed.  744.  S.  303.  29  L.  ed.  185,  5  Sup.  Ct.  Rep. 

<See  ante,  h  10,  note.ta]  903,  962. 

105 


§   12   [c]  FEDERAL  JURISDICTION    IN   GENERAL.  [Coif  Fed 

[c]  Questions  as  to  the  existence  or  applicability  of  State  statutes. 
Upon  the  question  whether  a  given  statute,  as  construed  by  the  State 

court  is  in  fact  applicable  to  a  contract,  the  Federal  court  will  exercise  an 
independent  judgment.i^  Ordinarily  the  decision  of  the  highest  State 
court  as  to  the  existence  of  a  State  constitution,!  5  or  whether  a  local 
statute  has  been  duly  enacted  will  be  deemed  binding  by  the  Federal 
courts. 16  The  decision  of  the  State  court  as  to  what  are  the  State  laws, 
is  binding  upon  the  Federal  courts-iT  But  the  Federal  courts  have  re- 
fused to  be  bound  by  a  State  decision  declaring  the  terms  of  a  statute  as 
enacted,  to  be  different  from  the  printed  laws; is  or  a  decision  pronounc- 
ing an  act  void  for  insufficiency  of  title  where  the  question  was  as  to  the 
exact  wording  of  the  title  of  the  law  as  enacted. 1 9  In  other  cases,  how- 
ever, the  local  rules  as  to  admitting  the  legislative  records  to  prove  an 
enrolled  act  not  duly  passed,  has  been  followed.2  0  If  the  State  courts  have 
held  constitutional  pi'ovisions  as  to  the  enactment  of  statutes  mandatory, 
the  Federal  courts  will  do  likewise  in  determining  whether  a  statute  has 
been  duly  enacted. i  The  decision  of  a  State  court  that  a  statute  was  not 
repealed  by  a  later  enactment,  is  binding. 2  A  State  decision  as  to  the 
time  a  constitutional  amendment  took  effect  will  be  followed.^ 

[d]  State  court's  construction  of  local  statutes  is  controlling. 

It  has  long  been  settled  that  the  Federal  courts  will  adhere  to  the 
construction  placed  upon  State  laws  by  the  highest  State  courts.  5  The 
fixed  and  received  construction  of  a  State  statute  is  deemed  to  constitute 
a  part  of  such  statutes. 6     It  belongs  to  the  State  courts  to  construe  their 

i^Casserleig'u    v.    Wood,    119    Fed.  ^Brown    v.    \'an    Braam,    3    Dall. 

308,   56   C.   C.   A.    212;    Ottumwa   v.  346,  1  L.  ed.  629;  McKeen  v.  Delaney, 

Citv,  etc.  Co.   119  Fed.  315,  56  C.  C.  5   Cranch,  32,   3  L.   ed.   25;    Polk   v. 

A.  219,  59  L.R.A.  604.  Wendal,  9  Cranch,   98,  3  L.  ed.  665; 

isLuther  v.  Borden,  7  How.  1,  40,  Elmendorf  v.  Taylor,  10  Wheat.  159, 

12  L.  ed.  581.  6  L.  ed.  289;  Lent  v.  Tillson,  140  U. 

iGDuncan  v.  McCall,  139  U.  S.  461,  S.  328.  35  L.  ed.  419,  11  Sup.  Ct.  Rep. 

35  L.  ed.  224,  11   Sup.  Ct.  Rep.  577;  825;  Roberts  v.  Lewis,  153  U.  S.  377, 

Crowther  v.  Fidelity,  etc.  Co.  85  Fed.  38  L.  ed.  747,  14  Suj).  Ct.  Rep.  945; 

41,   29   C.   C.    A.    1.     See   Knight   v.  Adams  Exp.  Co.  v.  Ohio  Auditor,  165 

Shelton,  134  Fed.  423.  U.    S.    219,   41    L.    ed.    683,    17    Sup. 

1'? Leavenworth  Co.  v.  Barnes,  94  U.  Ct.  Rep.  305;    Forsyth  v.  Hammond, 

S.  71.  24  L.  ed.  63;  Post  v.  Supervis-  166  U.  S.  518.  41  L.  ed.  1095,  17  Sup. 

ors,  105  U.  S.  669,  26  L.  ed.  1204.  Ct.  Rep.  665.     Numerous  other  cases 

isSoiith  Ottawa  v.  Perkins,  94  U.  may  be  found  by  consulting  the  an- 

S.  267,  24  L.  ed.  157,  158.  notation  of  the  above  cases  in  the  U. 

isBeatrice   v.   Edminson,    117    Fed.  S.  notes. 

427,  54  C.  C.  A.  601.  eGreon  v.  Neal,  6  Pet.  297,  8  L.  ed. 

20Comstock  V.  Tracey,  46  Fed.  170,  402;   Piqua  Bank  v.  Knoop.  16  How. 

Chicago,    etc.    R.   R.    v.    Smyth,    103  391,   14  L.  ed.  977;   Walker  v.  Har- 

Fed.  376.  bor  Comrs.   17   Wall.   651,  21   L.   ed. 

iWilkes  Co.  v.  Coler,  180  U.  S.  533,  744;  Lolfingwell  v.  Warren,  2  Black. 

45  L.  ed.  655,  21   Sup.  Ct.  Rep.  458.  599,  17  L.  ed.  261;  Bucher  v.  Chesliire 

2Peik  V.  Northwestern  R.  R.  94  U.  R.   R.   125  U.  S.  583,  31   L.  ed.  795, 

S.  164,  24  L.  ed.  97.  8  Sup.  Ct.  Rep.  977.     For  other  cases 

sWade  v.  Walnut,  105  U.  S.  2,  26  in  point  see  annotation  of  foregoing 

L.  ed.  1027.  in  U.  S.  notes. 

106 


I 


Procedure]  STATE  LAWS  AS  RULES  OF  DECISION.  §   12   [d] 

own  laws  and  the  laws  when  thus  expounded  bind  the  Federal  courts,  t 
A  construction  of  State  laws  established  by  long  usage  will  be  deemed 
equally  as  binding  as  though  based  on  judicial  decisions.8  The  Texas 
court's  construction  of  the  Mexican  colonization  law  made  part  of  the 
local  law  of  Texas  after  its  independence  will  be  followed. 9  In  constru- 
ing the  Louisiana  Code,  the  works  of  civil  law  writers  have  been  given  a 
persuasive  force.io  in  construing  a  treaty  settling  boundary  lines  within 
the  State,  the  local  court's  construction  has  been  adopted  where  not  re- 
pugnant to  the  treaty.ii  Where  a  State  law  has  not  received 
a  construction  by  the  State  courts,  the  Federal  courts  are  com- 
pelled to  form  an  independent  judgment  as  to  its  meaning.12  But 
a  subsequent  State  decision  construing  a  statute  contrary  to  a 
Federal  decision  at  circuit  will  be  followed.  1 3  If  a  State  decision 
does  not  present  a  clear  case  of  construction  of  a  State  statute,  but 
only  asserts  general  principles,  it  is  not  necessarily  binding;  1 4  nor  is  the 
Federal  court  boimd  by  a  statement  in  an  individual  concurring  opinion;  is 
nor  by  decision  of  an  inferior  State  court.ie  The  Supreme  Court  need  not 
follow  the  latest  of  conflicting  decisions  especially  where  contract  rights 
have  vested  under  the  earlier  construction  of  a  local  statute.!  ^  They 
will  only  apply  a  change  in  the  State  court's  construction  of  a  statute, 
prospectively,  just  as  though  it  were  an  amendment.!  8  Where  the  same 
statute  is  enacted  by  difl'erent  States,  which,  however,  differently  constrvict 
the  meaning  of  its  provisions,  the  Federal  courts  regard  them  as  different 
laws  and  follow  the  construction  adopted  in  the  State  where  they  are  sit- 
ting.! 9  If  not  as  yet  construed  by  the  local  courts  they  are  not  bound 
by  a  construction  of  a  similar  statute  elsewhere,2  0  or  if  in  other  jurisdic- 
tions, different  constructions  have  been  adopted,  they  may  choose  between 
them.i      By    a   parity    of   reasoning   the    Supreme    Court    and   the    courts 

TSmith  V.  Kernochen,  7  How.  219,  leBeals  v.  Hale.  4  How.  54,   if  L. 

12  L.  ed.  606.  ed.  873. 

sCarroU  v.  Safford,  3  How.  460,  11  i^Douglass  v.  Pike  Co.   101   U.   S. 

L.  ed.  671.  686,   25   L.   ed.   968.     See   also   ante, 

sChristv  V.  Pridgeon,  4  Wall.  204.  §   10,  note   [k]. 

18  L.  ed.  322.  isDouglass  v.   Pike  Co.   101   U.  S. 

lOGroves  v.  Sentell,  153  U.  S.  478,  080.  25  L.  ed.  968;  Green  v.   Comrs. 

38  L.  ed.  785,  14  Sup.  Ct.  Rep.  898.  109  U.  S.  105,  27  L.  ed.  872,  3  Sup. 

iiLattimer  v.   Poteet,    14   Pet.   18,  Ct.  Rep.  69:  Knox  v.  Ninth  Nat.  Bk. 

10  L.  ed.  328.  147  U.   S.   99,  37  L.   ed.  90,   13   Sup. 

i2Sioux   City  R.   R.   v.   Trust   Co.  Ct.  Rep.   270. 

of  North  America,  173  U.  S.  107,  43  isLouisiana  v.  Pillsburv,  105  U.  S. 

L.    ed.    628,    19    Sup.    Ct.    Rep.    341;  294,  26  L.  ed.  1090;    Mav  v.  Tenney, 

Knight  V.  Shelton,  134  Fed.  423.     See  148  U.  S.  64,  37  L.  ed.  368.  13  Sup. 

cases  cited  ante,  §  10.  note.Ch]  Ct.   Rep.  491;    ^Miitney  v.   Fox,   163 

isKibbe  v.  Ditto,  93  U.  S.  680,  23  U.  S.  647,  41  L.  ed.  1145,  17  Sup.  Ct.' 

L.  ed.   1005.  Ren.   713. 

i^Town  of  Venice  v.  Murdock,  92  20Texas,   etc.  Ry.  v.   Humble.   181 

U.  S.  501,  23  L.  ed.  583;   Brunswick  U.  S.  66,  45  L.  ed.  751,  21   .Sup.  Ct. 

T.  Co.  v.  National  Bk.  88  Fed.  611.  Rep.  526. 

i5€€ntral  R.  R.  v.  Wright,  164  U.  iCoulan  v.  Doull.  133  IT.  s.  233.  33 

S.  333,  41  L.  ed.  454,  17  Sup.  Ct.  Rep.  L.   ed.  596,    10  Sup.  Ct.   Rep.   253. 
80. 

107 


§   12    [e] 


FEDERAL    JURISDICTION    IN    GENERAL. 


[Code  Fed. 


of  the  District  of  Columbia  hold  themselves  bound  by  the  construction 
placed  upon  Maryland  statutes  in  force  in  the  District,  by  the  Maryland 
courts  prior  to  the  cession  of  the  District, 2  and  subsequent  Maryland  casea 
are  deemed  persuasive  though  not  controlling.  3  Similarly  the  Federal 
Supreme  Court  inclines  to  adopt  the  highest  teixitorial  court's  construc- 
tion of  a  local  statute  as  to  parties.*  Local  decisions  can  of  course,  have 
no  controlling  force  in  construing  Federal  statutes.^ 

[e]     State  court's  construction  of  local  constitution. 

The  construction  of  a  State  constitution  by  the  highest  State  court  is 
similarly  binding.^  Hence  if  the  State  courts  declare  a  law  valid  or  in- 
valid under  the  State  constitution  this  conclusion  must  be  accepted  by  the 
Federal  courts,  8  though  the  case  in  which  it  was  rendered  was  a  pre- 
pared case  not  involving  any  genuine  controversy ;  9  and  though  the  de- 
cision was  by  a  divided  court;  10  and  even  although  similar  words  in  the 
interstate  commerce  law  have  received  a  different  construction,  n  The 
construction  of  a  State's  constitution  and  laws  by  the  State  court  is  re- 
ceived by  the  Federal  courts  as  a  part  of  such  law.12  State  decisions 
on  the  State  constitution  will  be  given  persuasive  force  by  Federal  courts 
when  dealing  with  similar  ^jrovisions  of  the  Federal  constitution.! 3  Where 
possible,  the  Federal  courts  will  avoid  passing  upon  the  validity  of  a 
State  law  under  the  State  constitution  in  advance  of  a  State  decision 
thereon.14     As  is  elsewhere  stated,  the  Federal  courts  will  follow  earlier 


2 Alexandria  Canal   Co.   v.   Swarm,  L.    ed.    237,    17    Sup.    Ct.    Rep.    830; 

5  How.  S3,  12  L.  ed.  GO.  Miller  v.  Armour,  145  U.   S.  423,  36 

sWallingsford  v.  Allen,  10  Pet.  593,  L.    ed.    759,    12    Sup.    Ct.    Rep.    8S4; 

9   L.    ed.    542;    IMiller   v.    Herbert,    5  Giozza    v.    Tiernan,    148    U.    S.    G61, 

How.  81,  12  L.  ed.  55;  Phillips  v.  Neg-  37  L.  ed.  599,  13  Sup.  Ct.  Rep.  721; 

ley,  117  U.  S.  678,  29  L,  ed,  1013,  6  McCain  v.  Des  Moines,  174  U.  S.  177, 

Sup.  Ct,  Ren,  901.  43  L.  ed.  936,   19  Sup,  Ct,  Rep,  644; 

4Sweeney  v.  Lomme,  22  Wall,  213,  Mason   v,    Missouri.    179   U.    S.    334. 

22  L.  ed.  727.  45  L.  ed,  219,  21   Sup.  Ct,  Rep.  125; 

sCalhoun,  etc,  Co,  v,  Ajax  Co,  182  Orr  v,  Gilman,  183  U.  S.  283.  46  L. 

U.    S.   499,  45   L.   ed,    1200,   21    Sup,  ed,  196,  22  Sup.  Ct.  Rep.  213;  Hughes 

Ct.  Rep.  885.  v.  PUinz,  138  Fed.  980. 

TElmwood  V.  Marcy,  92  U.  S.  294,  sAdams  Exp.  Co.  v.  Ohio  State  Au- 


23  L.  ed.  710;  Louisville,  etc,  Ry. 
Mississippi,  133  U,   S,  591,  33  L,  ed, 
784,  10  Sup.  Ct.  Rep.  348;  Henry  Co. 


ditor,  165  U.  S.  219,  41  L.  ed.  683,  17 
Sup.  Ct.  Rep.  305. 

10 Williams  v.  Eggleston,  170  U,  S. 


V,  Nicolay,  95  U,  S.  625,  24  L.  ed.  394;  311,  42  L.  ed.  1047,  18  Sup,  Ct,  Rep, 

Railroad  Co,   v.    Schutte,   103   U,   S,  617. 

139,  26  L,  ed,  327;   Wade  v.  Walnut,  nLouisville,  etc,  R,  R.  v.  Kentucky, 

105  U.  S.  2,  26  L.  ed.  1027;   Gilman  183  U.  S.  507,  40  L,  ed.  298,  22  Sup. 

V.  Sheboygan,  2  Black,  518,  17  L.  ed.  Ct.  Ren.  95. 

305.          '  12 Webster  v.  Cooper,  14  How.  505, 

sBank   of   Hamilton   v.   Dudley,   2  14  L,  ed,  510;    Southern  Pac,  R,  R. 

Pet.  524,  7  L.  ed.  49G :   Gut  v.  State,  v,  Orton,  32  Fed.  478. 

9  Wall,  36.  19  L,  ed.  573;  Robinson  isSpencer  v.   Merchant,    125  U.   S. 

v.  Fair,  Xii8  U.  S.  86,  32  L.  ed.  415,  352,  31   L.   ed.   763,  8   Sup.   Ct.   Rep. 

9  Sup.   Ct.   Rep.    30;    Lincoln   Co,   v.  921. 

Luninff.  133  U,  S.  532,  33  L,  ed.  766,  i4Pelton  v.  National  Bk.  101  U.  S. 

10  Sup.  Ct.  Rep.  363;   Merchants  Bk.  144,  25  L,  ed,  901;   Wilev  v.  Sinkler, 
v.   Pennsvlvania,   167    U,    S.    463,   42  179   U.  S,  66,  45  L.  ed."^  89,  21    Sup, 

108 


i 


Procedure]  STATE  LAWS  AS  RULES  OF  DECISION.  §   12  ffl 

State  cases  construing  the  State  constitution  and  upholding  the  validitj 
of  statutes  under  which  contract  rights  had  vested,  rather  than  later  one.- 
declaring  them  invalid.is  In  one  case  it  has  been  declared  that  the 
construction  of  a  State  constitution  may  involve  general  principles  of 
jurisprudence  as  to  which  the  holdings  of  the  State  court  need  not  be 
followed.  16  The  Supreme  Court  will  follow  the  decision  of  a  State  court 
denying  the  legislature's  power  to  validate  a  municipality's  stock  sub- 
scription to  a  railroad. 17 

[f]  Local  law  not  followed  where  Federal  constitution,  treaties  or  statutes 
control. 
The  constitution  makes  the  Federal  constitution  treaties  and  laws  su- 
premeis  and  the  Federal  courts  are  never  bound  to  administer  local  law 
where  in  conflict  with  the  Federal  Constitution  or  with  any  lawful  exercise 
of  the  law  making  power  of  the  nation.2  0  This  is  so  plain  that  in  few 
cases  has  any  question  arisen.  All  State  laws  and  decisions  conflicting 
with  the  law  of  the  nation  must  be  disregarded.!  They  are  not  rules  of 
decision  where  the  constitution,  treaties  or  statutes  of  the  United  States 
otherwise  provide.  2  A  State  decision  that  a  revenue  stamp  is  not  neces 
sary  to  render  a  document  admissible  in  evidence,  is  not  binding.3  State 
decisions  as  to  whether  a  State  law  impairs  the  obligation  of  a  contract 
are  not  binding.*  State  decisions  which  if  followed  in  the  construction 
of  a  local  law  would  impair  a  contract  by  destroying  the  remedy,  are 
not  binding. 5  The  Federal  courts  are  not  bound  to  accept  the  local 
tribunal's  opinion  that  a  statutory  tax  proceeding  is  not  a  suit,  where  the 
question  is  as  to  its  removability  to  the  Federal  court  under  the  act  of 
Congress. 6  The  Federal  courts  are  not  bound  to  accept  a  State  court's 
decision  that  the  probate  in  due  form  of  the  property  of  a  man  in  fact 
alive,  is  valid,  where  it  is  of  opinion  that  such  proceeding  is  a  depriva- 
tion of  property  without  due  process  of  law  under  the  Federal  constitu- 
tion.'? Nor  will  they  accept  a  State  ruling  that  private  property  may  be 
taken   for  public  use  without   making   compensation   therefor.s     A   State 

Ct.  Rep.   17;    Hills  v.  Exchange   Bk.  -Connecticut  L.  I.  Co.  v.  Schaefer, 

105  U.  S.  319.  26  L.  ed.  1052;  Western  94  U.  S.  458,  24  L.  ed.  251. 

U.  T.  Co.  V.  Poe,  61  Fed.  409;  Wes.t-  3Sackett    v.    McCafl'rey,    131    Fed. 

ern  U.  T.  Co.  v.  Poe,  64  Fed.  11.    See  219,  05  C.  C.  A.  205. 

ante,  §  10.  note.Lh]  4Dundee,  etc.  Co.  v.  School  Dist.  19 

isElmwood  V.  Marcy,  92  U.  S.  289,  Fed.   365.     Nor  are  they  binding  on 

23   L.    ed.    710;    Anderson    v.    Santa  writ  of  error  to  a  State  court.     See 

Anna,   116  U.   S.   364,  29  L.  ed.   036,  infra,  note.[h] 

6  Sup.  Ct.  Rep.  417.     And  see  ante,  sButz  v.  City  of  Muscatine.  8  Wall. 

§  10,  note.rjl  583.  19  L.  ed.  494. 

i6Township  of  Pine  Grove  v.  Tall-  eupshur   Co.    v.    Rich.    135    U.    S. 

cott,  19  Wall.  678,  22  L.  ed.  227.  477,  34  L.  ed.   196,  10  Sup.  Ct.  Rep. 

iTElmwood  V.  Marcy,  92  V.  8.  292,  054. 

23  L.  ed.  710.  "Lavin   v.    Emigrant,   etc.   Bank,   1 

i«Post,  §    14.  Fed.  652,  18  Blatchf.  1. 

20See  ante,  §  10,  notes.   [1]    [p]  sHollingsworth  v.  Parish  of  Tensas. 

lAmis  V.  Smith,  16  Pet.  314,  10  L.  17   Fed.   112,  4  Woods  280. 
ed.  973. 

109 


§   12   [g]  FEDERAL   JURISDICTION    IN    GENERAL.  [Code  Fed. 

decision  that  a  national  soldiers'  home  is  not  within  the  exclusive  jurisdic- 
tion of  the  Federal  government  is  not  conclusive.9  Where  the  local  laws 
of  evidence  conflict  with  laws  prescribed  by  Congress,  they  are  not  fol- 
lowed. The  Federal  law  as  to  privileged  communications,! o  or  modes  of 
proof,!  1  or  the  competency  of  witnesses,! 2  control,  as  against  conflicting 
State  laws.  In  bankruptcy  proceedings  the  Federal  law  furnishes  the 
rule  of  decision  as  to  all  matters  therein  provided.!  3  Most  if  not  all 
questions  arising  in  admiralty  and  Federal  criminal  causes  are  determined 
without  regard  to  any  State  laws.i4 

[gj     In  trials  at  common  law. 

The  .section  excludes  both  admiralty  and  equity  causes.  In  the  former 
the  law  administered  is  chiefly  the  ancient  maritime  law  as  modified  by 
Congress  and  the  courts.! «  In  equity  cases  the  absence  of  any  provision 
making  the  local  law  the  rule  of  decision  has  in  some  cases  been  deemed 
to  indicate  that  the  Federal  courts  may  declare  a  law  of  their  own.  But 
the  authorities  have  in  general,  not  failed  to  recognize  the  binding  force  of 
the  local  laws  as  to  all  matters  within  the  law  making  power  of  the 
State.  17 

[h]  State  court's  construction  of  State  law  binding  on  error  to  State  court. 
The  above  enactment  of  Congress  applies  only  to  cases  tried  in  the 
Federal  courts.  On  error  from  the  Supreme  Court  to  the  highest  State 
court  the  sole  question  is  whether  the  latter's  proceedings  in  a  cause  have 
denied  any  Federal  right.  All  other  questions  are  concluded  by  the  State 
court's  decision.  The  question  is  not  the  correctness  of  the  State  court's 
interpretation  and  administration  of  its  local  jurisprudence,  but  whether, 
as  admini-stered,  any  Federal  right  is  infringed.  Hence  the  soundness  of 
the  State  court's  interpretation  of  its  law  is  assumed.!  8  If  the  question  is 
as  to  the  validity  of  a  State  law  under  the  Federal  constitution,  the  con- 
struction placed  thereon  by  the  State  court  is  binding  and  the  question 
is,   does   the   law   as   so   construed    Anolate    Federal    limitations.! 9     If    the 

9ln  re  Kelly,  71  Fed.  549.  168  U.  S.  680,  42  L.  ed.  622,  18  Sup. 

loConneoticut.     etc.     Ins.     Co.     v.  Ct.   Rep.    229;    Turner   v.    Board   of 

Schaefer.  94  U.  S.  45S,  24  L.  ed.  251.  Commissioners  of  Wilkes  Co.  173  U. 

11  McLennan  v.  Kansas  Citv  Ry.  22  S.  463,  43  L.  ed.  768,  19  Sup.  Ct.  Rep. 

Fed.   199;    Sage  v.  Ta.uszky,'21   Fed.  464;    Taylor  v.   Beckham,    178   U.   S. 

Cas.  146.  574,  44  L.  ed.  1199,  20  Sup.  Ct.  Kep. 

i2Rice    v.   Martin,    8    Fed.    478,    7  890,  1000. 
Sawv.  337;   Stephens  v.  Bernays,  42        isStryker  v.   Goodnow,   123   U.   S. 

Fed."  490.  "  536,   31   L.   ed.   194,   8   Sup.   Ct.  Rep. 

!^See  ante,  §  11,  note,   [e]  207;    Montana,   etc.  Co.   v.   St   Louis 

!4See  ante,  §  11.  Co.    152  U.  S.  165,  38  L.  ed.  398,  14 

isSee  ante,  §  11.  Sup.  Ct.  Rep.   500;    Chicago,  etc.  R. 

iTSee  ante.  §  10,  notes,   [a]    [b]  R.  v.  Minnesota.  134  U.  S.  456,  33  L. 

!sWest,    etc.   Co.   v.    Dix,   6    How.  ed.  980,  10  Sup.  Ct.  Rep.  702;  Balti- 

535,  12  L.  ed.  535:  Palmer  v.  McMa-  more  T.  Co.  v.  Baltimore,  etc.  R.  R. 

hon,  133  U.  S.  065,  33  L.  ed.  772,  10  151  U.  S.  138,  38  L.  ed.  102.  14  Sup. 

Sup.   Ct.   Rep.   324;    Bacon  v.   Taxes,  Ct.    Rep.    294;    Tullis    v.    Lake,    etc. 

163  U.  S.  219,  41  L.  ed.  132,  16  Sup.  R.  R.  175  U.  S.  353.  44  L.  ed.  195,  20 

Ct.  Rep.  1023;  Castillo  v.  McConnico,  Sup.  Ct.  Rep.  138;  Missouri,  etc.  R. 

110 


I 


I 


Proccdare]  STATE  LAWS  AS  RULES  OF  DECISION.  §   12    [i] 

State  court  holds  a  portion  of  a  law  void  but  declares  the  rest  severable 
R,nd  enforceable,  this  conclusion  binds  the  Supreme  Court.20  If  the  State 
court  declares  that  two  provisions  of  a  law  must  be  read  together  this  is 
binding  on  the  Supreme  Court.  1  If  the  construction  of  the  State  court 
renders  the  State  law  constitutional,  the  Supreme  Court  will  follow  it; 2 
and  if  it  renders  it  unconstitutional  it  is  binding  although  the  construc- 
tion seems  unwarranted,  and  the  law  must  be  declared  invalid. 3  On  error 
to  a  State  court  the  Supreme  Court  must  accept  the  State  court's  decision 
that  a  law  or  ordinance  is  valid  under  the  State  constitution. 4 

[i]     But  not  its  legal  effect  under  the  Federal  constitution. 

But  while  the  Supreme  Court  is  thus  concluded  as  to  the  moaning  of 
a  State  law  and  the  circumstances  to  which  it  is  applicable,  the  question 
whether  as  thus  construed  and  applied,  its  legal  effect  is  to  violate  any 
Federal  limitation,  is  before  the  Supreme  Court  for  fullest  invottigation 
uncontrolled  by  any  conclusions  of  the  State  court  in  that  or  other  cases. 
^V^^ere  a  laws  is  claimed  to  impair  the  obligation  of  a  contract,  the 
Supreme  Court  decides  for  itself,  both  as  to  the  alleged  impairment  and  as 
to  the  existence  of  the  alleged  contract.7  Hence  a  State  court's  opinion 
that  a  second  grant  of  a  bridge  franchise  does  not  impair  the  first,  is  not 
binding;  8  nor  its  opinion  as  to  whether  an  apportionment  of  viaduct  ex- 
penses among  different  railroads  violated  their  prior  contract  rights. 9 
A  State  court's  opinion  that  the  repeal  of  a  lottery  franchise  violates  the 
Federal  constitution  is  of  even  less  force. 10     In  determining  the  existence 

R.  V.  Nebraska,  164  U.  S.  414.  41  L.  77;   Chicago,  etc.  R.  R.  v.  Nebraska, 

ed.    494,    17   Sup.   Ct.   Rep.    130;    St.  170  U.  S.  77,  42  L.  ed.  948,  18  Sup. 

Louis,   etc.  R.  R.  v.  Paul,  173  U.   S.  Ct.  Rep.  513.     See  post,   §  38.C  1 

408,  43  L.  ed.  748,   19  Sup.  Ct.  Rep.  eThere  is  no  jurisdiction  on  writ  of 

419:  W.  W.  Cargill  Co.  v.  Minnesota,  error  if  the  impairment  was  by  anv- 

180  U.  S.  466.  45  L.  ed.  626,  21   Sup.  thing  else  than  a  law.     New  Orleans 

Ct.  Rep.  428;  Morley  v.  Lake.  etc.  Hy.  W.  W.  v.  La.  Sugar  Co.  125  U.  S.  36, 

146  U.  S.  166,  56  L.  ed.  925,  13  Sup.  31   l.  ed.   614,  8   Sup.   Ct.  Rep.   741. 

Ct.  Rep.  54;  Fallbrook  Irrig.  Dist.  y.  TLjfg  j^g    q^    ^    Debolt,   16  How. 

Bradley,    164    U.    S.    154,    41    L.    ed.  432^  14  l.  ed.  1004;  Bryan  v.  Board 

369,  17  Sup.  Ct.  Rep.  56.  ^j    Education,    151    U.   S.    650,   38   L. 

20Tullis  V.  Lake,  etc.  R.  R    175  U.  p,|    302,   14  gup.   Ct.  Rep.  469;   Citi- 

S.    353,   44   L.    ed.    195,    20    Sup.   Ct.  ^^ns  Sav.  Bank  v.  Owensboro,  173  U. 

fv^^'f^j  f     -R      ,  n^    ^    V     n       ^-   ^'^^'    ^^    ^-    ^^-    ^^'    ^^    ^up.    Ct. 

1  First   Nat.   Bank  v.   Chehahs   Co.    ^        539   571     jjall  v.  Wisconsin,  103 

n?^-  ^-rii^'  ^^  ^-  ''^-  ^''""'  ^^  '^"P-    U.  S.  8,  26  L.  ed.  304;  Bridge  Prop'rs. 

,^7;  .T-f  T,  n     ic,   TT    c    Q70     ''' '  Hobokcu  Co.  1  Wall.  145,  17  L.  ed. 

2Noble  V.  Mitchell,   I64  U.  S.  372,    f.~(,       y,   +1       cj-  +  *.•  i 

^1    T       J     A'!^    IT  c         r^i    T.         1  in      5/6.      If   the   State   courts   construc- 
41  L.  ed.  472,  17  Sup.  Ct.  Rep.  110;    ,.         «      oa  ^      j.  *.   ^^        i  1  i-  1       ii 
Chesapeake,    etc.    Rv.    v.    Kentucky,   tion  of  a  State  statute  establishes  the 
179  U.  S.  395,  45  L.^ed.  247,  21  Sup.    contract  it  w-iU  be  followed:   Powers 
Ct   Ren    101  '  i-     y    Detroit,  etc.  R.  R.  U»i   U.  S.  543, 

3 Wabash,  p'  •.  R.  R.  v.  Illinois,  118    ^^  L.  ed.  860,  26  Sup.  Ct.  Rep.  556. 
U.  S.  565,  30  L.  ed.  244,  7   Sup.  Ct.        ^Wright  v.  Nagle,  101  U.  S.  793,  25 
Rep.  7.  L-  ed.  921. 

^Crowley  v.  Christensen,  137  U.  S.  sChicago.  etc.  R.  R.  v.  Nebraska, 
92,  34  L.  "ed.  620,  11  Sup.  Ct.  Rep.  170  U.  S.  68.  42  L.  ed.  952,  18  Sup. 
13;  Brown  v.  New  Jersey,  175  U.  S.    Ct.  Rep.  517. 

174,  44  L.  ed.   119,  20  Sup.  Ct.  Rep.        10 Douglas  v.  Kentucky,  168   LL  S. 

Ill 


§   12   [i] 


FEDERAL    JURISDICTION    IN    GENERAL. 


[Code  Fed. 


of  an  alleged  contract,  a  State  court's  opinion,  however  frequently  ex- 
pressed, that  a  contract  does  not  exist  because  of  want  of  power  of 
the  legislature  to  make  it;ii  or  because  it  is  contrary  to  public  policy 
and  void;  12  or  because  a  corporate  charter  was  granted  subject  to  the 
reserve  right  to  alter  and  amend ;  1 3  or  because  the  statute  under  which 
it  is  claimed  to  arise  has  been  otherwise  construed  by  the  State  courts,i4 
is  not  binding  and  the  Supreme  Court  decides  the  question  for  itself.  The 
principle  which  requ'.ves  the  Supreme  Court  to  disregard  State  decisions  in 
deciding  whether  the  legal  effect  of  State  action  violates  the  Federal  con- 
stitution, is  not  confined  to  cases  arising  under  the  obligation  clause, 
Where  it  is  claimed  that  a  2Jrobate  court's  sale  of  a  living  person's  prop- 
erty deprives  that  person  of  property  without  due  process  of  law,  the 
fact  that  the  State  court  upholds  the  power  of  the  local  probate  court 
to  adjudge  a  person  dead  and  then  sell  his  property,  is  not  conclusive. is 
Where  a  municipal  ordinance  as  to  licensing  of  laundries  is  attacked  under 
the  fourteenth  amendment  as  conferring  an  arbitrary  power  to  deny  cer- 
tain classes  of  persons  a  right  to  conduct  a  lawful  business,  the  State 
court's  opinion  that  such  is  not  its  legal  effect,  is  not  binding.is  Neither 
is  the  Supreme  Court  bound  by  the  State  court's  opinion  that  a  given 
statute  is  in  the  nature  of  a  police  regulation. it  In  cases  of  this  sort  the 
State  court  decisions  have  undoubtedly  a  persuasive  force.  The  Supreme 
Court  will  often  adopt  the  same  view, is  and  will  not  overrule  a  State  de- 
cision unless  clearly  wrong.is  It  has  been  said  such  State  decisions  are 
even  conclusive  where  so  firmly  established  as  to  constitute  a  rule  of  pi'op- 
erty;20  but  this  cannot  be  accepted  as  meaning  that  the  Supreme  Court 


.501,  42  L.  ed.  557,  18  Sup.  Ct.  Rep. 
203. 

1  iNorthwestern  Univ.  v.  People,  99 
U.  S.  321,  25  L.  ed.  389;  Jefferson 
Branch  Bank  v.  Skellv,  1  Black,  443, 
17  L.  ed.  173:  Mobile,  etc.  R.  R.  v. 
Tennessee,  153  U.  S.  492,  38  L.  ed. 
793.  14  Sup.  Ct.  Rep.  9GS;  Stearns 
V.  Minnesota,  179  U.  S.  223,  45  L. 
ed.  162,  21  Sup.  Ct.  Rep.  73. 

i2Delmas  v.  Insurance  Co.  14  Wall. 
668,  20  L.  ed.  759. 

i3Louisville  Gas  Co.  v.  Citizens  Co. 
115  U.  S.  697,  29  L.  ed.  515,  6  Sup. 
Ct.  Rep.  271;  Mobile,  etc.  R.  R.  v. 
Tennessee,  153  U.  S.  495,  38  L.  ed. 
796,  14  Sup.  Ct.  Rep.  971. 

i4ljoiiisville,  etc.  R.  R.  v.  Palmes, 
109  U.  S.  257,  27  L.  ed.  926,  ?  Sup. 
Ct.  Rep.  201;  McGahev  v.  Virginia, 
135  U.  S.  667,  34  L.  ed'.  305,  lo'Sup. 
Ct.  Rep.  974;  McCullouwh  v.  Virginia, 
172  U.  S.  109.  43  L.  ed':  384.  19  Sup. 
Ct.  Rep.  136;  Bienville  Water  Co.  v. 
Mobile.  186  U.  S.  220,  46  L.  ed. 
1132.  22  Sup.  Ct.  Rep.  820. 

15 Scott   V.  McNeal,    154  U.   S.   45, 

1 


38  L.  ed.  901,  14  Sup.  Ct.  Rep.  1112. 

i6Yick  Wo  V.  Hopkins,  118  U.  S. 
366,  30  L.  ed.  220,  6  Sup.  Ct.  Rep. 
1069. 

17 Atchison,  etc.  R.  R.  v.  Matthews, 
174  U.  S.  100,  43  L.  ed.  911,  19  Sup. 
Ct.  Rep.  611. 

isMemphis  Gas  Co.  v.  Shelby  Co. 
109  U.  S.  398,  27  L.  ed.  976,  3  Sup. 
Ct.  Rep.  205;  Hoadley  v.  San  Fran- 
cisco, 124  U.  S.  645,  31  L.  ed.  556, 
8  Sup.  Ct.  Rep.  662;  Vicksbuig. 
etc.  R.  R.  V.  Dennis,  116  U.  S.  667, 
29  L.  ed.   771,   6  Sup.   Ct.  Rep.   626. 

isRailroad  Cos.  v.  Gaines,  97  U. 
S.  709,  24  L.  od.  1094;  Freeport  W. 
Co.  V.  Freeport,  180  U.  S.  595,  45  L. 
ed.  687,  21  Sup.  Ct.  Rep.  493:  Board 
of  Liq'iidation  v.  Louisiana,  179  U.  S. 
638.  45  L.  ed.  354,  21  Sup.  Ct.  Rep. 
263;  Wilson  v.  Standefer,  181  U.  S. 
412,  46  L.  ed.  612,  22  Sup.  Ct.  Re;.. 
384:  Yazoo,  etc.  R.  R.  v.  Adams.  181 
U.  S.  580.  45  L.  ed.  1011,  21  Sun. 
Ct.  Rep.  729. 

20Louisville,  etc.  R.  R.  v.  Palmes, 
109  U.  S.  257,  27  L.  ed.  926,  3  Sup. 
12 


Procedure]  IS  THERE  A  FEDERAL  COMMON  LAW.  i   13 

cannot  in  such  cases  exercise  its  independent  judgment.  If  the  State 
decision  sustains  the  applicability  of  a  statute  to  a  corporation  and, 
with  that  assumption,  a  contract  appears  on  the  face  of  the  statute,  sucb 
State  decision  will  be  folio  wed.  21 

[j]     In  cases  where  they  apply. 

This  clause  seems  to  give  the  Federal  courts  a  discretion  1  somewhat 
similar  to  that  created  by  the  act  adopting  the  State  practice  in  com- 
mon law  cases  "as  near  as  may  be."  2  The  State  law  requiring  on  the  death 
of  a  defendant,  presentation  of  a  claim  against  his  estate,  does  not  apply 
to  a  suit  by  the  government  against  a  surety  on  an  official  bond.3  A 
State  statute  of  limitations  unreasonably  discriminating  against  Federal 
causes  of  action  might  be  disregarded  under  this  clause.* 

§  13.  — is  there  a  Federal  common  law. 

There  is  no  common  law  of  the  United  States,  in  the  sense  of 
a  national  unwritten  customary  law  resting  merely  in  judicial  de- 
cisions, as  to  those  matters  of  controversy  that  are  committed  to  the 
law  making  power  of  the  individual  States.'''  The  restriction  of 
Federal  powers  to  those  granted  and  their  necessary  incidents,  and 
the  reservation  of  all  others  by  the  States  and  by  the  people, 
effectually  forbids  it."^^^  As  to  matters  of  national  concern,  how- 
ever, and  committed  to  the  law-making  power  of  the  nation,  there 
is  some  room  for  the  growth  of  an  unwritten  Federal  law  resting 
in  the  decisions  of  the  Federal  courts,  subject,  however,  to  this 
limitation,  viz.,  that  the  courts  may  not  usurp  legislative  powers 
vested  by  the  Constitution  in  Congress.  Since  by  our  system  of 
government,  power  to  make  laws  is  in  the  legislative  department, 
it  is  for  Congress,  and  not  the  courts,  to  regulate  commerce,  define 
offenses  against  the  United  States  and  otherwise  prescribe  the 
rules  of  conduct  that  must  govern  the  citizen  in  his  relation  to  the 
national  government.  The  Federal  courts  have  not  the  latitude 
of  action  nor  the  quasi  legislative  power  possessed  by  the  courts  of 
England  in  interpreting  and  declaring  the  common  law.  While 
therefore,  they  may,  and  have,  resorted  to  the  common  law  of  our 
ancestors  for  principles  of  construction   and  interpretation,   and 

Ct.   Rep.   201;    Shelbv   Co.  v.   Union  2  See  post,  §  900. 

Bank,  161   U.   S.   151",  40  L.  ed.   G52.  sPond   v.  United   States,   HI   Fed. 

16  Sup.  Ct.  Rep.  .558.  989,  40  C.  C.  A.  582. 

2iPowers  V  Detroit,  etc.  R.  R.  201  ^Campbell  v.  City  of  Haverill,  155 

U.  S.  543.  50  L.  ed.  860.  U.    S.    610,   39    L.   ed.   280,    15    Sup. 

iCampbell  v.  Citv  of  Haverill,  155  Ct.  Rep.  219. 

U.  S.  610.  39  L.  ed.  280,  15  Sup.  Ct.  7ante,   §  10. 
Rep.  219. 

Fed.   Proc— 8.  113 


S   13    [a]  FEDERAL   JURISDICTION    IN    GENERAL.  ICodc   Fed. 

generally  in  shedding  light  upon  the  fundamental  law  which  they 
must  construe,  and  the  statutory  law  which  they  must  interpret 
and  apply,^'']  it  is  plainly  not  competent  for  them  to  assume 
legislative  or  quasi  legislative  powers  constitutionally  committed 
to  Congress.  Subject  to  this  limitation,  however,  there  exists  a 
legitimate  field  for  the  development  of  a  national  law  resting  in 
judicial  decisions  supplementing  and  elaborating  the  written  law 
and  consisting  in  the  main  rather  of  legal  principles  than  of  rules 
of  conduct J°^"f*^^  Aside  from  matters  within  the  law-maJving 
power  of  the  States  or  of  the  nation,  there  are  other  matters  of 
controversy  which  the  constitution  makes  cognizable  in  the  Federal 
courts.  In  such  cases  it  would  seem  that  the  Federal  courts  may 
resort  to  established  principles  of  law  drawn  from  the  common 
law  or  the  civil  law  or  from  international  law,  or  the  law  maritime, 
recognized  and  accepted  as  sound  by  both  litigant  parties,  and  in 
so  doing  develop  a  body  of  law  of  a  judicial  nature  and  essentially 
national  in  character. "^^^^ 
Author's  section. 

[aj     No  general  common  law  of  the  United  States. 

While  it  is  well  settled  that  our  ancestors  brought  with  them  upon 
their  immigration,  so  much  of  the  common  law  as  was  suited  to  their  new 
environment, 8  it  is  equally  well  settled  that  this  adoption  of  the  common 
law  was  by  each  colony  separately  and  not  by  the  settlers  collectively. 
It  was  a  common  law  of  the  colonies  and  of  the  several  States,  and 
not  of  the  aggregate  federation  that  existed  at  the  time  of  the  adoption 
of  the  Federal  Constitution. 9  The  Federal  Constitution  does  not  recog- 
nize and  adopt  the  common  law  in  the  same  way  that  it  adopts  the  law 
maritime.io  The  references  therein  to  law  and  equity  are  not  a  recog- 
nition of  the  existence  of  a  Federal  common  law  as  a  standard  for  the 
measurement  of  rights  in  controversy  but  merely  a  recognition  of  tlie 
existence  of  two  distinct  modes  of  proceeding  for  the  ascertainment  of 
rights.ii  And  as  the  Federal  government  has  merely  certain  granted 
powers,  there  can  be  no  basis  for  the  assertion  that  the  common  law  of 
England  exists  as  part  of  the  law  of  the  nation  supported  by  the  nation's 
mandate  and  to  be  respected,  administered  and  enforced  by  its  officers  uni- 
formly throughout  the  land.     It  has  fr(!quently  been  declared  that  there  is 

sPawlet  v.  Clark,  9  Cranch,  333,  3  Rep.  569;   Bucher  v.  Cheshire,  R.  R. 

L.  ed.  735;  Van  Ness  v.  Pacard,  2  Pet.  125  U.  S.  584,  31  L.  ed.  795,  8  Sup. 

144,  7  L.  ed.  374;  Patterson  v.  Winn,  Ct.  Rep.  974. 

5  Pet.  241,  8  L.  ed.  108;  United  States  loSee  ante,  §  11. 

v.  Reid,  12  How.  363,  13  L.  ed.  1023.  nQatton   v.    Chicago,    etc.   Ry.    95 

nVheaton  v.  Peters,  8  Pet.  658,  8  Iowa,   127,  63   N.   W.   594,  28   L.R.A. 

L.  ed.   1055;    Smith  v.  Alabama,  124  561.     Contra,  see  Murray  v.  Railroad, 

U.  S.  478,  31   L.  ed.  508,  8  Sup.  Ct.  62  Fed.  28. 

114 


Procedure]  IS  THERE   A  FEDERAL  COMMON  LAW.  §   13   [b] 

no  common  law  of  the  United  States;  12  although  the  proposition  has  been 
disputed;  13  and  the  cases  in  which  the  Supreme  Court  has  held  that  the 
court  of  claims,  must,  in  the  absence  of  statute,  be  governed  by  common 
law  rules  of  evidence,  have  been  cited  as  proof  that  there  is  a  Federal 
common  law.K  Hence,  although  bribing  a  Federal  officer  or  libeling  the 
president,  or  other  act  involving  a  Federal  officer  or  the  Federal  gov(!rn- 
ment  would  be  an  offense  by  principles  of  the  common  law,  it  is  not 
punishable  as  a  crime  unless  Congress  so  provides,  because  there  are  no 
common  law  crimes  against  the  Federal  government. is  Though  there 
may  be  a  right  of  copyright  at  common  law,  there  is  none  in  the  United 
States,  the  right  is  .statutory,  created  by  the  act  of  Congress  of  1790.16 

[b]  Application  of  common  law  principles  to  interpretation  of  statutory 
or  fundamental  law. 
Though  there  is  no  Federal  common  law  in  this  general  sense,  it  is 
nevertheless  true  that  the  Federal  courts  have  in  numerous  cases  turned 
to  the  common  law  for  the  meaning  of  words  1  and  of  phrases,  for  dis- 
tinctions between  law  and  equity,  for  principles  of  construction, 2  for  the 
ascertainment  of  some  domestic  or  political  status  with  which  the  Con- 
stitution or  some  statute  deals,  and  for  various  other  judicial  purposes.  The 
propriety  of  this  is  obvious.  Our  law  idiom  comes  largely  from  the  com- 
mon law,  and  its  meaning  is  best  understood  by  reference  thereto.     The 

i2Whea.ton  v.  Peters,  8  Pet.  058,  513;  Gatton  v.  Chicago,  etc.  Ry.  95 
659,  8  L.  ed.  1055;  Kendall  v.  United  Iowa,  133,  63  N.  W.  596,  28  L.R.A. 
States,  12  Pet.  621,  9  L.  ed.  1219;  556:  People  v.  Folsom,  5  Cal.  374; 
Pennsylvania  v.  Bridge  Co.  13  How.  United  States  v.  Garlinghouse,  4  Ben. 
563,  14  L.  ed.  268;  Parkersburg,  etc.  205,  Fed.  Cas.  No.  15,189. 
Co.  V.  Parkersburg,  107  U.  S.  700,  27  i^Duponceau  Jurisdiction  of  Fed- 
L.  ed.  588,  2  Sup.  Ct.  Rep.  732;  Bu-  eral  Courts,  85-90;  Murray  v.  Rail- 
clier  V.  Clwshire  R.  R.  125  U.  S.  583,  road,  62  Fed.  24.  See  also  1  Kent's 
31  L.  ed.  799,  8  Sup.  Ct.  Rep.  974;  Commentaries,  311,  322;  North  Amer- 
Smith  V.  Alabama,  124  U.  S.  465.  ican  Review,  July,  1825. 
31  L.  ed  508,  8  Sup.  Ct.  Rep.  569;  i4Moore  v.  United  States,  91  U.  S. 
Western  U.  T.  Co.  v.  Call  Pub.  270,  23  L.  ed.  346;  United  States  v. 
Co.  181  U.  S.  101,  45  L.  ed.  770,  Clark,  96  U.  S.  37,  24  L.  ed.  696.  See 
21  Sup.  Ct.  Rep.  561 ;  United  States  Murray  v.  Railroad,  62  Fed.  39.  But 
V.  Worrall,  2  Dall.  384,  1  L.  ed.  426,  the  common  law  was  adopted  by  Con- 
Fed.  Cas.  No.  16,766:  United  Stales  V.  gress  for  the  District  of  Columbia 
Hudson,  7  Cranch.  32.  3  L.  ed.  259;  in  1801.  Van  Ness  v.  Hyatt,  13  Pet. 
United  States  v.  Coolidge,  1  Wheat.  298,  10  L.  ed.  168. 
415,  4  L.  ed.  124:  Muliers  Case,  17  i^See  ante,  §  11,  note,  [d] 
Fed.  Cas.  976;  Lorman  v.  Clarke,  2  leWheaton  v.  Peters,  8  Pet.  661, 
McLean,    572,    Fed.    Cas.    No.    8,516;  8  L.  ed.  1081. 

United   States  v.  Railroad  Bridge,   6        iPeltibone    v.    United    States,    148 

McLean,  517,   Fed.   Cas.   No.    16.114;  IT.  S.  203,  37  L.  od.  419,  13  Sup.  Ct. 

United  States  v.  New  Bedford  Bridge,  Rep.  542;  United  States  v.  Wong  Kim 

1  Wood.  &  M.  447.  Fed.  Cas.  No.  15.-  Ark,    169    U.    S.    654,   42    L.   ed.    893, 

807;   In  re  Barry,  42  Fed.  119;  Swift  18  Sup.  Ct.  Rep.  459. 
V.  Pliiladelphia  &  R.  R.  58  Fed.  868;        2E.  g.  the  common   law   rule  that 

Same  v.  Same,  64  Fed.  60;  Newport  the    sovereign    is    not    bound    by    a 

News   Co.    V.    Howe.    52    Fed.    366,    3  statute    unless    particularly    named: 

C.  C.  A.  121 ;   Phipps  V.  Harding,  70  Dollar  Sav.   Bank   v.    United    States, 

Fed.  475,  17  C.  C.  A.  203,  30  L.R.-^.  19  Wall.  239,  22  L.  ed.  SO. 

115 


§   13   [c]  FEDERAL    JURISDICTION    IN    GENERAL.  [Code  Fed. 

framers  of  the  Constitution  and  the  members  of  the  legislature  are  very 
properly  deemed  to  be  familiar  with  its  definitions,  rules,  and  principles,  as 
part  of  our  history  as  a  people  and  part  of  our  experience  as  citizens  of  the 
various  States,  and  to  have  legislated  with  more  or  less  reference  to  it.  In- 
deed it  has  been  truly  said  that  much  of  our  written  law  could  not  be  un- 
derstood without  referring  to  it.3  The  statement  of  Mr.  Justice  Matthews 
is  therefore  very  plainly  correct,  that  the  code  of  constitutional  and 
statutory  construction  which  is  gradually  formed  by  the  judgments  of 
Federal  courts  in  the  application  of  the  Constitution,  laws  and  treaties, 
has  for  its  basis  so  much  of  the  common  law  as  may  be  implied  in  the  sub- 
ject, and  constitutes  a  common  law  resting  on  national  authority.* 

[c]  As  to  matters  within  national  legislative  power  on  which  Congress 
has  not  acted. 
There  are  moreover  yet  other  directions  in  which  the  development  of  a 
national  unwritten  law  is  proceeding.  As  is  elsewhere  shown,  the  Fed- 
eral courts  are  not  bound  to  follow  State  laws  or  decisions  as  to  matters 
within  the  law  making  power  of  the  nation.  6  In  many  such  cases  Con- 
gress has  not  legislated  fully  or  not  acted  at  all;  and  it  is  a  difficult  ques- 
tion to  determine  to  what  extent  the  Federal  courts  may  resort  to  and 
adopt  common  law  rules  in  deciding  such  matters  of  controversy.  Plainlj' 
they  cannot  assume  any  of  the  legislative  powers  constitutionally  con- 
ferred upon  Congress.  Thus  they  cannot  usurp  the  fimctions  of  Congress 
by  declaring  acts  to  be  crimes  against  the  government  in  the  absence  of 
statute,  because  criminal  at  common  law.'?  They  cannot  entertain  suit 
against  an  interstate  carrier  for  a  discrimination  in  charges  contrary  to  an 
accepted  rule  of  the  common  law,  in  the  absence  of  an  act  of  Congress 
forbidding  it,  if  such  a  decision  would  amount  to  a  judicial  regulation  of 
commerce,  since  it  is  for  Congress  and  not  the  Federal  courts  to  regu- 
late interstate  commerce. 8  It  is  not  easy  to  draw  the  line  between  ju- 
dicial legislation  forbidden  by  the  distribution  of  powers  in  the  consti- 
tution, and  the  more  strictly  judicial  function  of  interpretation,  definition 
and  construction,  but  the  distinction  is  important  in  this  connection. 
WTiile  some  of  the  cases  asserting  a  right  to  disregard  the  laws  and 
decisions  of  the  States  go  further  than  may  seem  warranted,^  it  is  not  open 
to  doubt  that  as  to  national  matters  there  is  a  legitimate  field  for  the 
development  of  a  body  of  customary  national  law  resting  in  judicial  de- 
cisions drawn  largely  from  the  old  common  law,  and  which  may  with 
propriety  be  termed  a  national  common  law.     Already  it  has  been  asserted 

sMoore  v.  United  States,  91  U.  S.  95  Iowa,  133,  63  N.  W.  596,  28  L.R.A. 

274,  23  L.  ed.  346.  556;   Swift  v.  Railroad,  58  Fed.  868. 

4 Smith  V.  Alabama,  124  U.  S.  465,  Contra,  see  Murray  v.  Chicago,  etc. 
31  L.  ed.  588,  8  Sup.  Ct.  Rep.  569;  R.  R.  62  Fed.  24.  '  These  cases  dis- 
united States  V.  Wong  Kim  Ark.  169  cuss  the  question  of  a  Federal  coni- 
U.  S.  654,  42  L.  ed.  893,  18  Sup.  Ct.  mon  law  at  length,  but  do  not  refer 
Rep.  459.  to   the    principle   laid   down   by   the 

6See  ante,  §  10.  text  and  which  seems  to  the  writer 

7See  ante,   §  11  note,   [d]  properly  the  controlling  one. 

8See  Gatton  v.  Chicago,  etc.  R.  R.         sSee'ante,  §  10,  note,   [r] 

116 


I 


Procedure]  IS  THERE  A  FEDERAL  COMMON  LAW.  §   13    [e] 

that  the  Federal  courts  may  decide  for  themselves  what  constitutes  a 
contract  of  carriage  on  an  interstate  shipment,  and  the  liabilities  of  con- 
necting carriers;  10  whether  a  carrier's  stipulation  for  exemption  from  lia- 
bility for  negligence  is  contrary  to  public  policy; n  whether  an  agree- 
ment to  procure  a  government  contract  is  contrary  to  public  policy;  12 
or  a  contract  for  commissions  by  an  agent  of  a  foreign  government ;i3 
or  any  other  agreement  in  fraud  of  the  Federal  laws  or  contravening 
the  public  policy  of  the  United  States.i*  The  Federal  courts  will  declare 
a  contract  in  aid  of  rebellion,  void  regardless  of  State  law.is.  In  short  it 
is  clear  that  there  is  a  public  policy  of  the  United  States  declared  in  the 
decisions  of  the  Federal  courts.is  in  other  cases  the  common  law  rule 
as  to  suvivorship  of  a  cause  of  action  has  been  applied,  in  the  absence  of 
act  of  Congress,  to  a  qui  tam  action  under  the  copyright  law.iT  The  legis- 
lation of  Congress  respecting  patents,  copyrights,  trade  marks  and  trade 
names,  naturalization  and  citizenship,  postoflSces  and  postroads,  and  vari- 
ous other  matters,  is  supplemented  in  a  variety  of  ways  by  the  unwritten 
law  developed  in  the  decisions  of  the  Federal  courts,  and  drawn  from 
common  law  and  other  sources. 

[d]  In  admiralty  cases. 

Congress  is  not  given  express  power  to  prescribe  the  maritime  law, 
though  it  is  declared  to  have  full  power  to  alter  and  modify  it.i  The  con- 
stitution assumes  the  existence  of  the  law  maritime  and  the  Federal  courts 
interpret  and  apply  it  with  all  the  latitude  of  power  possessed  by  the 
common  law  courts  of  England  in  declaring  rules  of  common  law.  The 
principle  which  denies  them  quasi  legislative  power  in  other  cases  already 
considered  does  not  apply  in  admiralty  matters.  Plainly  there  is  a  national 
common  law  of  the  seas. 

[e]  Matters  of   controversy  outside  the  law-making  power  of   State  or 

nation. 
Suits  by  States  in  the  Supreme  Court  may  present  questions  not  de- 
terminable by  either  State  or  Federal  laws. 2  Suits  by  or  against  foreign 
ambassadors  or  consuls,  or  suits  in  admiralty,  may  also  present  such 
questions.  "While  cases  of  this  sort  seldom  arise,  this  jurisdiction  of  the 
Federal  courts  must  be  reckoned  with  as  a  legitimate  source  of  unwrit- 
ten Federal  law  resting  in  the  decisions  of  the  Federal  Supreme  Court. 

lOMvrick  v.  Michigan  C.  R.  R.  107  How.  52,  14  L.  ed.  316;  Trist  v.  Child, 

U.  S.  109,  27  L.  ed.  32.5,  1   Sup.   Ct.  21  Wall.  448,  22  L.  ed.  623;  Prime  v. 

Rep.  425.  Brandon,    etc.    Co.    16    Blatchf.    406, 

iiEells   V.    St.   Louis,   etc.   Ry.   52  Fed.  Cas.  No.  11.421. 

Fed.  n05.                                           '  i5Hanaver  v.  Doane.  12  Wall.  342. 

12T00I    Co.   V.   Xorris,   2   Wall.   54,  20  L.  ed.  439. 

17  L.  ed.  868;    McGuire  v.   Corwine.  leMurrav  v.  Railroad.  62  Fed.  40. 

101  U.  S.   Ill,  25  L.  ed.  901.  ivSchrei'ber  v.  Sharploss.  110  U.  S. 

i30scanyan  v.  Arms  Co.  103  U.  S.  80.  28  L.  ed.  65.  3  Sup.  Ct.  Rop.  423. 

261.  26  L.  ed.  539.  iSee  ante,  §  11. 

i4Hannay  v.  Eve,  3  Cranch,  242,  2  2See  ante.  §  11. 
L.  ed.  427:  Kennett  v.  Chambers,  14 

117 


§   14   [a]  FEDERAL   JURISDICTION    IN    GENERAL.  [Code   Fed. 

§  14.     Federal  Constitution  treaties  and  laws,  supreme. 

This  Constitutiou,  and  the  laws  of  the  United  Statesi^^^  which 
shall  be  made  in  pursuance  thereof;  and  all  treaties^'^^  made,  or 
which  shall  be  made,  under  the  authority  of  the  United  States,  shall 
be  the  supreme  law  of  the  land ;  and  the  judges  in  every  State  shall 
be  bound  thereby,  ^''^  anything  in  the  constitution  or  laws  of  any 
State  to  the  contrary  notwithstanding. 
U.  S.  Const,  art.  6,  cl.  2. 

[a]  Constitution  and  laws. 

The  object  of  the  Constitution  was  to  establish  a  government  which  to 
the  extent  of  its  powers  should  be  supreme  within  its  sphere  of  action. 5 
The  constitution,  treaties,  and  laws  made  by  the  general  government  on 
the  rights,  duties,  and  subjects  specially  enumerated  and  confided  to  their 
jurisdiction  are  exclusive  and  supreme  as  well  by  express  provisions  as  by 
necessary  implication. 6  The  government  of  the  United  States  and  that 
of  the  States  are  to  be  considered  as  parts  of  the  same  system. ■?  The 
laws  of  the  United  States  are  supreme  only  when  made  in  pursuance  of 
the  Constitution. 8  From  the  supremacy  of  the  Constitution  and  laws  of 
the  United  States  it  necessarily  results  that  the  interpretation  of  the 
laws  by  the  highest  tribunal  created  by  the  law  itself,  must  be  equally 
supreme  over  the  constitutions  and  laws  of  the  several  States. 9  The 
law  of  a  State,  though  enacted  in  the  exercise  of  powers  not  controverted, 
if  they   interfere  with  the  laws  of  Congress  must  yield  to  them.io 

[b]  Treaties  as  supreme  law. 

A  treaty  is  part  of  the  supreme  law  of  the  land  and  is  binding  on  the 
courts,!  2  and  binds  the  courts  as  much  as  an  act  of  Congress.is  it  binds 
the  nation  in  the  aggregate  and  all  its  subordinate  authorities  and  judges 

sDobbins  v.  Comrs.  of  Erie  Co.  16  137,  2  L.  ed.  60;  McCulloch  v.  Mary- 
Peters,  435,  10  L.  ed.  1022;  Ableman  land,  4  Wheat.  316,  4  L.  ed.  579. 
V.  Booth,  21  How.  520,  16  L.  ed.  175;        9 Warner  v.  The  Uncle  Sam,  9  Cal. 
3    Wis.     1 ;     Cohens    v.    Virginia,    6  697. 

\Mieat.    264.    5    L.    ed.    257;    United        lOGibbons  v.  Ogden,  9  Wheat.  1,  6 

States  V.   Rhodes,   1    Abb.  U.   S.   44;  L.  ed.  23;  17  Johns.  488;  4  Johns.  Ch. 

Fed.    Cas.    No.    16.151;    McCulloch    v.  150;   Brown  v.  Maryland,  12  Wheat. 

Maryland,  4  WTieat.  316,  4  L.  ed.  579.  419.  6  L.  ed.  678;    Sinnot  v.  Daven- 

BDodge  V.  Woolsey,  18  How.  331,  15  port,  22  How.  227,  16  L.  ed.  243;  Mc- 

L.  ed.   401 ;    Farmers   &   INI.   Bank   v.  Culloch  v.  Maryland.  4  Wheat.  437.  4 

Bearing,  91   U.  S.  29,  23  L.  ed.   196;  L.  ed.  579. 

Farrington  v.  Tennessee,  95  U.  S.  685,        isUnited  States  v.  Schooner  Reggv, 

24   L.    ed.    560;    Pensacola    T.   Co.    v.  1  Cranch,  109.  110,  2  L.  ed.  49;  Martin 

West.  U.  Tel.  Co.  96  U.  S.  1,  24  L.  v.  Hunter,  1  Wheat.  370,  4  L.  ed.  97; 

ed.    708;    Sims'    Case.    7    Cush.    285;  In  re  Sheazle,  1  Wood.  &  M.  72.  Fed. 

United  States  v.   Rhodes,  1  Abb.   U.  Cas.    No.    12,734;    United    States    v. 

S.  44,  Fed.  Cas.  No.   16.151.  New  Bedford   Bridge.  1   Wooa.  &  M. 

TStearns  v.  United  States.  2  Paine.  449,  Fed.  Cas.  No.   15,867. 
800.  Fed.  Cas.  No.  13.341;   Gilmer  v.        isUnited   States  v.   The   Peggy,   1 

Lime  Point.  18  Cal.  229.  Cranch,  103,  2  L.  ed.  49. 

s^NIarburv    v.    Madison.    1    Cranch, 

118 


Procedurel 


FEDERAL    LAWS    SUPREME. 


§    14    [c] 


of  every  State.i*  WTien  duly  ratified  it  is  the  law  of  the  land.is  It  is 
supreme  only  when  made  in  pursuance  of  that  authority  which  has  been 
conferred  upon  the  treaty-making  department,  and  in  relation  to  sub- 
jects over  which  it  has  jurisdiction.! 6  It  is  to  be  regarded  as  equivalent 
to  an  act  of  Congress  whenever  it  operates  of  itself,  without  the  aid 
of  any  legislative  provision,  i"  Federal  and  State  judges  are  bound  to 
determine  the  constitution  or  laws  of  any  State  contrary  to  a  treaty,  null 
and  void.  18  If  the  Supreme  Court  has  the  power  to  declare  a  treaty 
void,  it  will  exercise  it  only  in  a  clear  case.i^  A  treaty  in  violation  of 
the  Constitution  is  invalid. 20  Treaties  are  subject  to  subsequent  legisla- 
tion of  Congress  whether  for  their  enforcement,  modification  or  repeal.  1 
A  later  act  of  Congress  may  supersede  a  treaty,  and  a  treaty  may  super- 
-sede  a  prior  act  of  Congress. 2 

[c]     State  courts  bound  thereby. 

Federal  laws  are  as  binding  upon  State  courts  as  are  the  State  laws.* 
State  courts  are  equally  bound  to  give  effect  to  the  supreme  law  of  the 
land. 5  They  have  power  to  decide  the  repugnancy  of  a  State  law  to  the 
Federal  Constitution, 6  or  to  pass  upon  any  other  Federal  question  arising 


i4Ware  v.  Hylton,  3  Dall.  199,  1 
L.  ed.  568;  Marbury  v.  IVIadison,  1 
Cranch,  176,  2  L.  ed.  60:  Worcester  v. 
Georgia,  6  Peters,  575,  8  L.  ed.  506 ; 
Calder  v.  Bull,  3  Dall.  386;  1  L.  ed. 
648 ;  Owings  v.  Norwood.  5  Cranch, 
348;  3  L.  ed.  122;  Satterlee  v. 
Matthewson,  2  Pet.  413.  7  L.  ed. 
469;  Ex  parte  Garland,  4  Wall. 
399:  18  L.  ed.  376:  Cummings 
V.  Missouri,  4  Wall.  329,  18  L.  ed. 
365;  Reichart  v.  Phelps,  6  Wall.  166, 
18  L.  ed.  849;  Fellows  v.  Denniston, 
23  N.  Y.  420. 

isFellows  V.  Blacksmith,  19  How. 
366,  15  L.  ed.  684;   Pollard  v.  Kibbe, 

14  Peters,  414,  10  L.  ed.  520;  Doe  v. 
Branden,  16  How.  635,  U  L.  ed.  1090; 
Rhode  Island  v.  Massachusetts,  12 
Peters,  657,  9  L.  ed.  1233. 

lePeople  v.  Naglee.   1   Cal.  232.  52 

Am.   Dec.   312;    Taylor   v.   Morton,   2 

Curt.     454,     Fed.     Cas.     No.     13,799; 

Jones  V.  Walker,  2  Paine,  688,   Fed. 

Cas.    No.   7,507;    Wilson   v.   Wall.   34 

Ala.  288. 

17 Foster  v.  Neilson,  2  Peters,  314. 

7  L.  ed.  430;  United  States  v.  Arre- 

dondo,   6   Peters,   691,   8   L.   ed.   547; 

United   States  v.    Percheman,  7    Pet. 

51,   8   L.    ed.   605:    United    States    v. 

Forty  etc.  Gallons,  93  U.   S.   193,  23 

L.  ed.  846;   Gordon  v.  Kerr,  1  Wash. 

C.  C.  322,  Fed.  Cas.  No.  5.611. 
isWare   v.   Hylton,   3   Dall.   199,   1 


L.  ed.  568;  Society  v.  New  Haven, 
8  Wheat.  464,  5  L.  ed.  662. 

19 Ware  v.  Hylton,  3  Dall.  199,  1 
L.   ed.   568. 

2  0The  Cherokee  Tobacco,  11   Wall. 

620,  20  L.   ed.  227. 

iHead  Monev  Cases.  112  U.  S.  599, 
28  L.  ed.  798,  5  Sup.  Ct.  Rep.  247. 
2 The    Cherokee   Tobacco,    11    Wall. 

621,  20  L.  ed.  227;  Whitney  v.  Rob- 
ertson, 124  U.  S.   194.  31   L.  ed.  386, 

8  Sup.  Ct.  Rep.  456;  Botiller  v.  Dom- 
inguez,  130  U.  S.  247,  32  L.  ed.  926, 

9  Sup.  Ct.  Rep.  525 :  Horner  v.  Unit- 
ed States,  143  U.  S.  578,  36  L.  ed.  266, 
12  Sup.  Ct.  Rep.  522;  Fong  Yue  Ting, 
V.  United  States,  149  U.  S.  720,  37 
L.  ed.  905,  13  Sup.  Ct.  Rep.  1016; 
Thomas  y.  Gay,  169  U.  S.  270.  42  L. 
ed.  740,  18  Sup.  Ct.  Rep.  340;  Step- 
hens V.  Cherokee  Nation,  174  U.  S. 
483,  43  L.  ed.  1041,  19  Sup.  Ct.  Rep. 
722:  United  States  v.  Lee  Yen  Tai, 
185  U.  S.  220,  46  L.  ed.  878,  22  Sup. 
Ct.  Rep.  629. 

4C]aflin  v.  Houseman,  93  U.  S.  136, 
137.  23  L.  ed.  833:  Farmers,  etc.  Bank 
y.  Dearing.  91  U.  S.  29,  23  L.  ed. 
196. 

5New  York  v.  Eno,  155  U.  S.  98, 
39  L.  ed.  80,  15  Sup.  Ct.  Rep.  30; 
Ex  parte  Wliitten,  67   Fed.  231. 

6Blythc  y.  Hinckley.  180  V.  S.  338. 
45  L.  ed.  561,  21   Sup.  Ct.  Rep.  390. 


119 


§    15    [a]  FEDERAL    JURISDICTION    IN    GENERAL.  [Code   Fed. 

in  a  case  properly  before  them.7  A  remedy  for  failure  of  a  State  court 
to  respect  any  of  the  paramount  rights  derived  from  the  national  govern- 
ment, is  afforded  to  litigants  by  the  provision  for  a  writ  of  error  to  the 
Supreme  Court;  s  and  in  criminal  cases  by  further  provisions  for  the 
writ  of  habeas  corpus. 9  State  grand  jurors  and  officers  are  as  much 
bound  to  respect  the  supremacy  of  the  Federal  Constitution  and  laws,  as 
are  State  courts. lo  This  section  of  the  Constitution  forbids  State  courts 
from  freeing  persons  held  in  custody  by  Federal  courts,  or  court  commis- 
sioners or  officers  of  the  Federal  government. n 

§  15.     When  Federal  jurisdiction  is  exclusive. 

The  jurisdiction  vested  in  the  courts  of  the  United  States,  in  the 
cases  and  proceedings  hereinafter  mentioned,  shall  be  exclusive'^^^ 
of  the  courts  of  the  several  States : 

First.  Of  all  crimes  and  offenses  cognizable  under  the  authority 
of  the  United  States. ^^^ 

Second.  Of  all  suits  for  penalties  and  forfeitures  incurred  under 
the  laws  of  the  United  States.f^i 

Third.  Of  all  civil  causes  of  admiralty  and  maritime  jurisdic- 
tion; saving  to  suitors,  in  all  cases,  the  right  of  a  common-law 
remedy,  where  the  common  law  is  competent  to  give  it.'^'^^''^'^ 

Fourth.  Of  all  seizures  under  the  laws  of  the  United  States,  on 
land  or  on  waters  not  within  admiralty  and  maritime  jurisdic- 
tion."] 

Fifth.  Of  all  cases  arising  under  the  patent-right  or  copyright 
laws  of  the  United  States. ^^^ 

Sixth.  Of  all  matters  and  proceedings  in  bankruptcy. "^^^ 

Seventh.  Of  all  controversies  of  a  civil  nature,  where  a  State  is 
a  party,  except  between  a  State  and  its  citizens,  or  between  a  State 
and  citizens  of  other  States,  or  aliens. ^""^ 

E.  S.  §  711,  as  amendedi  Feb.  18,  1875,  chap.  80,  U.  S.  Comp.  Stats.  1901. 
p.  577. 

[a]     Power  to  make  jurisdiction  exclusive. 

Congress  is  required  by  the  Constitution  to  provide  a  Federal  tribunal 

7Ex  parte   Royall,   117  U.   S.  250,  16  L.  ed.  169;  Tarble's  Case,  13  Wall. 

29  L.   ed.  868,  6  Sup.  Ct.  Rep.   739;  403.  20  L.  ed.  599;  Robb  v.  Connollv. 

Arkansas  v.  Kansas,  etc.  Co.   183  U.  Ill  U.  S.  639,  28  L.  ed.  547,  4  Sup. 

S.  190,  46  L.  ed.  144,  22  Sup.  Ct.  Rep.  Ct.  Rep.  544;    Ex  parte  Rovall,    117 

47.  U.  S.  250,  29  L.  ed.  868,  6  Sup.  Ct. 

sSee   post,   §  38.  Rep.   739;    Ex   parte   Kelly,   37    Ala. 

9See  post,  §  1670.  476;   In  re  Copenhaver.  ll's  Mo.  .383, 

lOEx  parte  Royall,  117  U.  S.  250,  40  Am.  St.  Rep.  384,  24  S.  W.  162. 
29  L.   ed.   868,  6   Sup.   Ct.   Rep.   739.         iThe     amendment     consisted       in 

iiAbleman  v.  Booth,  21  How.  523,  strikintr  out  paragraph  8.  which  read 

120 


I 


Procedure]        WHEN  FEDERAL  JURISDICTION   IS  EXCLUSIVE.        §   15   [a] 

for  all  cases  arising  under  the  Constitution  laws  and  treaties,  for  all  ad- 
miralty cases,  and  cases  involving  foreign  ministers  and  consuls.-  .Viid 
while  the  mandate  of  the  Constitution  is  satisfied  by  vesting  merely  an 
appellate  jurisdiction  of  all  such  cases  in  Federal  courts, 3  it  is  plainly 
competent  for  Congress,  where  practicable,  to  vest  an  original  jurisdiction 
and  to  make  it  exclusive.-*  In  cases  arising  under  the  Federal  Constitution 
and  laws  it  is,  however,  not  always  practicable.  For  instance  if  a  Federal 
right  is  claimed  at  any  stage  of  the  proceedings  in  a  cause  in  a  State 
court,  either  at  the  trial  or  on  appeal,  and  a  correct  decision  of  the 
case  involves  a  correct  decision  upon  such  Federal  question,  the  cause 
then  becomes  a  case  "arising  under"  the  Federal  Constitution,  treaties 
and  laws,B  and  Congress  may  then,  but  not  sooner,  make  it  of  excluoive 
Federal  cognizance.  The  cases  involving  the  Federal  law  which  Congress 
has  made  exclusively  cognizable  in  Federal  courts,  by  the  above  section, 
are  all  cases  which  arise  under  Federal  law  in  a  more  direct  and 
fundamental  sense.  In  all  cases  not  expressly  or  impliedly  made  exclusive 
by  the  Federal  Constitution  or  laws.  State  courts  may  exercise  a  concurrent 
jurisdiction  where  under  the  State  laws  they  may  do  so.  6  They  have 
often  entertained  jurisdiction  of  suits  affecting  national  banks  and  their 
officers; 7  suits  against  postmasters  for  negligence;  s  or  for  trover; 9  and 
against  foreign  consuls. lo  The  above  section  as  originally  adopted,  con- 
tained an  eighth  paragraph  making  Federal  jurisdiction  exclusive,  "of 
all  suits  or  proceedings  against  ambassadors,  or  other  public  ministers 
or  their  domestics,  or  domestic  servants,  or  against  consuls  or  vice- 
consuls,"io  but  this  was  sticken  out  in  1875.ii  The  Constitution  gives 
the  Supreme  court  exclusive  jurisdiction  of  suits  against  foreign  ministers 
and  their  servants  bvit  not  against  consuls,i2  so  that  the  amendment  of 
the  above  section  was  effective  merely  in  permitting  suit  elsewhere  against 
consuls  and  vice  consuls.is 

as    follows:     "Eighth.     Of    all    mits  47  Md.  245,  28  Am.  Rep.  460;  Robin- 

or  proceeding?   against  embassadors,  son  v.  National  Bank,  81  N.  Y.  391, 

or  other     public    ministers    or    their  .37    Am.    Rep.    513;    Brinckerhoff    v. 

domestics,   or   domestic   servants,   or  Bostwick,  88  N.  Y.  60;  Hade  v.  Mc- 

against  consuls  or  vice  consuls."  Vay,  31   Ohio  St.  236;    Paul  v.   IMc- 

2Ante,  §  2,  note.  Graw,  3  Wash.  302,  28  Pac.  533.    See 

3See  ante,  §  2,  note.M  also  post,   §   24. 

4The  Moses  Tavlor.  4  Wall.  411,  18  sRaisler  v.  Oliver.  97  Ala.  714,  38 

L.  ed.  401:   Claflin  v.  Houseman,  03  Am.  St.  Rep.  215,  12  South.  241. 

U.  S.  130,  23  L.  ed.  833;  Railway  Co.  9Teal  v.  Felton,  12  How.  292,  13  L. 

v.  Whitton,   13  Wall.  288,  20  L.  ed.  ed.  900. 

571.  loWilcox    V.    Luco,    118    Cal.    642, 

5See  ante,  §  2.  note.rf]  62   Am.    St.   Rep.   306,   50   Pac.    759, 

eClaflin  v.  Houseman.  93  U.  S.  136,  45  L.R.A.  582. 

23  L.  ed.  833:  Plaquemines  F.  Co.  v.  uSee,  supra,   footnote. 

Henderson,  170  U.  S.  516,  42  L.  ed.  i2See  ante,  §  2,  note;    [i]   post,   § 

1126,  18  Sup.  Ct.  Rep.  685.  35. 

7Fresno  Nat.  Bank  v.  Superior  Ct.  is  Wilcox  v.  Luco,  118  Cal.  642.  62 

83  Cal.  498,  24  Pac.  159;  Continental  Am.    St.    Rep.    307,    50    Pac.    759.    45 

Nat.  Bank  v.  Folsom,  78  Ga.  450.   3  L.R.A.  582;   Pooley  v.  Luco,  72  Fed. 

S.  E.  272;  Ordway  v.  Central  Nat.  Bk.  563. 

121 


§   15    [aa]  FEDERAL    JURISDICTION    IN    GENERAL.  [Code  Fed. 

[aa]     Unenumerated  cases  where  Federal  jurisdiction  is  exclusive. 

There  are  other  eases  than  those  enumerated  in  the  above  section  where 
Federal  jurisdiction  is  exclusive.  Thus  the  district  court  is  by  another 
section  given  exclusive  jurisdiction  of  prize  cases  with  one  exception. i* 
The  Constitution  further  dechires  Federal  jurisdiction  exclusive,  of  suits 
against  ambassadors,  foreign  ministers  and  their  servants,  and  vests  the 
jurisdiction  in  the  Supreme  Court. is  So  where  Congress  gives  the  circuit 
and  district  courts  jurisdiction  over  suits  for  condemnation  for  public  per- 
poses,i6  this  jurisdiction  is  properly  exclusive  though  special  and  liruit- 
ed-iT  Moreover  if  a  Federal  statute  creates  a  new  Federal  right  and  pro- 
vides for  its  enforcement  in  the  Federal  court,  such  remedy  is  in  its  na- 
ture exclusive  though  not  expressly  so  declared  and  the  State  court  has 
no  jurisdiction;  e.  g.,  the  remedy  given  for  discrimination  in  charges  under 
the  interstate  commerce  act.is  Where  State  courts  have  not  been  em- 
powered to  adjudicate  inchoate  titles  to  land  involving  foreign  grants  a:id 
treaty  rights,  their  decrees  are  invalid. i^  An  exclusive  jurisdiction  in  the 
Federal  court  may  also  develop  out  of  a  situation  in  which  there  origin  il- 
ly existed  a  right  to  proceed  in  both  State  and  Federal  courts,  Thus  the 
prior  filing  of  a  suit  in  the  Federal  court  gives  it  such  a  prior  right  to 
proceed  that  proceedings  in  the  State  court  in  the  same  matter  will  be 
stayed  if  not  abated.  Similarly  the  taking  of  property  into  custody  by  a 
Federal  court  will  exclude  any  action  in  a  State  court  tending  to  embarrass 
or  disturb  that  possession. 20 

[b]     Crimes  and  offenses  against  United  States. 

The  same  act  may  be  an  offense  against  both  State  and  Federal  laws.l 
But  this  section  does  not  prevent  the  State  court  taking  jurisdiction  of  and 
punigliing  the  act  done  as  an  offense  against  the  State; 2  nor  a  territory 
from  punishing  an  act  also  punishable  mider  Federal  law.  3  So  long  as 
the  act  done  is  within  the  punishing  power  of  both  State  and  nation  the 
fact  that  the  State  courts  may  not  take  jurisdiction  of  the  crime  as  de- 
nounced by  the  Federal  law  does  not  prevent  their  punishing  it  under  the 

14 See  post,  §  201.     The  Thompson,  Ex  parte   Siebold,   100  U.  S.   390,  2.") 

3  Wall.  lo2,  18  L.  ed.  55.  L.  ed.   724;    United   States  v.   Well.-,, 

isSee    post,    §    35.  28  Fed.  Cas.  No.  523;   State  v.  Kirk- 

isSee  post,    §    150.  patrick,     .32     Ark.     121;     People     v. 

iTUnited   States  v.    Eisenbeis,    112  Welch,    141    X.    Y.    276,    38    Am.    St. 

Fed.  190,  50  C.  C.  A.  179.  Rep.    800,    36    N.    E.    331,    24    L.R.A. 

isSheldon  v.  Wabash,  etc.  R.  R.  105  121. 

Fed.  785;   Copp  v.  Louisville,  etc.  R.  s.Cross  v.  North  Carolina,  132  IJ.  S. 

R.  43  La.  Ann.  513,  20  Am.  St.  Rep.  139,  35  L.  ed.  290,  10  Sup.    -t.  Rep. 

199,  9  South.  441,  12  L.  R.  A.  726.  49;   Crossley  v.  California,  16S  U.  S. 

isHickev  v.   Stewart,  3  How.  763,  641,  42  L.  ed.  610;   18  Sup.  Ct.  Rep. 

11    L.   ed. '814;    Burgess   v.   Gray.    16  242. 

How.  62,  14  L.  ed.  839.  sTerritory   v.  Coleman,   1    Or.    192, 

2  0See  post.  §   16.  75  Am.  Dec.  555;  State  v.  Norman,  16 

lUnited  States  v.  Marigold,  9  How.  Utah.    465,    52    Pac.    989;     Smith    v. 

569,    13   L.   ed.   257;    Fox   v.   Ohio,   5  United  States,  1  Wash.  Terr.  270;  hi 

How.  433,  12  L.  ed.  213;  ^iloore  v.  Ill-  re  Murphy,  5  Wyo.  305,  40  Pac.  400. 
inois,    14    How.    19,    14    L.    ed.    300; 

122 


Procedure]      WHEN    FEDERAL    JURISDICTION    IS    EXCLUSIVE.        §   15   [b] 

State  law.*  Counterfeiting  may  be  an  offense  against  both  State  and 
nation.5  So  also  may  many  acts  committed  by  officers  of  national 
banks; 6  or  acts  committed  at  an  election  though  for  Federal  officers;" 
or  acts  committed  in  harboring  fugitive  slaves. »  In  a  sense  there  are  two 
distinct  crimes  involved  in  such  cases; 9  and  an  acquittal  or  conviction  of 
one  does  not  bar  trial  for  the  other  on  the  ground  of  former  jeopardy. i*^ 
Of  course  where  the  State  has  no  power  to  declare,  or  has  not  declared,ii 
an  act  to  be  a  crime  against  the  State,  it  is  punishable  only  in  the 
Federal  court.  12  And  where  the  United  States  has  no  power  to  declare 
an  act  criminal,  it  is  punishable  only  in  the  State  court. is  R.  S.  §  5S2S 
declaring  that  the  jurisdiction  of  state  courts  shall  not  be  deemed  im- 
paired by  the  sections  in  the  same  title  making  acts  crimes  against  the 
United  States  modifies  pro  tanto  the  exclusive  jurisdiction  provided  in 
the  section  of  the  revised  statutes  here  under  consideration.  14 

States  have  jurisdiction  over  waters  within  a  marine  league  of  their 
shores  and  over  bays  and  inlets  within  their  territory.is  They  may  punish 
crimes  committed  therein, is  and  Congress  in  its  criminal  legislation  has 
usually  excepted  offenses  committed  on  waters  within  the  territorial 
limits  of  a  State  from  the  terms  of  its  enactments,  i"     But  Congress  lias 

^Cross   V.   Xorth   Carolina,    132   U.  court:    Ex   parte   Bridges,   2  Woods, 

S.  139.  33  L.  ed.  290.  10  Sup.  Ct.  Hep.  428,     Fed.     Cas.     No.     l.Sl)2;     In     n- 

49;  Pettibone  V.  United  States.  148  U.  Loney,  134  U.  S.  375,  33  L.  ed.  951, 

S.  209,  37  L.  ed.  419,  13  Sup.  Ct.  Rep.  10  Sup.  Ct.  Rep.  585;   State  v.  Kirk- 

542.  Patrick,  32  Ark.  121. 

sjett  V.  Commonwealth,  18  Gratt.  12F0X  v.  Ohio,  5  How.  410,  12  L. 

954;    United    States    v.    Marigold,    9  ed.  213;   In  re  Loney,  134  U.  S.  375. 

How.  569,  13  L.  ed.  257;  Fox  v.  Ohio,  33  L.  ed.  951,  10  Sup.  Ct.  Rep.  585: 

5  How.  433.  12  L.  ed.  213;   People  v.  Ohio  v.  Thomas,  173  U.  S.  284,  43  L. 

White,    34  Cal.    18(1;    People   v.   Mc-  ed.  702,  19  Sup.  Ct.  Rep.  456;  State  v. 

Donnell,  80  Cal.  290.  13  Am.  St.  Rep.  Kirkpatrick.  32  Ark.    121;    People  v. 

165.  22   Pac.    192;    Dashing  v.   State,  Kelly,  38  Cal.  150,  99  Am.  Dec.  362; 

78  Ind.  358.  People  v.  Fonda,  62  Mich.  401,  29  N. 

fiCross  V.  North  Carolina,  132  U.  S.  W.  26. 

132,  33  L.  ed.  290.   10  Sup.  Ct.  Rep.  isHarkrader  v.  Wadlev,  172  U.  S. 

49;   Hoke  v.  People,   122  111.  517,  13  168,  43  L.  ed,  399,  19  Sup,  Ct,  Rep. 

N,  E.  825;  State  v.  Bardwell.  72  Miss.  119;   United  States  v.  Fox.  95  U.  S. 

541.    18   So.   379.  672,   24   L.    ed.   538. 

7Ex  parte   Siebold,   100   U.   S.   390,  i4Sexton    v.   California,    189   U.    S. 

25  L.  ed.  724;  United  States  v.  Cruik-  319,  47  L.  ed,  833,  23  Sup.  Ct.  Rep, 
shank,  1  Woods,  324,  Fed,  Cas,  No.  543;  People  v.  Welch,  141  N.  Y.  266. 
14,897.  277,  38  Am.   St.  Rep.   800,   36   N.   E. 

sMoore  v.  Illinois,  14  How.   13,  14  .331,  24  L.R.A.  121. 
L.  ed.  306.  isUnited     States     v.      Bevans,     3 

'■•United  States  v.  Barnhart,  22  Fed.  Wheat.  336,  4  L.  ed.  404;  Manchester 

290,   10   Savvy,   491;    State  v,  Olesen,  v,   Massachusetts,    139   U,   S,  240,  35 

26  Minn.  518,  5  N.  W.  969.  L.  ed.  162,  11   Sup.  Ct.  Rep.  559. 
lOUnited    States    v.    Barnhart,    22        iG.Sniith  v.  Maryland.  18  How.  76, 

Fed.  290,  10  Sawy.  491;  State  v.  15  L.  ed.  271 ;  Manchester  v.  Massa- 
Sly,  4  Or.  279;  United  States  v.  chusetts.  139  U.  S.  261.  35  L.  ed. 
Amy,  14  Md.  149,  note.  Quart.  L.  J..  166,  11  Sup.  Ct.  Rep  563;  Common- 
Fed.  Cas.  No.  14,445;  Carter  v.  Mc-  wealth  v.  Peters,  12  Met.  387:  Dun- 
Claughrv,  183  U.  S.  34.5,  46  L.  ed.  ham  v.  Lamphcre,  3  Gray,  270. 
236,  22  Sup.  Ct.  Rep.  181.  iTSee  R.  S.  §§  5339,'. 5346,  U.  S. 
HE,    g,    perjury    in    the    Federal  Comp,  Stats.  1901,  3627.  3630. 

123 


§   15   [c]  FEDERAL  JURISDICTION  IN  GENERAL.  [Code  Fed. 

power  to  punish  offenses  committed  within  the  admiralty  jurisdiction 
though  also  within  a  State's  territorial  limits. is  By  act  of  Sept.  4,  1890, 
C.  874,19  it  exercised  this  power  by  extending  the  Federal  criminal  jurisdic- 
tion to  the  Great  Lakes  and  their  connecting  waters. 20  The  jurisdiction 
then  became  concurrent  in  State  and  nation  as  respects  crimes  committed 
within  the  territorial  limits  of  one  of  the  adjacent  States. 

Outside  the  territorial  limits  of  the  States  the  Federal  government  exer- 
cises dominion  over  a  large  extent  of  territory  in  which  its  jurisdiction  is 
plenary  and  exclusive.  1  Some  of  this  territory,  as  in  the  case  of  forts, 
dockyards  etc.,  lies  within  the  geographical  limits  of  a  State  though  in 
fact  no  part  thereof,  and  exclusive  Federal  jurisdiction  of  crimes  often 
arises  from  that  fact. 2  Moreover  the  Constitution  gives  Congress  power 
to  punish  piracies  and  felonies  committed  upon  the  high  seas. 3  So  that 
the  Federal  government  has  a  large  criminal  jurisdiction,  exclusive  by 
virtue  of  its  dominion  over  the  place,  and  not  because  of  the  nature  of 
the  offense.  Chapter  three  of  title  70  of  the  revised  statutes  is  devoted  to 
"crimes  arising  within  the  maritime  and  territorial  jurisdiction  of  the 
United  States." 

[c]     Suits  for  Federal  penalties  and  forfeitures. 

Penalties  and  forfeitures  incurred  under  Federal  laws  arise  chiefly 
under  the  national  banking  laws,  copyright  laws,  customs  laws,  immigra- 
tion laws,  internal  revenue  laws,  postal  laws,  and  the  laws  respecting 
shipping.  The  jurisdiction  is  vested  chiefly  in  the  district  court; 5  though 
some  jurisdiction  in  such  cases  has  been  conferred  on  the  circuit  court.6 
In  custom  cases  the  district  court's  jurisdiction  is  exclusive  notwith- 
standing the  general  grant  of  concurrent  jurisdiction  to  the  circuit  court 
of  cases  arising  under  Federal  laws  or  in  which  the  United  States  are 
plaintiffs. 7  So  in  suits  for  j^enalties  for  importing  contract  labor  the 
circuit  court  has  jurisdiction. «  The  penalties  declared  by  Congress  for 
usury  in  loans  and  discounts  bj'  national  banks  may  be  recovered  in  either 
State  or  Federal  court  under  the  legislation  of  Congress,  and  the  exclusive 
jurisdiction  declared  by  the  above   section   does  not   apply. 9     There   have 

isUnited    States   v.    New   Bedford  "United   States  v.  Mooney.   116  U. 

Bridge,  1  Wood.  &  M.  407,  Fed.  Cas.  S.  104,  29  L.  ed.  560,  6  Sup.  Ct.  Rep. 

No.   15.867;     Ex    part*    Ballinger,    5  304. 

Hughes,    390,    88    Fed.    783;    United  ^United  States  v.  Mexican  Ry.  tO 

States  V.  Petersen,  64  Fted.  147:  Unit-  Fed.  770;  United  States  v.  Whitcomb, 

ed  States  v.  Jackalon.  1  Black,  487,  etc.  Co.  45  Fed.  90;   Lees  v.  United 

17  L.  ed.  225.  States,  150  l..  S.  479,  37  L.  ed.  1151. 

19 See  U.  S.  Comp.  Stats.  1901,  p.  14  Sup.  Ct.  Rep.  164. 

3627.  9R.  S.    §   5198,    (as  amended   1875) 

20See  §  27.  U.  S.  Comp.  Stats.  1901,  p.  3493.     See 

iSee  post,  §§  25,  26.  Farmers,  etc.  Bank  v.  Dearing,  91  U. 

2See  post,  §  26.  S.  29,  23  L.  ed.   196;   Charlotte  Nat. 

"Cons.  art.  L  §  8.  cl.  10.  Bank    v.    Morgan,    132    U.    S.    145, 

5See   post,    §    195.     United    States  33    L.    ed.    282.    10    Sup.    Ct.    Rep. 

V.  Mooney,  116  U.  S.   104.  29  L.  ed.  37;    Bletz    v.    Columbia   Nat.    Bank, 

550,  6  Sup.  Ct.  Rep.  304.  87    Pa.    St.    87.    30    Am.    Rep.  343; 

6 See  R.  S.  §  629,  subd.  4,  5,  7,  15,  Ordway      v.      Central      Nat.      Bank, 

post,   §    121    et  passin.  47   Md!   217,  28   Am.  Rep.   455;    Dow 

124 


I 


Procedure]    WHEN    FEDERAL    JURISDICTION    IS    EXCLUSIVE.        §   15   [e] 

also  been  other  statutes  of  Congress  under  which  penalties  were  recover- 
able in  State  courts.  lO 

[dj     Admiralty  causes. 

The  admiralty  jurisdiction  made  exclusive  by  the  above  section  of  the 
revised  statutes,  is  by  another  section  vested  with  some  minor  qualifica- 
tions, in  the  district  court.12  The  clause  saving  the  common  law  remedy 
in  cases  where  the  common  law  is  competent  to  give  it,  has  the  effect  of 
dividing  admiralty  cavises  into  those  exclusively  cognizable  in  admiralty, 
and  those  where  the  admiralty  jurisdiction  is  only  concurrent.  The  juris- 
diction is  exclusive  where  the  cause  of  action  is  properly  of  admiralty  cog- 
nizance,! 3  and  where  the  remedy  which  must  be  pursued  is  one  which  the 
common  law  is  not  competent  to  give.  This  incompetency  of  the  common 
law  to  give  a  remedy  may  result  from  the  fact  that  its  writs  and  processes 
cannot  reach  the  person  or  persons  who  by  common  law  principles  are 
deemed  liable,  or  it  may  result  from  the  fact  that  the  right  on  which  a 
remedy  is  sought,  is  not  recognized  in  common  law  jurisprudence  but  only 
by  the  law  maritime. 

[e]     Suit  in  rem  is  not  a  competent  law  remedy. 

It  is  well  settled  that  the  States  may  not  authorize  proceedings  in 
State  courts  in  rem  against  vesseLs  or  things  afloat  within  the  admiralty 
jurisdiction.  15  This  is  a  remedy  which  the  common  law  is  not  competent 
to  give.  Hence  all  proceedings  in  rem  of  a  maritime  nature  are  exclusive- 
ly cognizable  in  the  Federal  court  of  admiralty.  The  distinguishing  char- 
acteristic of  a  suit  in  rem  is  that  the  vessel  or  thing  proceeded  against, 
is  itself  seized  and  impleaded  as  the  defendant  and  judged  and  sentenced 
accordingly.! 6  Common  law  process  whether  of  attachment  or  execution, 
on  the  other  hand,  reaches  the  thing  only  through  a  personal  defendant 
and  disposes  thereof  if  at  all  only  to  the  extent  that  it  is  defendant's 
property.  Consequently  the  fact  that  a  State  law  authorizes  attachment 
of  a  vessel  in  a  suit  in  personam,  does  not  make  the  suit  in  rem,  within 
this  limitation  upon  State  powers.!  7 

V.  Irasburgh  Nat.  Bank,  50  Vt.  112,  Rep.    254;    The    Plymouth,    3    Wall. 

28  Am.  Rep.  493;  Lynch  v.  IMerchants  20,  18  L.  ed.  125;  John  Spry  Co.  v. 

Nat.   Bank,   22  W.  Va.  557,  4G  Am.  Barge,  76  Mich.  328,  43  N.  W.  578. 

Ilep.  523.  isThe  Moses  Taylor,  4  Wall.  411, 

!0Stearn3     v.     United     States,     2  18  L.  ed.  397;  The  Hine  v.  Trevor,  4 

Paine,   340,   Fed.   Cas.  No.   13,341.  Wall.  555,  18  L.  ed.  451;  Tlie  Belfast, 

i2See  post,  §  200.  7  Wall.  624,  19  L.  ed.  2GG;  The  Glide. 

!3If   it   is  not,   the  jurisdiction   is  167  U.  S.  006,  42  L.  ed.  296,  17  Sup. 

not   in   admiralty   at   all.     Thus   ad-  Ct.   Rep.   930;    Knapp   v.   McCaffrey, 

miraltv    has   no"  jurisdiction   over   a  177  U.  S.  638,  44  L.  ed.  921,  20  Sup. 

vessel  "that  is  building.     Edwards  v.  Ct.    Rep.    824,    829;    The    Edith,    11 

Elliott.  21  Wall.  532,  22  L.  ed.  487.  Blatchf.  454,  Fed.  Cas.  No.  4,283. 

Nor  has  it  jurisdiction  over  a  tort  by  isThe  Moses  Taylor,  4  Wall.  411, 

a  vessel  to'  a  structure  on  land.     Ex  18  L.  ed.  397;  The  .Maggie  Hammond, 

parte  Phenix  Ins.  Co.  118  U.  S.  616,  9  Wall.  456,  19  L.  ed.  772. 

30  L.  ed.   274,    7  Sup.  Ct.  Rep.  25;  i^Leon  v.  Galceran,   11   Wall.   185, 

Johnson  v.  Chicago  Elevator  Co.  119  20  L.  ed.  74;  Johnson  v.  Chicago,  etc. 

U.  S.  397,  30  L.  ed.  447.  7   Sup.  Ct.  Co.    119    U.    S.    388,    30    L.    ed.    447, 

125 


§   15   [f]  FEDERAL    JURISDICTION    IN    GENERAL.  [Code  Fed. 

[f]  No  common  law  remedy  where  right  of  action  is  only  recognized  by 

the  law  maritime. 
It  is  quite  as  essential  to  a  common  law  remedy  that  the  right  of  action 
be  one  which  is  recognized  in  the  common  law.  Hence  if  the  right  for 
which  redress  is  sought  is  one  that  exists  only  in  the  law  maritime,  its 
vindication  must  be  sought  there.  The  right  of  salvage  in  a  volunteeri 
is  a  right  peculiar  to  the  admiralty  law.  The  right  of  jettison  and  gen- 
eral average;  2  and  the  law  of  limited  liability  of  ships,  are  also  illustra- 
tions of  doctrines  of  admiraltj'^  foreign  to  the  learning  of  the  common  law. 
The  right  in  rem  for  supplies  at  a  foreign  port  is  not  recognized  by  the 
common  or  municipal  law,  as  distinguished  from  the  law  maritime,  and 
the   States   may    not    empower   their   courts    to   take   cognizance   thereof. 3 

[g]  The  concurrent  admiralty  jurisdiction. 

It  follows  from  what  has  already  been  said  that  all  cases  where  common 
law  remedies  may  reach  the  person  or  persons  who  by  common  law  prin- 
ciples are  liable — and  this  virtually  means  in  all  cases  where  suits  in 
personam  are  maintainable^ — the  party  may  proceed  elsewhere  than  in 
the  Federal  court,  if  his  right  of  action  is  recognized  by  the  municipal  as 
well  as  by  the  maritime  law.  He  need  not  proceed  in  admiralty  from  the 
mere  fact  that  his  cause  is  there  cognizable.  The  concurrent  common  law 
remedy  is  not  taken  away. 6  The  statute  here  under  consideration  does 
not  create  this  common  law  right,  but  merely  recognizes  or  saves  it;'^ 
and  leaves  the  matter  as  it  was  at  common  law.s  The  admiralty  jurisdic- 
tion, where  the  right  exists  both  by  municipal  and  maritime  law,  is  still 
exclusive,  in  the  sense  that  if  a  party  chooses  the  admiralty  mode  of  en- 
forcing it,  he  must  resort  to  the  Federal  court.  But  it  is  merely  a  con- 
current form  of  relief.  This  option  to  choose  between  an  admiralty  suit 
in  the  district  court,  and  a  suit  in  the  State  court,  or  in  the  Federal  cir- 
cuit court  where  citizenship  is  diverse,9  arises  where  it  is  possible  to 
reach  a  personal  defendant  with  process  within  the  jurisdiction  with  or 
without  anxiliary  attachment,  and  occurs  most  frequently  where  tlie  pro- 
ceeding is  in  a  vessel's  home  port.     If  the  admiralty   law  give  a   lien   in 


7   Sup.   Ct.  Rep.  2.54;   Knapp  v.  Mc-  119,    26    L.    ed.    95;    Manchester    v. 

Claffrey,    177    U.    S.    638,    44    L.    ed.  Massachusetts,'  139  U.   S.  262,  35  L. 

921,  20   i3up.   Ct.   Rep.  827;    State  v.  ed.   159,   11  Sup.  Ct.  Rep.  559. 

Voorhees,  39  La.  Ann.  501,  4  Am.  St.  sWaring    v.    Clarke,    5    How.    461, 

Rep.  276,  2  So.  39.  12  L.  ed.  226;   New  Jersey,  etc.  Co. 

iBut  a  State  court  may   entertain  v.   Merchants   Rank,  6   How.   390,   12 

suit    regarding    salvage,    based    on    a  L.  ed.  465;  Tavlor  v.  Carryl,  20  How. 

contract.     Albanv,  etc.  Co.  v.  Whit-  598,  15  L.  ed.  1028. 

noy.  70  Pa.  St.  248.  TAshbrook    v.     The    Golden    Gate. 

2Rossiter     v.     Chester,      1     Doug.  Newb.  302,  Fed.  Cas.  No.  574. 

(]\Iich.)    154.  sNew  Jeri^ey,  etc.  Co.  v.  Merchants 

s Taylor    v.    Carryl,    20   How.    598.  Bank,  6  How.  390,   12  L.  ed.  465. 

1.05,   15  L.   ed.    1028;    The  Isabella,   1  ^American   S.   R   Co.   v.   Chase,    16 

Brown,  104.  Fed.  Cas.  No.  7,100.  Wall.  533.  21  L.  ed.  369;  The  Belfast, 

5New  Jersey,  etc.  Co.  v.  Merchants  7  Wall.  044,  19  L.  ed.  26!];   Norton  v-. 

Bank,    6    IIow.    390,    12    L.    ed.    465;  Switzer,  93  U.   S.  356,  23  L.  ed.  903. 
Schoonmaker   v.   Gilmore,   102   U.   S. 

126 


Procedure]    WHEN    FEDERAL    JURISDICTION    IS    EXCLUSIVE.         §   15   [h] 

rem  the  parly  may  waive  this  and  pi'oceed  in  personam  in  State  or  Federal 
court. 10  But  he  cannot  be  compelled  to  forego  his  right  to  proceed  in 
admiralty.il  State  courts  have  entertained  suits  in  personam  on  a  mari- 
time bill  of  ladingi2  or  contract  of  transportation;  13  on  an  admiralty 
bond;  14  on  a  bond  in  a  State  court  given  for  a  vessel; is  for  death  on  navi- 
gable waters  from  wrongful  act;i6  for  injuries  by  collision ;17  for  sea- 
men's wages;  18  and  for  materials  furnished  vessel. 19  The  saving  of  a 
common  law  remedy  does  not  mean  a  remedy  existing  by  the  common  law 
at  the  time  of  this  enactment.  It  has  been  held  to  include  a  subsequent 
statutory  right  of  action  for  death  by  negligence;  i  for  damages  by  col- 
lision; 2  and  for  damages  by  a  burning  vessel. s  But  it  will  not  include 
subsequent  State  statutes  infringing  upon  the  exclusive  admiralty  pro- 
cedure by  attempting  to  create  a  right  to  proceed  in  rem  in  a  State  court.* 
The  common  law  remedy  does  not  mean  a  remedy  in  common  law  courts. 5 
It  saves  to  a  party  the  benefit  of  a  remedy  enforced  by  action  in  equity. 6 
It  probably  means  a  remedy  according  to  municipal  as  distinguished  from 
admiralty  procedure,  based  upon  a  right  or  liability  existing  at  common 
law  or  subsequently  declared  by  the  local  law  making  power  acting  within 
the  scope  of  its  powers. 

LhJ     Rights  of  a  maritime  nature  created  by  State  laws. 

While  the  States  may  not  impair  or  restrain  the  Federal  admiralty  jur- 
isdiction,8  and  while  they  may  not  authorize  State  proceedings  in  rem  of 
a  maritime  nature,^  they  may  yet  create  many  rights  of  a  maritime  na- 
ture, e.  g.  liens  for  repairs  in  the  home  port,  liens  for  toAvage,  a  right  of 
action  for  death  due  to  negligence,  etc.  These  rights  may  be  enforced  in 
the  admiralty  court,  lo     They  must  be  enforced  in  admiralty  if  the  pro- 

lOThe  Propellor  Commerce,  1  Black,  isSmith  v.   Oakes,   141   Mass.   454, 

580.    17   L.    ed.    107;    The   Belfast,   7  55   Am.   Rep.   488.   5   N.   E.   82(3. 

Wall.  642,   19  L.  ed.  266;   Norton  v.  is  Waggoner  v.  St.  John,  10  lieisk. 

Switzer,  93  U.  S.  356,  23  L.  ed.  903;  512;  Davis  v.  Mason,  44  Ark.  555. 

Ex  parte  Easton,  95  U.  S.  76,  77,  24  lAmerican   S.   B.  Co.  v.  Chase.   16 

T-  ed.  373.  Wall.  522.  21  L.  ed.  3G9;  Sherlock  v. 

iiMoran  v.  Sturges,  154  U.  S.  277,  Ailing,   93  U.   S.    104,   23  L.   ed.  821. 

38  L.  ed.  981,  14  Sup.  Ct.  Rep.  1019.  2Schoonmaker  v.   Gilmore,   102   U. 

izHome  Ins.   Co.   v.   Northwestern  S.   118.  26  L.  ed.  95. 

P.  Co.  32  Iowa,  243,  7  Am.  Rep.  190.  sChappell  v.  Bradshaw.    128  U.   S. 

i3Baird  v.  Daly,  57   N.  Y.  249,  15  134,   32   L.   ed.  369,  9   Sup.   Ct.   Rep. 

Am.  Rop.  493.  40. 

i^Braithwaite  v.  Jordan,  5  N.  Dak.  4The  Hine  v.  Trevor,  4  Wall.  571. 

218,   65   W.    W.    708,    31    L.R.A.    248;  572,  18  L.  ed.  451. 

Conrad    v.    De    Montcourt,    138    Mo.  sThe  Moses  Taylor,  4  Wall.  431.  18 

322,  39  S.  W.  808.  L.    ed.    402;    Moran    v.    Sturges,    154 

isLeon  v.  Galceran,  11  Wall.  190,  20  U.  S.  276,  38  L.  ed.  987,  14  Sup.  Ct- 

I-  ed.  74.  Rep.  1019. 

isChase  v.   American   S.   B.   Co.   9  6Knapp,  etc.  Co.  v.  McCaffrey,  177 

R.  I.  433,  11  Am.  Rep.  282.  S.  C.  16  U.  S.  638,  44  L.  ed.  921,  20  Sup.  Ct. 

Wall.  522,  21  L.  ed.  369;   Sherlock  v.  Rep.   827. 

Ailing.  93  U.  S.  104,  23  L.  ed.  821.  sSee  ante,   §   5.  note.[c] 

I'Selioonmaker  v.  Gilmore,  102  U.  ^Supra,  note.Ce] 

S.   118.  26  L.  ed.   95;    Brown  v.  Gil-  lOSee    ante,    §    5,    note;[c]    §     11, 

more,  92  Pa.  St.  46.  note.Cb] 

127 


§   15   [I]  FEDERAL   JURISDICTION    IN    GENERAL.  [Code   Fed. 

ceeding  is  in  rem.n  But  they  may  also  be  enforced  in  the  State  court  in 
an  ordinary  common  law  action  in  personam  and  in  the  circuit  court 
where  diverse  citizenship  exists. 

[i]  Operation  of  State  laws,  civil  and  penal,  on  navigable  waters  within 
State  jurisdiction. 
The  fact  that  admiralty  jurisdiction  is  exclusive  in  Federal  courts  does 
not  prevent  State  regulations  operating  over  tide  waters  within  a  marine 
league  from  shore  and  over  bays  wholly  within  its  territory,  these  being 
within  a  State's  territorial  jurisdiction.! s  A  State  may  regulate  fishing 
rights  in  such  domestic  waters,  as  respects  both  shell  fish  and  swimming 
fish,  and  may  punish  offenses  against  its  laws  there  committed,  i*  Its 
regulations,  however,  must  not  interfere  with  regulations  by  Congress  of 
commerce  and  navigation,  nor  conflict  with  the  Federal  admiralty  jurisdic- 
tion or  laws. 15  As  is  elsewhere  stated  Congress  has  generally  excepted 
offenses  committed  within  the  territorial  limits  of  the  several  States  from 
the  operation  of  its  criminal  laws  and  left  the  punishment  thereof  to  the 
several  States. is 

[j]     Seizures  on  land  or  non-navigable  waters. 

This  exclusive  jurisdiction  over  seizures  on  land  or  on  non -navigable 
waters  is  vested  in  the  district  court.i  This  clause  of  the  section  has 
been  amended  several  times. 2  Congress  has  drawn  a  distinction  between 
seizures  made  in  places  within  the  admiralty  jurisdiction  and  seizures  else- 
where. In  taking  cognizance  of  seizures  of  the  latter  class  the  district 
court  sits  as  a  court  of  common  law  and  hence  the  right  of  jury  trial  ex- 
ists; 3  whereas  there  is  no  right  of  jury  trial  in  admiralty  seizures.*  As 
jurisdiction   of  admiralty   seizures  is   made  exclusive  by  other  clauses  of 

iiThe  Glide,   167  U.  S.  606,  42  L.  son.      85    Me.      192,     27      Atl.      98; 

ed.  296,  17  Sup.  Ct.  Rep.  930;  Knapp  Commonwealth  v.  Hilton,   174  Mass. 

v.  McCaffrey,  177  U.  S.  638,  44  L.  ed.  31,  54  N.  E.  363,  45  L.R.A.  478;  The 

921;  20  Sup.  Ct.  Rep.  827;  American  Ann,  8  Fea.   926,  5  Hughes,  292. 

S.  B.  Co.  V.  Chase,  16  Wall.  522,  21  isSmith  v.  Maryland,  18  How.  74, 

L.  ed.  369;   Schoonmaker  v.  Gilmore,  15  L.  ed.  269;   The  Elexena,  53  Fed. 

102  U.  S.  118,  26  L.  ed.  95.  366. 

i3United  States  v.  Bevan,  3  Wheat.  isSee  supra,  note.Cb] 

336,    4    L.    ed.    404;    Manchester    v.  iSee  post,  §  195. 

Massachusetts,  139  U.  S.   262,  35  L.  2See  14  Stat.  Ill;  14  Stat.  483;  12 

ed.  159,  11  Sup.  Ct.  Rep.  559:  People  Stat.  3i9. 

v.   Tyler,  7   Mich.   212,  74  Am.  Dec.  sLeland  v.  Ship  Medora,  2  Wood.  & 

708;    IMahler   v.    Transportation    Co.  M.  109,  Fed.  Cas.  No.  8,237;  Morris  s 

35  N.  Y.  357.  Cotton,  8  Wall.   511,   19  L.  ed.  482; 
i4United  States  v.  Bevan,  3  Wheat.  The  Confiscation  Cases,  7  Wall.  462, 

336,  4  L.  ed.  404;   McCready  v.  Vir-  19  L.  ed.  196;  United  States  v.  Win- 

ginia,   94   U.    S.   391,   24  L.   ed.   248;  Chester,  99  U.   S.  374,  25  L.  ed.  480: 

Smith  V.  Maryland,   18  How.  74,    15  The  Sarah,  8  Wheat.  394,  5  L.  ed.  044; 

L.  ed.  269;  Lawton  v.  Steele,  152  U.-  United  States   v.  Athens   Armorv,   2 

S.    138.   38   L.   ed.    389,    14   Sup.    Ct.  Abb.  (U.  S.)  138,  Fed.  Cas.  No.  14^473. 

Rep.    501 ;     The     Elexena,     53     Fed.  ^United  States  v.  Betsey,  4  Cranch, 

366;    State   v.    Harrub,   95   Ala.  183,  443,  2  L.  ed.  673;  Whelaii  v.  United 

36  Am.    St.    Rep.    198.    10    So.    753,  States,  7  Cranch.  112.  3  L.  ed.  286; 
15    L.R.A.     763;     State    v.    Thomp-  The   Meteor,   17    Fed.   Cas.    No.    ISO. 

128 


Procedure]        WHEN  FEDERAL  JURISDICTION  IS  EXCLUSIVE.  §   15   [k] 

the  above  section,  it  follows  that  Federal  jurisdiction  is  exclusive  over  all 
seizures  for  violation  of  United  States  laws.5  Any  intervention  by  a 
State  court  or  authority  which,  by  taking  the  thing  seized  out  of  the 
possession  of  the  Federal  officer,  might  obstruct  the  exercise  of  this  juris- 
diction, would  be  a  violation  of  the  above  section  making  Federal  juris- 
diction exclusive. 7  The  Federal  court  must  first  determine  the  legality 
of  the  seizure,  8  and  pendency  of  the  Federal  proceeding  is  a  good  plea  in 
abatement  of  trespass  in  a  State  court. »  But  if  the  Federal  court  decide 
the  seizure  to  have  been  wrongful,  the  aggrieved  party  may  then  proceed  in 
the  State  court;io  and  if  the  seizure  was  not  made  under  the  laws  of  the 
United  States,  proceedings  may  be  taken  in  the  State  court  against  the 
seizing  officer,  n 

[k]     Cases  under  patent  or  copyright  laws. 

The  jurisdiction  over  patent  and  copyright  cases  is  vested  chiefly  in 
the  circuit  court. i*  This  section  makes  the  judisdiction  exclusive  only 
where  a  case  arises  under  the  patent  or  copyright  law.  The  State  courts 
may  entertain  an  action  on  an  agieement  for  patent  royalties,i5  to  en- 
force or  annul  a  patent  contract, 1 6  to  compel  specific  performance^!  7  to 
enjoin  use  of  patent  unwarranted  by  an  agreement,!  8  or  collection  of  State 
tax  on  patent  rights; 1 9  or  to  compel  an  accounting  for  use  of  a  patent ;i 
or  enjoin  false  statements  respecting  patent  rights; 2  or  compel  a  transfer 
of  a  patent; 3  or  determine  whether  a  license  has  in  fact  been  given. *  A 
State  court  may  similarly  entertain  suit  on  an  agreement  between  author 
and  publislier.5  The  Court  of  Claims  may  entertain  suit  for  compensation 
from  the  government  for  use  of  a  patent. 6     In  all  these  and  in  various 

sSlocum  V.  Mayberrv,  2  Wheat.  9,  Co.   v.    Cincinnati,   etc.    Co.   42   Fed. 

4   L.    ed.    169;    Gelston    v.    Hoyt,    3  679;   Standard  etc.  Co.  v.  Leslie,  118 

Wheat.  311,  4  L.  ed.  381;   Tracev  v.  Fed.  557,  55  C.  C.  A.  323;  Hubbard  v. 

Corse,   58   N.    Y.    149.  Allen.   123   Pa.    St.  209,   16  Atl.  775. 

7Slocum  v.  ]\Iayberrv,  2  Wheat.  9,  is  Wade  v.  Lawder,  165  U.  S.  624, 

4  L.  ed.  171;  United  States  v.  Cloth,  41  L.  ed.  852,  17  Sup.  Ct.   Rep.  427. 

1  Paine,  439,  Fed.  C^s.  No.  15,150.  1 7 Marsh  v.  Nichols,  140  U.  S.  344, 

sGelston   v.   Hoyt,    3   Wlieat.    312,  35  L.  ed.  417,  11  Sup.  Ct.  Rep.  802. 

4   L.    ed.    398;    Ashbrook    v.    Golden  is  Williams   v.    Star    Land    Co.    35 

G-ate,  Newb.  299,  Fed.  Cas.  No.  574.  Fed.   371;   McMullen  v.   Bowers,  102 

9Hall   V.   Warren,   2   McLean,   334,  Fed.  494,  42  C.  C.  A.  470. 

Fed.  Gas.  No.  5,952.  isHolt  v.  Indiana  Mfg.  Co.  80  Fed. 

loSlocum   V.   Mayberrv,  2    Wheat.  3,   25  C  C.  A.   301;    S.  C.   176  U.   S. 

10,  4  L.  ed.  171;  Smith  V.  Averill.  7  70,  44  L.   ed.   376,  20  Sup.   Ct.  Rep. 

Blatchf.    33,    Fed.    Cas.    No.    13,007;  272. 

Stoughton  V.  Mott,  13  Vt.  182.  iHavana,  etc.  Co.  v.  Ashurst,   148 

iiSlocum  V.  Mayberry,  2  Wlieat.  9,  111.   139,  35  N.  E.  880. 

4   L.    ed.    171;    Gelston    v.    Hoyt,    3  2Shoemaker  v.  South  Bend,  etc.  Co. 

Wheat.  246,  4  L.  ed.  381.  135  Ind.  475,  35  N.  E.  282,  22  L.R.A. 

KSee  post,  §  126.  .333. 

15 Wilson  V.  Sandford.  10  How.  101,  sLamson  v.  Martin.  159  Mass.  559, 

13  L.  ed.  344;   Dale  Tile  Mfg.  Co.  v.  35  N.  E.  79. 

Hyatt,   125  U.   S.    52,  31    L.  ed.   683,  4 Waterman  v.  Shipman.  130  N.  Y. 

8  Sujr.  Ct.  Rep.  756;   Felix  v.  L.i.un-  ,S07.  29  N.  E.  113. 

weber,   125  U.   S.   58.  31   L.   ed.   688,  ssilver  v.  Holt,  84  Fed.   811. 

8  Sup.  Ct.  Rep.  761;  Washburn,  etc.  sUnited   States  v.  Palmer,   128  U. 
Fed,  Proc— 9.                                129 


§   15   [1]  FEDERAL  JURISDICTION   IN   GENERAL.  [Code   Fed. 

other  similar  cases  the  action  is  not  deemed  to  arise  under  tlie  patent  or 
copyright  laws  but  to  involve  merely  the  ordinary  law  of  contract,  even 
although  the  defence  incidentally  claims  that  the  patent  is  invalid. ■?  But 
in  cases  where  the  infringement  or  validity  of  or  title  to  a  patent  or  copy- 
right is  involved,^  questions  as  to  the  construction  of  patent  and  copyright 
laws  necessarily  occur,  and  such  cases  "arise  under"  them  within  the  terms 
of  the  above  statute.  Suits  for  infringement  are  deemed  to  involve  the 
validity  of  a  patent  and  to  be  exclusively  of  Federal  cognizance,9  unless 
it  appears  from  plaintiff's  own  statement  of  his  claim  that  the  controversy 
really  involves  merely  a  license  or  agreement. lo  The  mere  fact  that  the 
existence  of  a  license  or  the  construction  of  a  contract  may  be  involved  in 
an  infringement  suit  does  not  oust  Federal  jurisdiction.!  i  There  is  a  clear 
distinction  between  questions  arising  under  the  patent  laws  and  cases  so 
arising.  12  It  is  only  the  latter  that  are  exclusively  cognizable  in  the  Fed- 
eral courts.  The  matter  is  determined  from  plaintiff's  statement  of  his 
cause  of  action,  ji\st  as  in  other  cases  justiciable  in  the  circuit  and  dis- 
trict courts  as  "arising  under"  Federal  laws,i3  subject,  however,  to  the  pro- 
vision of  the  Federal  statutes  that  where  it  appears  at  any  time  that 
Federal  jiirisdiction  has  been  wrongly  invoked,  the  court  must  dismiss.i* 

[1]     Bankruptcy  cases. 

The  bankrupt  law  of  1898  provides  for  stay  of  proceedings  in  State 
courts  on  debts  which  would  be  released  by  a  discharge  in  bankruptcy  if 
granted;  15  and  provides  further  that  matters  of  controversy  outside  the 
proceedings  in  bankruptcy  proper,  shall  be  cognizable  in  the  Federal  court 
only  if  there  justiciable  in  case  there  had  been  no  bankrupt  proceedings 
unless  by  consent  of  defendant. is  These  provisions  recognize  principles 
established  by  the  decisions  under  earlier  bankrupt  laws  respecting  the 
extent  to  which  the  State  courts  might  retain  jurisdiction  over  causes  to 
which  the  bankrupt  was  party,  notwithstanding  the  above  enactment  de- 
claring Federal  bankruptcy  jurisdiction  exclusive.  This  applies  merely 
to  the  procedure  or  bankruptcy  administration  proper.     It  does  not  pre- 

S.  269,  32  L.  ed.  444,  9  Sup.  Ct.  Rep.  Co.  v.  Nichols,  G5  Fed.  217,  12  C.  C. 

106.  A.    578;    Young,    etc.    Co.    v.    Young, 

vPratt  V.  Paris  Co.  168  U.  S.  260,  etc.    Co.   72   Fed.   63;    Pacific   Co.   v. 

42  L.  ed.  460,  18  Sup.  Ct.  Rep.  64;  Union,  etc.  Co.  80  Fed.  738. 

Hyatt  V.  Ingalls,   124  N.  Y.   102,  20  iiLittlefield  v.  Perry,  21  Wall.  222, 

N.  E.  287.  22  L.  ed.  577:   Excels'ior  Pipe  Co.  v. 

sAtherton,  etc.  Co.  v.  Atwood  Co.  Pacific  B.  Co.  185  U.  S.  282,  46  L.  ed. 

102  Fed.  951.  43  C.  C.  A.  72.  910,  22  Sup.  Ct.  Rep.  681,  686. 

sAgawam    Co.   v.   Jordan.  7   Wall.  i2Pratt  v.  Coke  Co.  168  U.  S.  260, 

593,  19  L.  ed.  177;  Littlefield  v.  Perry,  40  l.  ed.  460,  18  Sup.  Ct.  Rep.  64. 

21  Wall.  205,  22  L.  ed.  ^77;  Excelsior  ,3,5^^           '       j^g^ 

Pipe  Co.  V.  Pacific  B.  Co.   185  I  .   S.  4.     s    oio     t;-       1  •       t>- 

282,  46  L.  ed.  911;   22  Sup.  Ct.  Rep.  ^,  ''See  post,   §   818;   Excelsior  Pipe 

685':    Atherton   Mach.   Co.  v.  Atwood    \''-  ]' ^'T'l      %l   l        c^f     ' 
Co.  102  Fed.  949.  43  C.  C.  A.  72.  1-  ^d.  910,  22  Sup.  Ct.  Rep.  681. 

loWhite  V.  Rankin,  144  U.  S.  628,        i^'See  post,  §  2201. 
36  L.   ed.  509,  12  Sup.  Ct.  Rep.  768        leSee  post,   §  2200  et  seq. 
(explaining  earlier  cases) ;  Elgin,  etc. 

130 


Procedure]     COXCUBREXT  AXD  CONFLICTIXG  JURISDICTION.  §   16 

vent  an  assignee  in  bankruptcy  appearing  in  a  State  court  in  an  action 
brought  prior  to  the  bankruptcy  concerning  the  bankrupt's  lands,i"  and 
if  he  so  appears  and  there  litigates  his  rights,  he  cannot  thereafter  in  the 
Federal  court  claim  an  immunity  from  such  suit; is  nor  can  other  parties 
object  if  he  does  not.19  Judicial  proceedings  in  other  courts  are  not  avoid- 
ed by  the  institution  of  bankruptcy  proceedings,  nor  is  the  otherwise  law 
ful  jurisdiction  of  a  state  court  over  a  suit  thereby  ousted. 20  The  sec- 
tion here  under  consideration  does  not  prevent  a  State  court  from  decid- 
ing rights  of  property  between  a  bankrupt  or  his  assignee,  and  third  per- 
sons.i  State  attachment  proceedings  not  annulled  by  the  bankrupt  act, 
may  be  continued. 2  Where  foreclosure  in  State  court  has  commenced  prior 
to  mortgagor's  bankruptcy  the  State  court  may  proceed  with  the  suit,  de- 
creeing priority  of  liens  and  enforcing  their  satisfaction,  and  to  that  ex- 
tent infringe  the  bankrupt  court's  jurisdiction  to  administer  the  bank- 
rupt's estate;  3  the  assignee  must  make  himself  a  party  if  he  would 
assert  his  rights. -i  "Wliere  a  suit  by  the  bankrupt  is  pending  at  the  time 
of  bankruptcy  the  assignee  need  not  become  party  thereto,  but  is  bound  by 
the  decree.5  He  may,  however,  by  leave  of  the  bankrupt  court  continue 
such  suits. 6  The  exclusive  Federal  bankruptcy  jurisdiction  does  not  pre- 
vent bankrupt  assignees  from  suing  in  a  State  court.7  In  fact  under  the 
law  of  1S98,  the  bankrupt  court  has  no  jurisdiction  over  independent  suits 
by  the  trustee  to  assert  a  title  to  money  or  property  as  assets  in  bank- 
ruptcy unless  by  consent  of  the  proposed  defendant. « 

[m]     Controversies  where  a  State  is  party. 

This  clause  of  the  above  section  is  identical  with  the  declaration  of  the 
constitution  and  of  R.  S.  §  687,  which  further  vest  the  jurisdiction  in  the 
Supreme  Court.  10 

§  16.     Concurrent  and  conflicting  jurisdiction — personal  actions 
plea  of  another  action  pending. 

In  a  large  class  of  cases  there  is  a  concurrent  Jurisdiction  in 
Federal  and  State  courts^,  and  often,  even  where  there  is  no  concur- 

17 Winchester  v.  Heiskell,  119  U.  S.  Gibbs  v.  Logan,  22  W.  Va.   212;    In 

453,   30   L.  ed.  462,   7   Sup.   Ct.  Rep.  re  Ogles,  93  Fed.  437. 

281.  S.Jerome  v.  McCarter,  94  U.  S.  737, 

isMays   v.    Fritton,    20    Wall.    414,  24  L.  ed.  136. 

22  L.  ed.  -389;  Scott  v.  Kellv,  22  Wall.  *  Young  v.  Cardwell,  6  Lea,  172. 

59,  22  L.  ed.  730;  Davis  v.  Friedlan-  ^Thatcher   v.   Rockwell,   105   U.   S. 

der,  104  U.  S.  570.  2G  L.  ed.  818.  467.  26  L.  ed.  949;  Sullivan  v.  Rabb, 

isThatcher  v.  Rockwell,   105  U.  S.  86   Ala.    440,    5    So.    749;    Lancey    v. 

469,  26  L.  ed.  950.  Foss.  88  Me.  218,  33  Atl.   1072. 

20Eyster  v.  Gaff,  91   U.  S.  521,  23  sSee   post,    §    2202    et    passim. 

L.  ed.  403;    Brackett  v.   Davton,   34  'Claflin  v.  Houseman,  93  U.  S.  134, 

Minn.  221.  25  N.  W.  349.        "  23  L.  ed.  837. 

iBurbank  v.  Bigelow,  92  U.  S.  182.  sBanlos  v.  Hawarden  Bank,  178  U. 

23L.  ed.  542.  S.    524,  44   L.   ed.    1177,    20   Sup.   Ct. 

2Davis    V.    Friedlander,    104    U.    S.  Rep.  1000:  see  post,  S  2204;  Shoshone 

."0,  26  L.  ed.  818;    .Mattocks  v.  Far-  Min.    Co.    v.    Rutter,    177    U.   S.    505, 

rinirton.  2  Ileisk.   333,  Fed.  Cas.  No.  20  Sup.  Ct.  Rep.   726.  44  L.  ed.  864. 

9.298;    Crowe   v.   Reid,   57    Ala.   287;  loSee  post,   §  35 

131 


§   16   [a]  FEDERAL    JURISDICTION    IN    GENERAL.  [Code  Fed. 

rent  power,  tliere  exists  a  possibility  of  conflict  as  a  result  of  pro- 
ceedings drawing  property  into  the  custody  of  one  or  other  court; 
or  resulting  from  the  action  of  a  State  in  taking  into  custody  a  per- 
son who  claims  his  detention  to  be  in  violation  of  some  Federal 
right.  Several  rules  have  been  adopted  by  the  courts  for  the  pur- 
pose of  avoiding  conflict  in  such  cases  and  to  insure  harmony  of 
action.  These  rules  distinguish  broadly  between  actions  merely 
personal  and  those  in  which  the  litigation  revolves  about  some  prop- 
erty actually  or  constructively  in  custody.  In  merely  personal  ac- 
tions the  general  rule  is  that  the  court  first  acquiring  jurisdiction 
is  entitled  to  retain  it  to  the  exclusion  of  any  other  Court,  until  its 
jurisdiction  is  exhausted,  f^^  But  the  courts  have  not  been  liberal 
in  their  interpretation  of  this  rule,  and  it  is  of  but  limited  applica- 
tion as  between  Federal  and  State  courts.  In  fact  the  plea  of  a 
prior  action  pending  is  not  available  unless  the  two  cases  be  the 
same  as  to  subject  matter  and  relief  sought,^''^  and  as  to  parties,^°^ 
and  in  the  same  jurisdiction.'^'*^  And  the  authorities  further  de- 
clare, though  it  is  perhaps  not  finally  settled,  that  the  plea  is 
not  at  all  available  as  between  Federal  and  State  courts  even  if 
sitting  in  the  same  State"^*^^  though  proceedings  in  the  Federal 
action,  where  subsequently  instituted  will  often  be  stayed.  ^'^  Where 
the  first  action  is  dismissed  it  can  no  longer  be  pleaded  in  abate- 
ment. ^^^  The  common  law  and  maritime  remedies  are  so  different 
that  the  same  right  of  action  may  be  sued  upon  concurrently  in  com- 
mon law  and  admiralty  courts. "^^ 
Author's  section. 

[a]     Priority  gives  right  to  retain  cause  until  conclusion. 

It  has  been  declared  in  many  cases  that  as  between  courts  having  con- 
current jurisdiction,  the  one  whose  jurisdiction  first  attaches  retains  it 
to  the  exclusion  of  the  other,  until  its  duty  is  fully  performed  and  the 
jurisdiction  involved  is  exhausted. i     The  jurisdiction  thus  attaching  can- 

iSmith   v.   Mclver.   9   ^Vlieat.   535,  Wadley,  172  U.  S.  164,  43  L.  ed.  390. 

6  L.  ed.   152;   Wallace  v.  McConnell,  19  Sup.  Ct.  Rep.  119;  Prout  v.  Starr, 

13  Pet.  151,  10  L.  ed.  95;  Freeman  v.  188  U.  S.  537,  47  L.  ed.  584,  23  Sup. 

Howe,   24  How.  455,   IG  L.   ed.   749;  Ct.  Rep.  398;  Sharon  v.  Hill,  13  Sawy. 

Buck   V.  Colbath.  3  Wall.  345,   18  L.  387,  SG  Fed.  337.  1   L.R.A.  572:   Rod- 

ed.  257;  Taylor  v.  Taintor,  16  Wall,  gors  v.   Pitt.   96   Fed.  670  and  cases 

370,  21  L.  ed.  287;  Ex  parte  Crouch,  cited.     See   Baltimore,   etc.  R.    R.   v. 

112  U.  S.   178.  28  L.  ed.  692;   5  Sup.  Wabash,  R.  R.  119  Fed.  678,  holding 

Ct.   Rep.    96;    Rio    Grande   R.    R.   v.  rule  does  not  apply  to  actions  strictly 

Gomila,  132  U.  S.  478,  33  L.  ed.  400,  in  i>ersonam. 
10  Sup.  Ct.   Rep.   157:    Harkrader  v. 

132 


Procedure]   CONCURRENT  AND   CONFLICTING  JURISDICTION.  §   10   [b] 

not  be  arrested  or  taken  away  by  proceedings  in  any  other  court.2  Xo 
other  court  of  concurrent  jurisdiction  should  entertain  subsequent  pro- 
ceedings tending  to  embarrass  the  administration  of  justice  in  the  first, 
either  by  denying  the  litigant  a  right  to  prosecute  his  claim  or  by  issuing 
its  process  in  an  attempt  to  remove  property  from  its  custody.3  Priority 
in  personal  actions  is  determined  by  the  time  that  parties  were  served 
with  process,  and  not  by  the  date  of  filing  the  two  actions. <  The  principle 
has  a  corollary  in  the  rule  that  where  Congress  has  taken  jurisdiction 
and  a  matter  is  there  pending  the  courts  will  not  take  it  up  and  decide  it.  5 

[b]  Second  suit  in  concurrent  jurisdiction  not  abated  unless  involving 
same  matters  and  for  same  relief. 
The  principle  excluding  action  in  a  concurring  jurisdiction  is  of  but 
limited  and  precise  application  in  suits  in  personam  where  there  is  no 
property  in  the  custody  of  the  law.  It  is  well  settled  that  when  the  plea 
of  another  or  rather  of  a  prior,?  action  pending  is  set  up,  the  case  must 
be  the  same  as  to  parties  rights  asserted,  and  relief  sought. s  Where  the 
relief  sought  is  different,  and  the  mode  of  proceeding  difi'erent,  the  juris- 
diction of  neither  is  aft'ected  by  the  other's  proceedings. »  The  pendency 
of  equity  proceedings  will  not  abate  later  proceedings  at  law.io  The  pend- 
ing ease  must  be  such  that  if  already  decided  the  adjudication  could  be 


2Stout  V.  Lve,  103  U.  S.  08,  26  L. 
ed.  428;  In  re  Chetwood,  165  U.  S. 
460,  41  L.  ed.  782,  17  Sup.  Ct.  Rep. 
385. 

3 Peck  v.  Jenness,  7  How.  624,  12 
L.  ed.  841;  Orton  v.  Smith,  18  How. 
266,  15  L.  ed.  393:  Tavlor  v.  Carrvl. 
20  How.  596,  15  L.  ed.  1028;  Zim- 
merman V.  So  Relle,  80  Fed.  417,  25 
C.  C.  A.  518. 

<Union,  etc.  Ins.  Co.  v.  Chicago 
Univ.  10  Biss.  191,  6  Fed.  443;  Mor- 
ton v.  Webb,  7  Vt.  123;  Sullinsr^  v. 
Goodyear,  etc.  Co.  36  Mich.  313;  Rod- 
gers  V.  Pitt,  96  Fed.  073:  Bell  v. 
Ohio  L.  &  T.  Co.  1  Biss.  260.  Fed. 
Cas.  No.  1,260.  As  to  actions  invol- 
ving property  in  custodia  legis  or 
proceedings  in  rem,  see  post,  §  17. 

sAstizaran  v.  Santa  Rita  M.  Co. 
148  U.  S.  83,  37  L.  ed.  376,  13  Sup. 
Ct.  Rep.  457. 

''The  plea  should  show  it  is  a  prior 
suit.  Crescent,  etc.  Co.  v.  Butchers, 
etc.  Co.  12  Fed.  225.  Pendency  of  a 
subsequent  suit  is  not  a  good  plea. 
Shoemaker  v.  French.  Chese  Doc.  •267  ; 
Sharon  v.  Hill,  26  Fed.  337;  Union, 
etc.  Ins.  Co.  v.  Chicago  Univ.  10  Biss. 
191.  6  Fed.  443:  Nicholl  v.  Mason,  21 
Wend.  341 ;  Nichols,  etc.  Co.  v.  Marsh, 


61  Mich.  509,  28  N.  W.  699;  Hauf 
V.  Wilson,  31  Fed.  384;  Green- 
wood V.  Rector.  Hempst.  708,  Fed. 
Cas.  No.  5.792;  Wood  v.  Lake, 
13  Wis.  84;  Akerly  v.  Vilas.  15 
Wis.  413;  Campbell  v.  Emerson,  2 
McLean,  33,  Fed.  Cas.  No.  2.357; 
Humphries  v.  Dawson,  38  Ala.  204. 

sWatson  v.  Jones,  13  Wall.  715, 
20  L.  ed.  666;  The  Haytian  Republic, 
154  U.  S.  124,  38  L.  ed.  930,  14  Sup. 
Ct.  Rep.  992. 

SWatson  v.  Jones,  13  Wall.  716,  20 
L.  ed.  666;  Loving  v.  Marsh,  2  Cliff. 
.323,  Fed.  Cas.  No.  8,514;  Ahlhauser 
V.  Butler,  50  Fed.  708;  Dwight  v.  Cen- 
tral, etc.  R.  R.  9  Fed.  789,  20  Blatchf. 
200;  Valley  Bank  v.  Shenandoah 
Bank.   109   Iowa,  43.   79  N.   W.   392. 

lOKittredge  v.  Race,  92  U.  S.  121, 
23  L.  ed.  488;  Andrews  v.  Smith,  19 
Blatchf.  100.  5  Fed.  833;  Currie  v. 
Lewi-ston,  15  Fed.  377,  21  Blatchf. 
2,36;  Green  v.  Underwood,  86  Fed. 
427,  30  C.  C.  A.  160;  Parsons  v. 
Creenville,  etc.  R.  R.  1  Hughes, 
279,  Fed.  Cas.  No.  10,776;  Wilcox, 
etc.  Co.  V.  Phenix  Ins.  Co.  61 
Fed.  199;  Seymour  v.  Malcolm,  etc. 
Co.  58  Fed.  961,  7  C.  C.  A.  593;  Gris- 
wold  V.  Bacheller,  77  Fed.  857. 


133 


§   IG   [c]  FEDKRAL    JURISDICTION    IN    GENERAL.  [Code  Fed. 

jjleaded  in  bar  of  the  second  suit.n  Hence  before  it  can  be  said  that  the 
jurisdiction  of  the  first  court  is  exclusive,  the  nature  of  the  remedies,  the 
character  of  the  relief  sought,  and  the  identity  of  the  parties  in  the  two 
suits,  must  first  be  examined.  Even  if  the  parties  be  the  same  the  relief 
sought  or  the  mode  of  proceeding  may  be  entirely  different.  As  where  a 
mortgagee  sues  at  law  for  judgment  on  his  notes,  in  equity  for  foreclosure, 
and  elsewhere  by  ejectment  for  possession  of  the  land. 12  A  creditor's 
suit  on  one  judgment  in  a  State  court  is  no  bar  to  a  similar  suit  by  the 
same  plaintiff  in  the  Federal  court  based  on  another  State  judgment. is  It 
has  been  held  that  a  Federal  judgment  may  be  revived  by  suits  in  both 
State  and  Federal  courts.14  A  suit  for  two  interest  instalments  is  not 
barred  by  a  prior  suit  for  other  instalments.!  5  Injunction  suit  against 
taxes  for  one  year  does  not  bar  similar  suit  for  subsequent  taxes.is  Suit 
to  subject  individual  partners'  assets  to  debt  is  no  bar  to  a  suit  on  same 
debt  to  reach  partnership  assets. 1 7  A  suit  in  personam  in  a  State  court 
seeks  a  verj'  different  remedj'^  from  admiralty  proceedings  in  rem,  and 
hence  can  be  no  bar.is  A  State  suit  to  determine  priority  between  two 
liens  will  not  prevent  a  general  creditors'  bill  in  a  Federal  court  to  adjust 
all  liens. 19  A  general  creditor's  suit  in  a  State  court  will  not  prevent  a 
suit  by  one  not  a  party,  in  the  Federal  court. 20 

[c]     Not  abated  where  parties  are  different. 

If  the  p;irties  to  the  two  suits  be  dift'erent  the  general  rule  is  that  the 
plea  is  not  available  and  the  second  suit  may  be  maintained.  1  The  suit  of 
one  set  of  bondholders  is  not  a  bar  to  suit  by  another  set  having  no  con- 
trol over  the  first. 2  A  stockholder's  suit  does  not  bar  creditor's  suit.s 
Some  cases  have  held  that  the  parties,  plaintiff  and  defendant,  to  the 
two  suits  must  be  in  the  same  relative  positions  and  not  reversed.*     In 

iiWatson   V.  Jones.   1.3  Wall.  715,        iWadleigh  v.  Veazie,  3  Sumn.  165, 

20  L.  ed.  666;  The  Haytian  Republic,  Fed.  Cas.  No.  17,031;   Cook  v.  Burn- 

154  U.  S.  124,  38  L.  ed.  930,  14  Sup.  ley,  11  Wall.  G59,  20  L.  ed.  29;  Mar- 

Ct.  Rep.  992.  shall  v.  Otto,  59  Fed.  249;  Washburn, 

i2Buck    V.    Colbath,    3    Wall.    345,  etc.  Co.  v.  Scutt,  22  Fed.  710;  Brooks 

346.  18  L.  ed.  261.  v.    Mills   Co.   4  Dill.   524,    Fed.   Cas. 

i3Scottish.  etc.   Co.   v.   Follansbee,  Xo.  1.955;  Oden  v.  Stubblefield,  2  Ala. 

9  Biss.  482,  14  Fed.  125.  088;  INIerrill  v.  New  England  Ins.  Co. 

i4Wonderly    v.    Lafayette    Co.    77  103  Mass.  249,  4  Am.  Rep.  551 ;  Wood 

Fed.  665.  v.  Lake,  13  Wis.   84;    Pierce  v.   Fea- 

iBHampton  v.  Barrett,  12  La.  159.  gans,  39  Fed.  587;  Converse  v.  Miclii- 

leLitchfield   v.   Brooklyn,   13  Misc.  gan,   etc.   Co.   45   Fed.    18;    Knott   v. 

(N.  Y.)    693,  34  N.  Y.  Siipp.  1090.  Evening  Post  Co.  124  Fed.  356. 

iTLogan  V.   Greenlaw,   12  Fed.   17.        2Brooks  v.  Vermont,  etc.  R.  R.  14 

isThe  Kolorama,  10  Wall.  204,  19  Blatchf.  465,  Fed.  Cas.  No.  1,964. 
L.  ed.  941;  The  Custer,  10  Wall.  2l5,  3Loyd  v.  Reynolds,  29  ±.A.  299. 
19   L.    ed.   944;    The   Paul   Boggs,    1        ^Liggett  v.  Glenn,  51   Fed.   389,  2 

Sprague,   369.   Fed.   Cas.   No.    10,846;  C.  C.  A.   286;   Wadleigh  v.  Veazie,  3 

The  Highlander,  1  Sprague,  510,  Fed.  .Sumn.  165,  Fed.  Cas.  No.  17,031;  In 

Cas.  No.  6.476.  re  Certain   Logs.   2   Sumn.   589,   Fed. 

isHay    V.    Alexandria,    etc.    Co.    1  Cas.  No.  2,559;   Barr  v.  Chapman,  5 

Hughes"^  108,  Fed.  Cas.  No.  6.254.  Ohio,  C.  C.  69. 

2oparsons  v.  Greenville,  etc.  R.  R. 
1  Hughes,  279,  Fed.  Cas.  No.  10,776. 

134 


FrocecUue]    CON'CURREXT  AND   CONFLICTING  JURISDICTION.        §   16    [d] 

some  cases  this  would  be  necessary  to  make  the  relief  sought  the  same  in 
both  cases. 3  An  action  against  one  obligor  is  not  pleadable  in  abatement 
of  a  subsequent  action  against  another. 6  Action  against  one  joint  tort 
feasor  is  no  bar  to  another  action  against  the  other. 'i' 

But  where  a  legal  priority  of  interest  or  estate  exists  between  the  par- 
ties to  the  two  suits,  of  such  a  nature  that  res  adjudicata  could  be  plead- 
ed had  the  prior  case  gone  to  judgment,  it  would  seem  that  the  plea  of 
prior  action  pending  would  not  be  impaired  by  a  difference  in  parties. 
Thus  a  stockholder's  suit  for  a  corporation  might  be  abated  by  plea  of 
prior  similar  suit  brought  by  the  corporation; 8  or  a  bankrupt  assignee's 
suit  by  a  prior  suit  of  his  assignor.^ 

[dj     Second  action  in  another  State  not  abated. 

It  is  well  settled  that  the  pendency  of  another  action  between  the  same 
parties  based  upon  the  same  rights  and  seeking  the  same  relief,  but 
brought  in  another  State,  is  not  a  good  plea.12  In  this  respect  the  States 
of  the  Union  are  foreign  to  one  another.i3  This  doctrine  has  been  rested 
by  some  authorities  upon  the  fact  that  the  efficacy  of  a  judgment  and  of 
process  in  its  behalf  cannot  extend  into  foreign  jurisdictions.! <  Other 
cases  declare  that  it  would  be  in  derogation  of  sovereignty  for  a  country  to 
remit  its  suitors  to  another  jurisdiction  for  the  vindication  of  rights 
which  they  are  entitled  to  maintain  in  its  tribunals.  A  court  which  ter- 
minated a  suit  by  sustaining  the  plea  of  a  prior  action  in  another  State, 
"might  learn  too  late  that  no  adequate  remedy  can  be  had  elsewhere.  That 
country  is  undutiful  and  unfaithful  to  its  citizens  which  sends  them  out 
of  its  jurisdiction  to  seek  justice  elsewhere.  ...  it  does  not  know 
what  is  practicable  in  a  foreign  jurisdiction;  what  the  mode  of  trial  there, 
the  rules  of  evidence,  the  statutes  of  limitation;  or  what  the  kind  of 
judgment  and  satisfaction."! 5  The  same  rule  applies  to  a  suit  in  the 
courts  of  a  foreign  nation. 1 6  But  a  second  suit  in  another  county  of  the 
same  State  will   be  abated  under  this  plea.  1 7     It  results  from  this  prin- 

BSee   St.wart   v.    Chesapeake,   etc.  Embrev,  93  U.  S.  548,  23  L.  ed.  983; 

Co.  4  Hughes,  41,  5  Fed.  149:  Errett  McJilton  v.  Love,  13  111.  494,  54  Am. 

V.  Crane,  21  Int.  Rev.  Rec.  2G8,  Fed.  Dec.  449;  Lockwood  v.  Nye,  2  Swan, 

Cas.  No.  4,523.  (Tenn.)   515,  58  Am.  Dec.  73;  Grider 

sMercantile    T.    Co.     v.     Lamoille,  v.  Apperson,  32  Ark.  332;  Merritt  v. 

etc.  R.  R.  16  Blatchf.  324,  Fed.  Cas.  American  S.  B.  Co.  79  Fed.  228,  24 

No.  9,432;  Utica,  etc.  C\).  v.  Otis,  37  C.   C.   A.   530;    Cole  v.   Flitcraft,   47 

Hun,   301;    Oneida  Bank   v.  Bonney,  Md.  312. 

101  N.  Y.  173,  4  N.  E.  332.  isSmith  v.  Lathrop,  44  Pa.  St.  326, 

TState   V.    Boyce.    72   Md.    142,    20  84  Am.  Dec.  448. 

Am.    St.    Rep.    459,    19    Atl.    3GG,    7  i^See   Cox  v.   JNIitchell,  7  Cora.  B. 

L.R.A.  272.  N.  S.  55. 

sMemphis  aty  v.  Dean,  8  Wall.  64,  isHatch  v.  Spofford,  22  Conn.  485, 

19  L.  od.  32(5.  58  Am.  Dec.  437. 

niadfurd  V.  Folsom,  14  Fed.  97,  4  i6\Vood     v.      Gamble,      11      Cush. 

McCrary  527.  (Mass.)    8,  59  Am.  Dec.  135;  Lowrj' 

isReiiner  v.  Marshal,  1  Wlieat.  217,  v.  Hall,  2  Watts   <x,   S.   129,  37  Am. 

4  L.  ed.  74;  Insurance  Co.  v.  Brune,  Dec.  495. 

96  U.  S.  593,  24  L.  ed.  737;   Briggs  iTClaywell   v.   Sudderth,  77   N.   C, 

V.  Stroud,   58   Fed.   720;    Stanton   v.  287. 

135 


§    16   [1]  FEDERAL  JURISDICTION  IN  GENERAL.  [Cde   Fed. 

ciple  that  a   second  action  brought  in  another   State  and  not   concerning 
property  in  the  custody  of  the  first  court  will  not  be  enjoined.i* 

[e]     Rule  as  between  State  and  Federal  courts  in  same  State. 

Another  important  limitation  upon  the  availability  of  the  plea  of  prior 
action  pending,  grows  out  of  the  doctrine  that  the  State  and  Federal  courts 
within  the  same  State  are  deemed  foreign  to  one  another  ;19  hence  that  a 
plea  of  prior  action  pending  in  a  State  court  will  not  abate  a  second 
suit  in  the  Federal  court. 20  State  court  cases  have  similarly  declared  that 
a  pending  Federal  suit  will  work  no  abatement  of  a  suit  in  the  State 
court. 1  In  a  number  of  cases  the  doctrine  has  been  criticized  and  denied, 2 
though  all  the  late  authorities  at  circuit  regard  it  as  no  longer  open  to 
question.  In  many  of  those  asserting  the  doctrine  the  plea  was  open  to 
other  objections.  In  some  the  other  actions  pending  was  not  a  prior 
actions  or  was  between  other  parties,"*  or  for  a  different  remedy,  or  sought 
a  different  relief. 5     In  others   the   prior  Federal   or   State  action   was   in 

islnsurance  Co.  v.  Brune,  96  U.  S.  GO  Fed.  786;  O'Callaghan  v.  O'Brien, 

593,  24  L.  ed.  737.  116    Fed.    9^4;    Boatmen's    Bank    v. 

isWadleigh  v.  Veazie,  3  Sumn.  165,  Fritzler,    135   Fed.   3.50,  68   C.   C.   A. 

Fed.  Cas.  No.  17,031 ;  Latham  V.  Chaf-  288;   Barnsdale  v.  Waltenmeyer,  142 

ee,   7    Fed.    520;    j^ynch  v.   Hartford,  Fed.  415. 

etc.  Ins.  Co.   17   Fed.   627;    Wood  v.  iMix  v.  Creditors,  39  La.  Ann.  626, 

Lake,  13  Wis.  84;   Hampton  v.  Bar-  2  So.  393;   State  v.  Railroad  Co.  42 

rett,  12  La.  159.     Contra,  see  Brooks  La.  Ann.  18,  7   So.  86;   Bourgeois  v. 

v.  Mills  Co.  4  Dill.  524,  Fed.  Cas.  No.  Jacobs,  45  La.  Ann.  1314,  14  So.  70: 

1,955;    Earl   v.  Raymond,  4  McLean,  Kilpatrick  v.   Kansas,   etc.  R.   R.   38 

233,  Fed.  Cas.  No.  4,243;  Radford  v.  Neb.   641,   41    Am.   St.   Rep.   757,   67 

Folsom,  14  Fed.  97,  4  McCrary  527;  N.    W.    671.     Contra,    see   Wilson   v. 

Pierce  v.  Feagans,  39  Fed.  587;   Coe  Milliken,  103  Ky.  165,  44  S.  W.  661, 

V.   Aiken,   50  "^Fed.  640;   Marshall   v.  82  Am.  St.  Rep.  578.  42  L.R.A.  451. 

Otto,  59  Fed.  249;  Smith  v.  Atlantic,  And   see  Sharon   v.   Terry,   13  Sawy. 

etc.  Co.  22  N.  H.  21.  399,  36  Fed.   355,   1   L.R.A.   572,  per 

2  0Piquignot   v.   Railroad,   16   How.  Field,  J. 

105,  14  L.  ed.  864;   Cook  v.  Burnley,  2See   Martin  v.   Baldwin,   19   Fed. 

11    Wall.   659,  20  L.   ed.   30;    Gordon  340,  9  Saw.y.  632;   Earl  v.  Raymond, 

v.  Gilfoil,  99  U.  S.  178,  25  L.  ed.  383;  4  McLean,  "233,  Fed.  Cas.  No.  4,243; 

Stanton  v.  Embrey,  93  U.  S.  548,  23  Nelson  v.  Foster,  5  Biss.  44,  Fed.  Cas. 

L.    ed.    983;    Wadleigh    v.    Veazie,    3  No.  10,105;  Brooks  v.  Mills  Co.  4  Dill. 

Sumn.    165,    Fed.    Cas.    No.    17,031;  524,   Fed.  Cas.  No.   1,955;   Brooks  v. 

Loring     v.      Marsh,     2     Cliff.      311,  Vermont  C.   R.   Co.   14  Blatchf.   463, 

Fed.     Cas.    No.    8,514;     Union,    etc.  Fed.  Cas.  No.  1,964.    See  29  Am.  St. 

Co.     V.     Chicago     Union,     10     Biss.  Rep.   310,   312,   note.     The    Supreme 

191,    6    Fed.    443;    White    v.    Whit-  Court  has  not  always  recognized  the 

man,    1    Curt.    494,    Fed.    Cas.    No.  doctrine.     Memphis  v.  Dean,  8  Wall. 

17,561 ;  Latham  v.  Chafee,  7  Fed.  520;  64,  19  L.  ed.  326. 

North    Muskegon   v.   Clark,   62   Fed.  3 See  cases  cited,  footnote  20. 

694,  10  C.  C.  A.  591 ;   Short  v.  Hep-  ^See  cases  cited  supra,  note.W 

burn,  75  Fed.  113,  21   C.  C.  A.  252;  BLoring  v.  Marsh,  2  Cliff.  323,  Fed. 

Green  v.  Underwood,  86  Fed.  429,  30  Cas.  No.  8,514;  Ahlhauser  v.  Butler, 

C.    C.   A.    162;    First    Nat.    Bank    v.  50  Fed.  708;   Dwight  v.  Central,  etc. 

Duel  Co.   74  Fed.  375;    Bunker   Hill,  R.   R.    9   Fed.   789,   20   Blatchf.   200; 

etc.  Co.  V.  Shoshone  M.  Co.  109  Fed.  Scottish,    etc.    Co.    v.    FoUansbee,    9 

508,   47    C.   C.   A.    200;    Robinson   v.  Biss.    482,    14    Fed.    125;    Wonderly 

Suburban  Brick  Co.  127  Fed.  807,  6i  v.     Lafayette     Co.     77      Fed.     665; 

C.    C.   A.   484;    Ryall   v.   Greenhood,  Shaw    v.    Lyman,    79    Fed.    2;    The 

136 


I'rocediue]    CONCURRENT   AND  CONFLICTING  JURISDICTION.  §   IC    [ej 

another  State. 6  Other  cases  were  proceedings  in  rem  or  otherwise  con- 
cerned with  property  in  the  custody  of  the  law  as  to  which  other  prin- 
ciples are  controlling;  ^  or  with  bankruptcy  proceedings  supervening  upon 
prior  litigation  in  State  courts,  in  which  the  Federal  jurisdiction  becomes 
paramount  if  not  exclusive; 8  or  with  State  probate  proceedings,  as  to 
which  the  Federal  courts  possess  certain  well  defined  auxiliary  powers  ;3 
or  with  the  effect  of  State  garnishment  or  attachment  upon  a  Federal 
suit.io  None  of  the  decisions  of  the  Supreme  Court  involved  the  precise 
point.  The  leading  case  merely  decided  that  Louisiana  proceedings  for  seiz- 
ure and  sale  based  upon  a  mortgage,  did  not  oust  subsequent  Federal  pro- 
ceedings to  obtain  judgment  on  the  mortgage  note.n  The  parties  were 
the  same  and  the  second  suit  grew  out  of  the  same  matter,  but  the  relief 
sought  was  different,  so  that  the  case  comes  within  the  very  terms  of  an 
illustration  employed  by  Mr.  Justice  Miller  in  an  earlier  casei2  and  within 
the  general  limitations  upon  the  availability  of  the  plea  of  a  prior  action, 
already  considered. is  So  also  in  the  earliest  decision  on  the  point,  which 
has  been  relied  upon  largely  for  the  doctrine,  the  position  of  the  parties 
was  reversed  in  the  two  actions  and  Mr.  Justice  Story  consequently  de- 
clared the  causes  of  action  to  be  different  and  the  plea  of  prior  action 
pending  unavailable.! * 

It  would  perhaps  be  imsafe  to  declare  the  rule  finally  settled  until  pre- 
sented and  decided  in  the  Supreme  Court  after  a  full  consideration  of  the 
reasoning  upon  which  it  is  founded,  and  in  the  light  of  their  established 
doctrine  that  the  court.  Federal  or  State,  first  taking  jurisdiction  holds  it 
"to  the  exclusion"  of  the  other.is  As  between  courts  sitting  in  different 
States,  there  is  a  manifest  propriety  in  permitting  both  proceedings,  since 
judgment  and  process  in  one  can  have  no  efficacy  in  the  other,  and  a 
suitor  should  be  permitted  to  vindicate  his  rights  in  any  place  where  he 
can  secure  their  practical  enforcement.  But  this  reason  for  permitting  a 
second  suit  does  not  obtain  as  between  State  and  Federal  courts  in  the 
same  State.  The  reasons  generally  advanced  in  such  cases  that  being 
courts  of  different  governments  they  are  foreign  to  one  another  and  that 
it  would  be  a  derogation  of  sovereignty  for  one  to  remit  a  suitor  wholly 
to  the  other,  do  not  seem  of  much  weight.  A  Federal  tribunal  is  provided 
by  the    removal    act   for    one  sued    in  a  State    court,  in   most    cases   of 

Kolorama.     10     Wall.     204.     19     L.  SLeidigh  C.  Co.  v.  Stengel,  95  Fed. 

ed.   941 ;    The   Custer,   10   Wall.   215,  642,  37  C.  C.  A.  210. 

19  L.  ed.  944;  Sharon  v.  Hill,  22  Fed.  SBremdel  v.   Church,   82   Fed.   262; 

29,  30,  10  Sawy.  394 :   Pierce  v.  Fea-  see  ante,  §  2,  note.[  ] 

gans,   39    Fed.    588:    W^ashburn,    etc.  lODeming   v.    Orient    Ins.    Co.    78 

Co.  v.   Scutt,   22   Fed.   711;    and   see  Fed.  4. 

other     Federal     cases     cited     supra,  n  Gordon  v.  Gilfoil,  99  U.  S.   168, 

note  [b].  25  L.  ed.  386. 

«Stanton  v.  Embrey,  93  U.  S.  548,  i2Buck    v.    Colbath,    3    Wall.    345, 

23  L.  ed.  983;  Rawntzer  v.  Wyatt,  40  346,  18  L.  ed.  261. 

Fed.  609;   Woodbury  v.  Allegheny  &  i3See  supra,  note.[b]-[d] 

K.  R.  Co.  72  Fed.  374;  Robinson  v.  i^Wadleigh  v.  Veazie,  3  Sumn.  165, 

Suburban  Brick  Co.   127   Fed.  807.  Fed.  Cas.  No.  17.031. 

TGates  v.  Bucki,  53  Fed.  965,  4  C.  isSee  supra  note.W 
r.  A.  116. 

137 


§   16   [f]  FEDERAL    JURISDICTION    IN    GENERAL.  [Code  Fed. 

Federal  cognizance.  The  terms  upon  which  litigants  can  avail  themselves 
of  their  constitutional  right  to  a  Federal  tribunal  being  thus  lawfully  de- 
fined, cases  of  this  type,  at  least  where  the  two  actions  are  between  the 
same  parties, 1 6  are  not  controlled  by  compelling  constitutional  principles. 
The  question  is  merely  one  of  expediency  and  good  sense.  The  theory  that 
a  litigant  should  not  be  compelled  to  remain  in  a  tribunal  whose  rules  of 
procedure  and  capacity  for  affording  relief  are  or  may  be  different,  is 
opposed  to  the  ever  broadening  spirit  of  comity  prevailing  throughout  the 
Anglo  Saxon  world;  and,  since  it  was  declared,  the  principle  has  become 
firmly  settled  that  a  judgment  rendered  in  another  State,  in  England,  or 
in  Canada,  may  be  pleaded  as  res  adjudicata,  if  it  appear  that  such  court 
had  proper  jurisdiction.!  7 

[f]  Second  court  should  suspend  action  until  first  court  decides. 

The  embarrassment  threatened  by  the  rule  that  the  Federal  court  will 
not  entertain  a  plea  of  a  prior  action  for  the  same  matter  in  the  State 
court,  is  greatly  mitigated  by  the  further  rule  declared  in  the  late  cases 
that  the  Federal  court  will  suspend  action  pending  a  decision  by  the  court 
first  acquiring  jurisdiction.!  s  Other  cases,  however,  do  not  consider 
that  comity  requires  even  this  forbearance  where  one  case  is  at  law  and 
the  other  in  equity,!  9  or  where  the  actions  are  personal  and  no  res  is 
in  the  custody  of  the  first  court;  but  merely  affirm  that  the  judgment  of 
the  court  first  concluding  its  deliberations  may  be  pleaded  in  the  other. ^o 
But  where  a  State  suit  for  divorce  and  alimony  proceeded  concurrently 
with  a  prior  Federal  suit  in  equity  for  cancellation  of  the  alleged  mar- 
riage contract  as  a  forgery,  the  Federal  court  refused  to  accept  the  State 
court's  finding  that   the  document  was  genuine.! 

[g]  Effect  of  dismissal  of  prior  action. 

Where  the  prior  action  has  been  dismissed  it  cannot  be  pleaded  in  abate- 
ment of  the  subsequent  suit.*  Although  many  early  cases  did  not  permit 
an   avoidance   of   the   plea   dismissal   of  the   first   action   after   such   plea 

isWhen  the  parties  are  different,  it  671;    Bunker,    etc.    Co.    v.    Shoshone 

is  very  properly  held  that  those  en-  Min.  Co.  109  Fed.  508. 

titled    to   a  Federal  tribunal   should  !90gden  v.  Weaver,  108  Fed.   567, 

not     be     deprived     thereof     because  568,  47  C.   C.  A.  485. 

others  have  elected  or  must  elect  a  soghaw  v.  Lyman,  79  Fed.  2.     See 

State  court.     See  Shaw  v.  Lyman,  79  Stout  v.  Lye,  103  U.  S.  68,  26  L.  ed. 

Fed.  2.  428;    Bruce    v.    IManchester,    etc.    Co. 

iTHatch  V.  Spofford,  22  Conn.  485,  19  Fed.  345;   Memphis,  etc.  R.  R.  v. 

58  Am.  Dec.  437.  Gravson,    88    Ala.    579,    16    Am.    St. 

!SHurd  v.  Moiles,  28  Fed.  899;  Ball  Rep"  74,  7  So.   124. 

V.  Tompkins,  41  Fed.  486,  491;  How-  iBoatmen's   Bank   v.   Fritzler,    135 

left  V.  Central,  etc.  Co.  56  Fed.  161;  Fed.  650,  68  C.  C.  A.  288;  Sharon  v. 

Folev  V.  Hartley,   72  Fed.  570,  571;  Terrv,  36  Fed.  339,  340,  13  Sawv.  387, 

Gamble   v.   San '  Diego,   79   Fed.   487,  1  L.R.A.  572 

500;  Zimmerman  v.  So  Relle,  80  Fed.  ^Chamberlain  v.  Eckert,  2  Biss.  124, 

417,  25  C.  C.  A.  518;  Hughes  v.  Green,  Fed.  Cas.  No.  2,576;  Weaver  v.  Field, 

84   Fed.    833,    835,   28    C.   C.   A.    537;  16    Fed.    22;    4   Woods,    152;    Coe    v. 

Rvan    V.   Railroad   Co.   89    Fed.    397,  Aiken,  50  Fed.  640;  North  Muskegon 

408;    Rodgers   v.   Pitt,   96    Fed.   668,  v.  Clark,  62  Fed.  694,  10  C.  C.  A.  591; 

138 


Procedure]      CONCURRENT  AND   CONFLICTING  JURISDICTION.  §   17 

was  filed,  the  later  authorities  permit  a  replication  to  the  plea  showing 
such  a  subsequent  dismissal. 5  At  least  where  the  second  suit  does  not 
appear  to  have  been  vexatiously  brought.  6 

[hj     Admiralty  causes. 

A  party  is  often  in  a  position  to  pursue  a  remedy  in  admiralty,  or  a 
common  law  remedy  in  some  other  court. 8  The  admiralty  remedy  is  so  dif- 
ferent from  that  accorded  by  the  common  law  that  one  proceeding  is  no 
bar  to  the  other.  The  pendency  of  a  prior  suit  in  personam  in  a  State  court 
for  supplies  is  no  bar  to  a  libel  in  rem  in  admiralty. 9  Garnishment  of 
freight  money  in  a  State  court  will  not  prevent  admiralty  libel  in  rem 
for  seamen's  wages jio  nor  will  the  obtaining  of  a  State  court  judgment 
prevent  the  filing  of  a  libel  in  rem  for  wages. n  Bj'  a  parity  of  reason- 
ing a  pending  Federal  a4,iion  in  admiralty  is  no  bar  to  a  common  law  ac- 
tion in  the  State  court. 12  The  commencement  of  proceedings  in  admiralty 
for  the  benefit  of  the  limited  liability  act,  does  not  ipso  facto  terminate 
suits  for  damages  pending  in  the  State  courts,i3  though  the  Federal  court 
is  empowered  to  restrain  their  further  prosecution  if  the  right  to  a  limi- 
tation of  liabilitv  seems  clear.i* 


§  17,  — property  in  custody  of  the  law  and  garnishment  cases. 
Another  rule  adopted  with  a  view  to  avoiding  conflict,  is  that 
where  property  is  in  the  actual  or  constructive  custody  of  one 
court,  it  acquires  an  exclusive  dominion  over  it  and  other  courts 
are  powerless  to  interfere  therewith. ^^^  As  between  conflicting 
seizures  under  mesne  or  final  process,  the  first  in  point  of  time 
prevails.™     But  priority  of  actual  seizure  is  not  the  determining 

Hughes  V.  Green,  84  Fed.  833.  28  C.  22    Fed.    Cas.    818.    822;     The    Cerro 

C.  A.  537 :  State  v.  Xew  Orleans,  etc.  Gordo,    62    Conn.    580,    54   Fed.    392. 

Co.  42  La.  Ann.  11,  7  So.  84;   Clark  See  Fisher  v.  The  Plymouth,  2  Int. 

V.  Comford,  45  La.  Ann.  502,  12  So.  Rev.  Rec.   109.   Fed.   Cas.   No.   4,822. 
763.  lOThe  Caroline,   1   Low.   173,   Fed. 

sChamberlain    v.    Eckert.    2    Biss.  Cas.    No.    2,419;    The    Sailor   Prince, 

124,  Fed.  Cas.  No.  2,576;   Warder  v.  1   Ben.  237,   Fed.   Cas.   No.   12,218. 
Henry,   117  Mo.   530,   23   S.   W.   776,        nThe  Isabella,  1  Brown,  104,  Fed. 

Tra-wick  v.   Martin    B.    Co.    74   Tex.  Cas.  No.  7,100. 

522,  12  S.  W.  216;  Gridcr  v.  Apper-        isPeople,   etc.   v.   Judge,   27   Mich, 

son,  32  Ark.  332;   Findlav  v.  Keim.  408.   15  Am.  Rep.   197;   Caine  v.   Se- 

62  Pa.   St.    113;    Moorman  v.    Gibbs,  attle.    etc.    R.    R.    12    Wash.    596,    41 

75  La.  537,  39  N.  W.  632 :  Nichols  v.  Pac.  904. 

State  Bank,  45  Minn.  102.  47  N.  W.        isParcher  v.  Cuddv,  110  U.  S.  743, 

462.  28  L.  ed.   312;   4  Sup.  Ct.  Rep.   194. 

sWillson  V.  ]Milliken,  103  Ky.  107,        i-J Providence,  etc.  Co.  v.  Hill  Mfg. 

44  S.  W.  664,  82  Am.   St.  Rep.  578,  Co.  109  U.  S.  578,  27  L.  ed.   1038,  3 

42  L.R.A.  449.  Sup.  Ct.  Rep.  379.  617;  The  Tolches- 

8See  ante,  §  15.[<3]-[n  ter,  42  Fed.  184;  In  re  Whitelaw,  71 

3The  Kolorama.   10   Wall.   204,    19  Fed.  735;  In  re  Long,  etc.  Co.  5  Fed. 

L.  ed.  941;  The  Custer,  10  Wall.  215,  627. 
19  L.  ed.  944;  The  Alexander  McNeil, 

139 


§   17   [a]  FEDERAL   JURISDICTION   IN    GENERAL.  [Code  Fed. 

factor  as  respects  a  probate  court's  custoch-  of  a  decedent's  estate, 
or  a  bankruptcy  or  insolvency  court's  possession  of  a  debtors  prop- 
erty. Death  and  the  voluntary  act  of  tlie  debtor  place  the  property 
in  custodia  legis  regardless  of  any  actual  seizure.  Nor  is  it  the 
determining  factor  in  cases  quasi  in  rem  where  a  taking  of  property 
into  custody  is  prayed  or  clearly  contemplated  by  the  institution  of 
the  proceeding.  In  such  cases  the  commencement  of  the  proceed- 
ings initiates  a  priority  of  right  to  take  possession,  which  should 
I)revail  though  actual  seizure  was  first  made  in  a  subsequent 
suit.f*^^"'^^^  But  other  courts  of  competent  jurisdiction  may  often 
entertain  proceedings  respecting  the  property  in  custody,  such  as 
establishing  claims  against  it,  so  long  as  they  do  not  attempt  to 
take  possession  of  the  property  or  embarr'ivas  the  proceedings  of  the 
court  having  custody.^'^  Upon  termination  of  one  court's  pos- 
session, others  are  at  liberty  to  proceed  against  the  property. ^^^  It 
is  competent  to  show  that  the  seizing  court  has  no  jurisdiction  or 
that  the  seizure  is  unauthorized.  ^'^^  When  a  person  sued  in  one 
court  is  garnished  out  of  another,  the  question  which  of  the  two 
actions  shall  proceed  is  determined  by  ascertaining  which  was  first 
instituted,  f'^ 

Author's  section. 

[a]     Property  in  custody  of  the  law. 

Imperative  considerations  require  an  observance  of  the  rule  that  property 
in  the  possession  or  custody  of  one  court  shall  not  be  taken  or  disturbed 
by  process  or  other  proceeding  in  another  court  of  concurrent  jurisdic- 
tion. In  other  words  the  court  first  obtaining  custody  of  the  res,  has  the 
paramount  right  to  proceed.!  The  rule  applies  to  property  in  custodia 
legis  by  virtue  of  probate,2  bankruptcy  or  insolvency  proceedings,^  or  by 
virtue  of  a  receivership,*  as  well  as  to  property  held  by  sheriff  or  marshal 

iHagan   v.   Lucas,    10   Pet.    404,   9  wood.   165  U.   S.  4G0,  41   L.  ed.  782, 

L.  ed.  470;  Taylor  v.  Carryl.  20  How.  17  Sup.  Ct.  Rep.  385. 
595,  15  L.  ed.  1028;  Riggs  v.  Johnson        sFreenian   v.   Howe,  24   How.   455, 

Co.  6  Wall.  166,  18  L.  ed.  768;  Covell  16  L.  ed.  749. 

v.  Heyman,  111  U.  S.  180,  28  L.  ed.        3Byers  v.  McCauley,  149  U.  S.  614, 

390,   4  Sup.    Ct.   Rep.    355;    Buck   v.  37  L.  ed.  867,   13  Sup.  Ct.  Rep.  906. 
Colbath,  3  Wall.  341.  18  L.  ed.  257;         ^Tua  v.  Carriere.  117  U.  S.  208,  29 

Tua  v.  Carriere,  117  U.  S.  208,  29  L.  L.  ed.  855,  6  Sup  Ct  Rep  565;   Peale 

ed.  835,  6  Sup.  Ct.  Rep.  565;  Byers  v.  v  Phipps,  14  How  368,  375,  14  L.  ed. 

McCauley,    149  U.   S.    614,   37   L.   ed.  459;    Cleilinger    v.    PbilipT>i,    133    U. 

867,  13  Sup.  Ct.  Rep  906;   Moran  v.  S.  257,  33  L.  ed.  617,  10  Sup.  Ct.  Rep. 

Sturges,  154  U.  S.  274,  38  L.  ed.  981,  266,  269:  Security  T.  Co.  v.  Union  T. 

14  Sup.  Ct.   Rep.   1019;   In  re  Chet-  Co.  134  Fed.  301. 

140 


Procedure]    CONCURRENT    AND    CONFLICTING   JURISDICTION.      S   17   [b] 

under  mesne  or  final  process  of  attachment,5  replevin,6  execution,  or  other- 
wiseJ  It  requires  the  Federal  courts  to  respect  the  prior  possession  ot 
a  State  courts  quite  as  much  as  it  demands  a  respect  by  State  courts  for 
the  prior  possession  of  a  Federal  tribunal.!*  When  one  coordinate  court 
takes  into  custody  a  specific  thing,  it  is  withdrawn  from  the  judicial 
power  of  the  other. lo  A  marshal  and  sheriff  cannot  make  a  joint  levy.n 
But  the  fact  that  a  State  court  in  a  replevin  suit  has  transferred  certain 
personalty  of  a  corporation  from  its  vice  president  to  the  company,  does 
not  put  the  property  in  custodia  legis  so  as  to  prevent  a  Federal  court 
appointing  a  receiver  of  the  corporate  property  and  franchises  in  a  suit 
to  enforce  a  lien. 12  By  R.  S.  §  934  property  seized  by  a  Federal  officer 
under  authority  of  a  revenue  law  is  irrepleviable  and  to  be  deemed  in 
custodia  legis.is  If  one  court  having  obtained  actual  custody,  ascertains 
that  another  is  rightfully  entitled,  it  has  been  said  that  it  may  hold  the 
property  until  the  latter  through  its  proper  officers  requests  and  offers 
to  receive  it.i* 

[b]     When  court's  exclusive  possession  deemed  to  attach. 

In  cases  involving  a  levy  upon  and  actual  seizure  of  property,  priority 
of  possession  is  not  determined  by  ascertaining  which  action  was  first 
commenced,! 5  nor  which  writ  was  first  issued,i6  but  depends  upon  the 
time  when  possession  or  what  the  law  deems  a  taking  of  dominion  or  pos- 
session has  actually  occurred.i^  If  the  property  is  capable  of  manual  de- 
livery there  must  be  a  manual  taking  possession,  and  where  both  sheriff 

sCalhoun  v.  Lanaux.  127  U.  S.  6.34,  S.    409,   45   L.    ed.    927,    21    Sup.   Ct. 

32  L.  ed.  297,  8  Sup.  Ct.  Rep.  1345;  Rep.  709. 

Shields   v.   Coleman,   157   U.   S.    177,  isSee  post,  §  1386. 

39  L.  ed.  660.  15  Sup.  Ct.  Rep.  570.  i4Boatmen's  Bank  v.  Fritzlen,  135 

cMelvin  v.  Robinson,  31  Fed.   635,  Fed.  650,  68  C.  C.  A.  288. 

Porter  v.  Davidson,  62  Fed.  627;  Do-  i^Wilmer  v.  Atlanta,  etc.  R.  R.  Co. 

mestic,  etc.   Co.  v.   Hinman,   13   Fed.  2  Woods,  426,  Fed.  Cas.  No.  17,775; 

161,   2  McCrary,  543;   United  States  Heidritter  v.   Elizabeth,   etc.   Co.   112 

V.  Dantzler,  3  Woods,  719,  Fed.  Cas.  U.  S.  294,  28  L.  ed.  729,  5   Sup.  Ct. 

No.  14.017;  First  Nat.  Bank  V.  Dunn,  Rep.    135;    East    Tennessee,    etc.    R. 

97  N.  Y.  155,  49  Am.  Rep.  518.  R.  v.  Atlanta,  etc.  R.  R.  49  Fed.  610, 

^Prince  v.  Bartlett,  8  Cranch.  434,  611,  15  L.R.A.  109;  Schaller  v.  Wick- 

3  L.  ed.  614;   Coveli  v.  Ileynian,  111  ershan,  7   Coldw.  381;   Longstreet  v. 

U.  S.  180,  28  L.  ed.  390,  4  Sup.  Ct.  Hill,  11  Hei.sk.  56. 

Rep.  355.  isWilmer    v.    Railroad,    2    Woods, 

sPrince  v.  Bartlett,  8  Cranch,  434,  428,  Fed.  Cas.  No.  17,775;  Corning  v. 

3  L.  ed.  614;  Borer  v.  Chapman,  119  Dreyfus.  20  Fed.  428;  Hale  v.  Bugg, 

U.  S.  600,  30  L.  ed.  532;   7  Sup.  Ct.  82  Fed.  37. 

Rep.  342.  iTBrown   v.   Clarke,   4  How.   4,   11 

9  Freeman  v  Howe,  24  How.  456,  16  L.  ed.  850;  Adler  v.  Roth,  5  Fed.  898; 

L.  ed.  749;  Kippendorf  v.  Hyde,  110  Langdon  v.  Brumbv.  7  Ala.  58;  Metz- 

U.  S.  280,  28  L.  ed.   145,  4  Sup.  Ct.  ner  v.  Craham,  57"Mo.  410;  Schaller 

Rep.  27;  Coveli  v.  Hevman,  111  U.  S.  v.  Wickershani,  7  Coldw.  381,  Jame.s 

185,  28  L.  ed.  390,  4  Sup.  Ct.  Rep.  355.  v.    Kennedv,    10    Hei.sk.    611:    Long- 

loCovell  V.  Hey  man.  Ill  U.  S.  182,  street  v.  Hill,  11  Heisk.  59:  Fountain 

28  L.   ed.   390,  4  Sup   Ct.   Rep.   355;  v.  624  Pieces  of  Timber,  140  Fed.  381. 

Adler  v.  Roth,  5  Fed.  898.  In  personal  actions  the  time  of  serv- 

ii.\dler  V.   Roth,  5   Fed.   898.  ice    of    process    determines    priority. 

i2Put  in  Bay  Co.  v.  Rvan,  181  U.  See  §  16.[a] 

141 


§  17   [c] 


FEDERAL    JURISDICTION    IN    GENERAL. 


[Code  Fed. 


and  marshal  failed  in  that  on  their  first  levy,  the  one  who  first  makes  a 
proper  levy  and  takes  possession  thereafter,  has  the  priority. is  A  marshal 
may  levy  upon  a  vessel  to  enforce  a  maritime  lien  so  long  as  the  custody 
of  no  other  court  has  actually  attached,  even  though  a  State  court  has 
appointed  a  receiver  who  has  not  yet  given  bond  or  assumed  possession. 1 9 

[c]  When  exclusive  jurisdiction  attaches  on  proceedings  quasi  in  rem. 
There  are  two  classes  of  cases  to  which  the  rule  that  accords  exclusive 
jurisdiction  over  property  to  the  court  which  makes  the  first  actual  seiz- 
ure does  not  fully  apply.  In  the  first  property  is  deemed  to  be  placed  in 
gremio  legis  and  beyond  the  reach  of  other  courts,  by  certain  facts,  in 
the  absence  of  either  actual  or  constructive  possession.  Thus  upon  the 
filing  of  a  voluntary  petition  in  insolvency  or  bankruptcyi  or  for  the  dis- 
solution of  a  corporation, 2  it  would  seem  proper  to  hold  that  the  property 
involved,  which  is  not  then  in  the  actual  custody  of  some  other  court, 3 
jjasses  eo  instanti,  under  the  exclusive  control  or  dominion  of  the  court 
having  jurisdiction  of  such  proceedings. ■*  The  probate  court  acquires  a 
similar  custody  upon  the  death  of  a  decedent; 5  and  the  same  rule  should 
apply  in  any  other  case  where  the  filing  of  a  bill  or  petition  might  fairly 
be  construed  as  a  surrender  of  property  into  the  custody  of  the  law.  The 
second  class  of  cases  to  which  the  rule  does  not  fully  applys  are  cases  in 
which  the  filing  of  a  bill  or  petition  contemplates  the  ultimate  assertion  of 
dominion  over  a  subject  matter  although  it  does  not  of  itself  draw  the 
property  immediately  into  the  custody  of  the  law.  In  a  recent  decision 
dealing  with  cases  of  this  type  it  was  said  that  the  principle  which  gives 
a  court  with  possession  of  the  res,  exclusive  jurisdiction,  "often  applies" 
in  cases  where  no  actual  seizure  or  possession  has  occurred  but  the  suit 
is  brought  "to  enforce  liens  against  specific  property,  to  marshal  assets, 
administer  trusts  or  liquidate  insolvent  estates,  and  in  suits  of  a  similar 
nature  where  in  the  progress  of  the  litigation  the  court  may  be  com- 
pelled to  assume  the  possession  and  control  of  the  property  to  be  affected."6i^ 
In  that  case  the  filing  of  a  suit  for  foreclosure,  by  a  trustee  praying  a 
receiver,  was  deemed  to  vest  an  exclusive  jurisdiction  in  the  Federal  court 
in  advance  of  service  of  process,  so  as  to  disable  a  State  court  from  enter- 
taining a  subsequent  suit,  in  which  process  was  served  first,  to  enjoin  the 


isAdler  v.  Roth,  5  Fed.  895. 

isMoran  v.  Sturges,  154  U.  S.  256, 
38  L.  ed.  981,  14  Sup.  Ct.  Rep.  1027. 

iln  re  Vogel,  7  Blatchf.  19.  Fed. 
Cas.  No.  16.982.     See  infra,  note  [d]. 

2 See  Gaylord  v.  Ft.  Wayne,  etc.  R. 
R.  6  Biss.  286,  Fed.  Oas.  No.  5,284; 
Foster  v.  Bank  of  Abingdon,  68  Fed. 
726. 

3Rio  Grande  R.  R.  v.  Gomila,  132 
U.  S.  481,  33  L.  ed.  400,  10  Sup.  Ct. 
Rep.  155;  Peck  v.  -Jenness,  7  How. 
612,  12  L.  ed.  841;  Mollison  v.  Eaton, 
16  Minn.  4.30,  10  Am.  Rep.  152: 
Parks  V.  AVilcox,  6  Colo.  490. 


4 See  opinion,  Brewer,  J.,  dissent- 
ing, Moran  v.  Sturges,  154  U.  S. 
256,  38  L.  ed.  980,  14  Sup.  Ct.  Rep. 
1029. 

5See  infra,  note.le] 

6 See  however,  Knott  v.  Evening 
P.  Co.  124  Fed.  355,  356,  holding  it 
should  to  apply  to  such  cases,  re- 
versed, Louisville  T.  Co.  v.  Knott, 
130  Fed.  820,  65  C.  C.  A.  158. 

6'aFarmers  L.  &  T.  Co.  v.  Lake  St. 
E.  R.  R.  177  U.  S.  62,  44  L.  ed.  671, 
20  Sup.  Ct.  Rep.  566.  See  also.  Lou- 
isville T.  Co.  V.  Knott,  130  Fed.  820, 
C)o  C.  C.  A.  158. 


142 


Procedure]    COXCURREXT    AXD    COXFLICTIXG    JURISDICTIOX.      §   17    [c] 

trustee  from  maintaining  such  suit.  Doubtless  it  is  a  salutary  rule  to 
declare  that  the  filing  of  a  suit  quasi  in  rem  contemplating  an  assumption 
of  actual  dominion  over  a  subject  matter,  should  prevent  other  courts  from 
subsequently  attempting  to  enjoin  such  proceedings,'?  or  from  litigating 
matters  concerning  the  enforcement  of  that  particular  right  in  rem.  But 
it  should  not  disable  other  courts  from  entertaining  subsequent  suits  to 
foreclose  other  liens  or  enforce  other  rights  in  rem,  and  as  between  two 
such  proceedings  it  does  not  seem  safe  to  say  that  the  second  court  is 
disabled  from  appointing  a  receiver  because  the  first  might  some  time  do 
so.  Either  court  should  be  at  liberty  to  appoint  a  receiver,  conceding  to 
the  first  the  prior  right, s  if  the  particular  facts  so  require;  and  the  con- 
trol and  disposition  of  the  subject  matter  should  ultimately  go  to  the  re- 
ceivership tribunal.  A  suit  to  foreclose  a  mechanics  lien  and  a  suit  to 
foreclose  a  mortgage  may  proceed  against  the  same  property  in  different 
courts  at  the  same  time.  9  Indeed  it  was  held  that  diff"erent  bondholders, 
or  bondholders  and  the  trustee,  may  sue  for  relief  under  the  same  mort- 
gage in  different  courts. lo  The  mere  bringing  of  a  foreclosiu-e  suit  should 
not  be  deemed  to  initiate  an  exclusive  jurisdiction,  where  no  actual  pos- 
session of  the  property  is  sought  by  receivership  or  levy.n  But  the  filing 
of  a  bill  praying  a  receiver  is  a  sufficient  assumption  of  dominion  over  the 
property  to  withdraw  it  from  reach  of  a  subsequent  levy  or  garnishment 
in  another  court,  at  least  until  it  has  been  acted  upon. 12  Where  a  re- 
ceiver is  prayed  in  both  covu"ts,  it  would  seem  a  proper  rule  that  the 
second  court  should  stay  its  hand  until  the  application  in  the  first  case 
is  disposed  of,  and  the  appointment  of  a  receiver  by  the  first  should  ex- 
clude similar  action  by  the  second. is  But  if  a  receivership  or  possession 
is  sought  only  in  the  second  suit  and  the  first  does  not  seek  to  take  the 
property  into  custody  it  would  seem  that  the  second  might  acquire  an 
exclusive  possession  of  the  property  through  a  receiver  or  sequestration.  1* 
In  any  case  where  property  has  actually  been  taken  into  custody  prior  to 

7See  also   Phelps   v.   !Mutual,    etc.  Fed.    Cas.    No.    14,401;     Gaylord    v. 

Assn.  112  Fed.  453,  50  C.  C.  A.  339.  Railway,  6  Biss.  286,  Fed.  Cas.  No. 

&See   Owens    v.    Ohio    C.   R.   R.    20  5,284;  Oohen  v.  Solomon,  66  Fed.  411. 

Fed.    10;    Central    T.    Co.    v.    South,  i2Riesner   v.    Gulf,    etc.    R.    R.   89 

etc.  R.  R.  57  Fed.  3;  Sharon  v.  Terry,  Tex.  660,  59  Am.  St.  Rep.  88,  36  S. 

36  Fed.  337,  13  Sawy.  387,  1  L.R.A.  W.  55,  33  L.R.A.  173;  Perego  v.  Bone- 

572.  steel,  5  Biss.  69,  Fed.  Cas.  No.  10,976. 

sNational  F.  &  P.  Works  v.  Oconto,  is  Adams   v.   JVlercantile  T.   Co.   66 

etc.   Co.    113    Fed.   793,  51    C.   C.   A.  Fed.  617,  15  C.  C.  A.  1 ;  Annleton  W. 

465.  W.  Co.  V.  Central  T.  Co.  93  Fed.  286, 

lOBrooks    V.   Vermont,   etc.   R.   R.  35  C.  C.  A.  302;  McKechney  v.  Weir, 

14  Blatchf.  463,  Fed.  Cas.  No.  1,964;  118  Fed.  805,  55  C.  C.  A.  417;  Mc- 
Berkman  v.  Hudson,  etc  R.  R.  35  Dowell  v.  McCormick,  121  Fed.  61. 
Fed.  3.  57  C.  C.  A.  401. 

iiCompton  V.  Jesup,   68  Fed.  283,  i^Knott  v.   Evening   Post   Co.   124 

15  C.  C.  A.  397:  National  F.  Wks.  Fed.  342;  East.  etc.  R.  R.  v.  Atlanta, 
V.  Oconto,  etc.  Co.  113  Fed.  798,  51  etc.  R.  R.  49  Fed.  608,  15  L.R.A.  109; 
C.  C.  A.  465;  National  F.  Wks.  v.  Pitt  v.  Rogers,  104  Fed.  387,  43  C. 
Oconto,  etc.  Co.  105  Wis.  48,  81  N.  C.  A.  600:  Oliver  v.  Parlin,  etc.  Co. 
W.    125.     Contra,   see   Union   T.   Co.  105   Fed.  272,  45  C.  C.  A.  200. 

V.  Bockford.  etc.   R.  R.  6  Biss.   197, 

143 


§   17   [d]  FEDERAL    JURISDICTION    IN    GENERAL.  [Code  Fed. 

the  liling  of  a  second  suit  quasi  in  rem,  there  is  no  reason  why  that  shouhi 
not  be  paramount  and  exclusive  so  long  as  it  continues.  Thus  where  in  the 
first  suit  an  order  to  seize  and  sell  on  foreclosure  has  issued,  this  creates 
an  exclusive  dominion  in  the  foreclosing  court;  15  so  also  does  a  takin^i 
of  possession  by  the  sheriff. is 

[d]     Bankruptcy  and  insolvency  causes. 

The  exclusive  nature  and  extent  of  the  Federal  bankruptcy  jurisdiction, 
and  the  effect  of  bankruptcy  proceedings  upon  cases  pending  in  State 
courts,  are  elsewhere  considered.!  The  effect  of  a  voluntary  petition  in 
bankruptcy  or  insolvency  is  to  place  the  property  in  the  custody  of  the 
court,  disabling  other  courts  from  maintaining  replevin  therefor,  or  set- 
ting aside  a  homestead. 2  Although  if  the  propertj^  was  in  the  State 
court's  possession  previous  to  the  bankruptcy  that  possession  is  not  dis- 
turbed except  as  provided  by  the  bankrupt  law. 3  The  Federal  courts 
are  without  jurisdiction  of  State  insolvency  or  assignment  proceedings. 4 
They  may  not  disturb  a  State  court's  custody  of  insolvency  assets 5  or  seizi- 
such  property  under  their  own  writs.6  But  they  may  entertain  suit  to 
establish  a  claim  where  citizenship  is  diverse; 7  or  a  foreclosure  suit,  al- 
though the  mortgagor  has  made  a  State  statutory  assignment;  8  or  a  suit 
to  declare  a  mortgage  invalid. 9  It  seems  that  they  may  entertain  suits 
to  inqiiire  into  the  validity  of  the  assignment  itself. 10  In  short,  where  a 
controversy  is  within  the  Federal  judicial  power  as  defined  by  the  Con- 
stitution and  Congress,  the  Federal  courts  may  take  cognizance  of  it  not- 
withstanding State  insolvency  proceedings,  so  long  as  their  action  does 
not  interfere  with  or  embarrass  the  administration  of  the  estate  in  the 
State  tribunal.  The  case  is  analogous  to  that  of  State  probate  proceed- 
ings.! 1     The  State  court  should  respect  a  lien  or  priority  based  upon  pro- 

isHolland   T.  Co.  v.  International,  Fed.  519;  Chapman  v.  Brewer,  114  U. 

etc.  Co.  85  Fed.  865,  29  C.  C.  A.  460;  S.  173,  29  L.  ed.  88,  5  Sup.  Ct.  Rop. 

Fox  V.  Hempfield  R.  R.  2  Abb.  U.  S.  806. 

141,  Fed.  Cas.  No.  5,011;   Central  N.         *  Adams  v.   Preston,   22  How.   473, 

Bank  v.  Hazard,  49  Fed.  295.  296.  10  L.  ed.  273. 

i6Tefft  V.   Sternberg,  40  Fed.  3,  5        sThe  J.  G.  Chapman,  02  Frtl.  940. 
L.R.A.   223.  fiGeilinger   v.   Philippi,    133   U.    S. 

iSee  ante,  §  15,  note.Cn  257,  33  L.  ed.  617,  10  Sup.   Ct.  Rep. 

2ln   re    Cobb,   96    Fed.    823;    In   re  269;   Tua  v.  Carrieri,   117   U.  S.  201. 

Miller,  6  Biss.  34.  Fed.  Cas.  No.  9,551 ;  29  L.  ed.  855,  0  Sup.  Ct.   Rep.   oO.t  : 

In  re  Litchfield.  13   Fed.   866;   In  re  Milliken  v.  Barrow,  55  Fed.  1-IS. 
Askew,  3  N.  B.  R.  575,  Fed.  Cas.  No.        TGreen  v.  Creighton,  23   How.   lO'i. 

585;    Chapman  v.  Brewer,   114  U.  S.  16  L.   ed.   419;    Shelbv  v.   Bacon,    10 

173,  29  L.  ed.  88,  5,  Sup.  Ct.  Rep.  806;  How.  56.  13  L.  ed.  326. 
In  re  Vogel,  7  Blatchf.  19,  Fed.  Cas.        sEdwards  v.   Hill,   59   Fed.  721.   S 

No.  16,982.    But  see  Moran  v.  Sturges,  C.  C.  A.  233. 

154  U.  S.  252,  38  L.  ed.  981,  14  Sup.        stRumsev    v.    Town.    20    Fe  I.    503. 

Ct.   Rep.   1019.  Smith,  etc.  Co.  v.  McGro-.irity.  130  V 

sConner  v.  Long.  104  U.  S.  234,  26  S.  240,  34  L.  ed.  348,  10  Sup.' Ct.  Rep. 

L.  ed.  726;  Johnson  v.  Bishop,  Woolw.  1018. 

327,  Fed.  Cas.  No.  7,373;  Townsend  v.         lORejall  v.  Greenwood,  60  Fed.  786: 

Leonard,  3  Dill.  371,  Fed.  Cas.  No.  14,-  Swofford  Bros.  v.  Mills,  86  Fed.  559. 
117;   Southern  L.  Co.  v.  Benbow,  96        "See  infra,  note.le] 

144 


Procedure]    CONCURRENT   AND    CONFLICTING    JURISDICTION.        §   17    [e] 

ceedings  in  the  Federal  court  prior  to  the  insolvency. 12  An  assignment 
for  the  benefit  of  creditors  does  not,  in  general,  put  the  property  in  cus- 
todia  legis.13  A  creditor  not  party  to  a  proceeding  thereunder  in  the  State 
court  may  maintain  a  bill  in  the  Federal  court  upon  failure  of  the  assig-nee 
to  act,  to  set  aside  a  deed  of  the  debtor  which  withdrew  most  of  the 
assets  from  the  assignment.  1*  The  extent  to  which  proceedings  in  State 
courts  are  permissible,  pending  bankruptcy  administration  in  the  Federal 
court,   is   governed   by    statute   and   considered   elsewhere.is 

[e]     Probate  proceedings. 

The  Federal  courts  have  no  probate  jurisdiction,  yet  they  may  take 
cognizance  of  a  suit  that  arises  in  the  course  of  probate,  where  between 
citizens  of  different  States  ;i  so  long  as  their  action  does  not  interfere  with 
the  possession  of  the  State  tribunal.  They  may  render  judgment  against 
;in  estate  on  a  claim  although  it  may  be  collected  only  through  the  pro- 
')ate  court; 2  taking  its  place  with  other  debts  against  the  estate.3  Ex- 
ecutors may  sue  in  the  Federal  court  to  enforce  rights  or  claims  of  the 
estate.*  Federal  courts  may  entertain  a  foreclosure  suit  against  a  trustee 
of  property  in  the  custody  of  a  probate  court. 5  It  is  held  that  they  may 
determine  the  status  of  aliens  as  heirs  and  their  right  to  share  in  an  es- 
tate; 6  and  entertain  a  suit  for  partition  and  assignment  of  a  widow's  dow- 
er;'^ or  suit  for  specific  performances  They  may  require  an  executor  to 
account; 9  or  entertain  a  suit  by  a  legatee  to  establish  his  claim;  10  or  set 
aside  a  receipt  therefor,  fraudulently  obtained. n  But  they  cannot  en- 
tertain a  proceeding  to  establish  a  will  for  probate;  12  or  to  construe  it;i3 

i2Claflin  v.   Lisso.   IG   Fed.   897,    t  Terrv  v.   Bank,  20  Fed.  775;   Kitte- 

Woods,  252.  redge  v.  Race,  92  U.  S.  121,  23  L.  ed. 

isBoltz    V.    Eagon,    ;^4    Fed.    -I'm;  490;Wickham   v.   Hull.   60   Fed.   330; 

Lehman  v.  Rosengarten.  23  Fed.  012;  Briggs  v.  Stroud,  58  Fed.  720;   In  re 

Tne  James  Pvoy.  59   Fed.  785:    Roth-  Foley,  80  Fed.  951;    Brown  v.   Ellis, 

child    V.    H-asBrouck,    65    Fed.    287;  86  Fed.  358. 

Powers  V.  Blue  Grass  B.  &  L.  Assn.  ^Griswold   v.    Central   V.    R.   R.   9 

86   Fed.   709;   Hamilton,   etc.    Co.   v.  Fed.  799,  20  Blatchf.  212. 

Mercer,  84  Iowa,  539,  35  Am.  St.  Rep.  sErwin  v.  Lowry,  7  How.  181,   12 

332,  51  N.  W.  416.  L.  ed.  665;  Black  v.  Scott,  9  Fed.  191 ; 

nGould  V.  Mullanphv,  etc.  Co.  32  German  Sav.  Soc.  v.  Cannon,  65  Fed. 

Fed.  181.                           ^  543. 

isSee  post,  §  20.  sO'Callaghan  v.0'Brien,116  Fed.934. 

iSee  ante,  §  2,  noLcr^v]  THolton  v.   Guinn.  76  Fed.  96. 

2Williams  v.  Beneclicr..  S  How.  112,  sDavis  v.  Davis,  89  Fed.  537. 

12  L.  ed.   1007:   Peale  v.  Phipps,   14  oPulliam   v.   Pulliam,   10   Fed.   30; 

How.  375,  14  L.  ed.  4tV2;    Kendall  v.  Van  Bokkelen  v.  Cook,  5  SawA'.  589, 

Croighton,    23    How.    90.    16    L.    ed.  Fed.  Oas.  No.  16.831. 

419;    Conlev    v.    Lavender.    21    Wall.  lOBrendel  v.  Charcli,  82  Fed.  263; 

283,  284,  22  L.  ed.   536;    Bedford  Q.  Martin  v.  Fort,  83  Fed.  22,  27  C.  C. 

Co.   v.   Thomlinson,   95    Fed.   210.    36  A.  428. 

C.  C.  A.  272;  Continental  X.  Bank  v.  uPayne  v.  Hook,  7  Wall.   425.   19 

Heilman,    81    Fed.    43:    Security    T.  L.  ed.  260;  Cowen  v.  Adams,  78  Fed. 

Co.  V.  Dent,  104  Fed.  380.  43  C.  C.  A.  543,  24  C.  C.  A.  108. 

594.  i2ln  re  Cilley,  58  Fed.  990. 

sByers  v.  McAuley,  149  U.  S.  620,  isSecurity  Co.  v.   Pratt,  05  Conn. 

37  L.  ed.  867,  13  Slip.  Ct.  Rep.  906;  177,  32  Atl.  398. 
Fed.  Proc— 10.                               145 


§   17    [f] 


FEDERAL    JURISDICTION    IN     GENERAL. 


[Code  Fed. 


or  to  oust  an  administrator;!*  or  to  enjoin  a  sale  by  a  probate  court; is 
And  they  can  take  cognizance  of  a  suit  to  set  aside  a  will  only  when  it 
takes  the  form  of  a  suit  or  controversy.! 6  They  cannot  entertain  a  suit 
to  enforce  an  agreement  of  the  testator  to  give  his  estate  to  complainant, 
since  they  cannot  grant  relief  without  taking  the  estate  from  tlie  probate 
court;  17  nor  a  suit  for  recovery  of  property  which  the  administrator  is 
directed  to  turn  over  to  some  one  else.is  Nor  have  they  power  to  appoint 
a  receiver  for  the  assets  of  an  estate  in  course  of  probate  on  the  ground 
of  fraud  and  waste.!  9  Where  property  was  conveyed  by  decedent  in  his 
lifetime  and  hence  never  was  in  possession  of  the  probate  court,  a  creditor's 
bill  is  maintainable  in  the  Federal  court  to  set  aside  such  conveyance  for 
fraud. 2  0  Where  probate  administration  is  complete  and  the  assets  have 
been  distributed  a  Federal  court  may  entertain  suit  in  equity  to  subject 
such  property  to  a  debt  of  decedent.!  And  where  a  probate  court's  sale 
or  decree  in  partition  is  attacked  in  a  subsequent  suit  for  fraud,  or  want 
of  jurisdiction,  there  can  be  no  reason  for  denying  the  Fedei-al  court's 
jurisiliction  to  examine  into  such  question  so  far  as  afl'ecting  the  rights  of 
parties  before  it. 2  Where  property  of  a  debtor  has  been  taken  into  cus- 
tody by  a  Federal  court,  the  debtor's  death  and  probate  proceedings  in  the 
State  court,  do  not  oust  that  possession.  3 

[f]     Property  taken  on  attachment  or  execution. 

Property  taken  and  held  under  mesne  or  final  process  is  in  custodia 
legis  and  no  other  court  may  take  it  into  custody;  6  nor  is  replevin 
to   recover   the   same    maintainable    in   another   court.'?     The    first    court's 


!4Lant  V.  Manley,  75  Fed.  634,  21 
C.  C.  A.  457 ;  Haines  v.  Carpenter, 
1  Woods,  270,  Fed.  Cas.  No.  5.905. 

!5Evans  v.  Gorman,   115  Fed.  399. 

16 See  ante.  §   2.[w] 

imall  V.  Bridgeport  T.  Co.  123 
Fed.  739. 

isMcPherson  v.  Mississippi  V.  T. 
Co.  122  Fed.  367,  58  C.  C.  A.  455. 

19 Johnson  v.  Ford,  109  Fed.  501. 
But  see  Ball  v.  Thompkins,  41  Fed. 
486. 

2  0Hale  V.  Tyler,  115  Fed.  833. 

iChewett  v.  Moran,  17  Fed.  820; 
Hale  V.  Coffin,  114  Fed.  567. 

2 Johnson  V.  Waters,  111  U.  S.  667, 
28  L.  ed.  547,  4  Sup.  Ct.  Rep.  619; 
Arrowsmith  v.  Gleason,  129  U.  S.  99, 
32  L.  ed.  634,  9  Sup.  Ct.  Rep.  241; 
Robinson  v.  Fair,  128  U.  S.  86,  87.  32 
L.  ed.  415.  9  Sup.  Ct.  Rep.  35. 

3Rio  Grande  R.  R.  v.  Gormila,  132 
U.  S.  481,  33  L.  ed.  400,  10  Sup.  Ct. 
Rep.  155. 

BTavlor  V.  Carrji,  20  How.  583,  15 
L.  ed."l028;  Moore  v.  Withenburg,  13 
La.  Ann.  23;    Townsend  v.  Leonard, 


3  Dill.  371.  Fed.  Cas.  No.  14,117; 
Clarke  v.  Shaw,  28  Fed.  356:  South- 
ern, etc.  Bank  v.  Folsom,  75  Fed.  932, 
21  C.  C.  A.  568:  Namiiberg  v.  Hvatt, 
24  Fed.  900;  Lewis  v.  Dilhud.  76  Fed. 
690,  22  C.  C.  A.  488;  Fox  v.  Hemphekl. 
etc.  R.  R.  2  Abb.  (U.  S.)  155,  Fed. 
Cas.  No.  5,011;  Milliken  v.  Barrow. 
55  Fed.  149,  19  L.R.A.  403. 

■i  Freeman  v.  Howe,  24  How.  450,  16 
L.  od.  749;  Covell  v.  Heyman,  111  U. 
S.  176,  28  L.  ed.  390,  4  Sup.  Ct.  Rep. 
355;  Porter  v.  Davidson.  62  Fed.  627: 
Patterson  v.  Mater,  26  Fed.  31;  Mel- 
vin  V.  Robinson,  31  Fed.  6.35:  Pickett 
v.  Filer,  etc.  Co.  40  Fed.  313:  Krip- 
pendorf  v.  Hyde.  110  U.  S.  280.  28  L. 
ed.  145,  4  Sup.  Ct.  Rep.  27;  Hale  v. 
Bugg,  82  Fed.  37:  Munson  v.  Har- 
roon,  34  111.  424.  85  Am.  Dec.  317; 
Senior  v.  Pierce,  31  Fed.  627;  Fensier 
v.  Lammon,  6  Nev.  ^13.  St.  Paul,  etc. 
Ry.  V.  Drake,  72  Fed.  949.  19  C.  C.  A. 
252;  Summers  v.  White,  71  Fed.  109. 
17  C.  C.  A.  631.  But  replevin  in  the 
same  court  has  been  held  maintain- 
able.    Maddux  v.  Usher,  2  Hask.  267, 


146 


Procedure]   CONCURRENT  AND  CONFLICTING  JURISDICTION.        §   17    [fij 

possession  must  be  permitted  to  continue  until  the  purpose  of  tlie  seizure 
is  accomplished.  8  However,  the  process  of  other  courts  may  be  served 
upon  the  sheriff  or  marshal  in  possession  by  way  of  garnishment  of  the 
surplus,  and  the  court  which  has  possession  may  determine  priorities  and 
allow  other  claims  against  the  surplus. »  If  the  taking  is  alleged  to  be 
wrongful  because  another  claims  the  property  as  his,  he  may  make  an 
ancillary  application  to  the  court  under  whose  process  the  seizure  was 
made  10  or  may  maintain  trespass,  trover  or  conversion  for  damages,  or 
an  action  on  the  bond  of  the  seizing  officer  in  any  competent  court,  since 
that  action  would  not  interfere  with  the  possession  of  the  property  or 
provoke  a  conflict. n  But  he  may  not  apply  to  another  court  to  enjoin 
the  execution  sale.i2  if  it  transpire  that  the  marshal's  levy  was  invalid 
the  Federal  court  may,  on  application  by  the  person  making  ineffectual 
levy  from  the  State  court,  charge  the  marshal  as  garnishee; is  or  order 
the  proceeds  to  be  paid  over  to  an  execution  creditor  in  another  court,  i* 
Other  courts  cannot  summon  the  marshal  to  appear  before  them  as  gar- 
nishee,! 5  nor  arrest  and  imprison  him  for  acts  done  under  Federal 
process.  16  The  levy  of  execution  or  attachment  upon  realty  does  not, 
under  the  law  of  most  States,  bring  the  property  into  the  actual  or 
constructive  possession  of  the  court,  but  merely  establishes  a  lien  against 
it,  and  another  court  may  thereafter  appoint   a  receiver.i'? 

[ff]     Validity  of  execution  sale. 

Where  the   liens  of  two  judgments  are  co-ordinate,  the  court   first   ac- 
quiring possession  by   seizure  imder   execution   may   confer   a  good   title i 

Fed.  Cas.  No.  8,936.     See  State  au-  568;  Central  N.  Bank  v.  Stevens,  160 

thorities  contra  in  25  Am.   St.  Rep.  U.  S.  461,  42  L.  ed.  817,  18  Sup.  Ct. 

259  note.  Rep.  413. 

sRio  Grande  R.  R.  v.  Gomila,  132  U.  isGumbel  v.  Pitkin.  124  U.  S.  132, 

S.  481.  33  L.  ed.  400.  10  Sup.  Ct.  Rep.  31  L.  ed.  374.  8  Sup.  Ct.  Rep.  379. 

155.  i4The  Daniel  Kaine,  35   Fed.   788, 

sGumbel  v.  Pitkin,  124  U.  S.  150,  789. 

31  L.  ed.  374,  8  Sup.  Ct.  Rep.  379;  isGumbel  v.  Pitkin.  124  U.  S.  150, 
Bates  V.  Days,  17  Fed.  167,  5  Mc-  31  L.  eu.  374,  8  Sup.  Ct.  Rep.  389. 
Crarj',  342;  Bayard  v.  Bavard,  Fed.  leBeckett  v.  Sheriff,  21  Fed.  32. 
Cas.  No.  1,129;  Claflin  v.  Beaver,  See  Smith  v.  Bauer,  9  Colo.  381,  12 
35  Fed.  261;  Lackett  v.  Rumbaugh,  Pac.  398,  where  Federal  court  con- 
45  Fed.  39;  Brooks  v.  Frv,  45  Fed.  sonted  to  process  against  marshal. 
778:  The  Daniel  Kaine,  35  Fed.  788.  inViswall  v.  Sampson,  14  How.  52, 

loSee  ante.  §   3.  note.C   ]  14  L.  ed.  322;   Georgia  v.  Jesup,  106 

iiBusk  v.  Colbath  3  Wall.  334,  18  U.  S.  458,  464.  27  L.  ed.  216,  1   Sup. 

L.  ed.  257:   Lamnion  v.   Feusier.   Ill  Ct.  Rep.  363;  In  re  Hall,  73  Fed.  527; 

U.  S.  17.  28  L.  ed.  337,  4  Sup.  Ct.  Rep.  Tngraham   v.    National    Salt    Co.    139 

286;  Dennv  v.  Bennett.  128  U.  S.  500,  Fed.  684.    See  Gates  v.  Bucki,  53  Fed. 

32  L.  ed.  495,  9  Sup.  Ct.  Rep.  135;  961,  4  C.  C.  A.  116,  where  there  was 
Covell  v.  heyman.  111  U.  S.  176,  28  a  i-eceiver  in  the  State  court  as  well 
L.  ed.  .390,  4  Sup.  Ct.  Rep.  355;  Evans  as  an  attachment.  Contra  see  Sonth- 
V.  Pack,  2  Flip.  268,  Fed.  Cas.  No.  ern  B.  &  T.  Co.  v.  Folsom.  75  Fed. 
4,500.  931.  21   C.  C.  A.  568. 

i2American  Assn.  v.  Hurst,  59  Fed.        iPulliam  v.  Osborne.  17   How.  475, 
1,  7  C.  C.  A.  598;  Southern,  etc.  Co.    15  L.  ed.  154. 
V.  Folsom,  75  Fed.  931,  21  C.  C.  A. 

147 


;i  IT  u 


l''i!,DEKAL   JURISDICTION    IN    (iKNliUAL. 


[Code  Fed. 


even  against  a  creditor  recovering  a  judgment  establishing  a  mechanic's 
lien  against  the  property.  2  But  a  State  court  cannot  acquire  such  a 
dominion  over  a  vessel  by  seizure  as  to  be  able  to  sell  the  same  on  execu- 
tion, free  of  prior  maritime  liens,  and  as  it  is  without  jurisdiction  to 
adjudicate  such  liens,  the  practical  consequence  is  that  the  title  of  its 
purchaser  is  subject  to  the  assertion  of  maritime  liens  in  the  admiralty 
court. 3  Sale  under  process  of  a  court  which  has  not  acquired  possession 
of  the  property  is  ineffective  against  a  purchaser  in  the  court  which  has 
acquired  legal  custody.*  Sale  under  execution  without  consent  of  the 
court  whoso  receiver  is  in  possession  is  void.  5 

[g]     Receivers. 

Property  in  possession  of  a  receiver  is  in  the  custody  of  the  law  and 
of  the  court  appointing  him7  and  may  not  be  interfered  with  by  any  other 
court. 8  The  Federal  court  has  no  power  to  order  its  receiver  to  take  prop- 
erty from  the  lawfvil  custody  of  a  State  court  receiver,9  nor  may  a  State 
court  deprive  a  Federal  received  of  possession.  10  The  fact  that  a  State 
coiu't  dissolves  a  corporation  whose  assets  are  being  administered  by  a 
Federal  court  through  its  receiver,  cannot  oust  the  Federal  court's  prior 
possession  or  impair  its  right  to  carry  its  own  decrees  into  execution.i' 
Execution  sale  by  another  court,  of  property  in  a  receiver's  hands  is 
void. 12  No  other  court  has  power  to  levy  attachment  or  distress  warrant 
on  such  property,!  3  or  enjoin  the  proceedings  in  which  the  receiver  was 
appointed. K     It   may  not  be   sold  for  taxes,i5   nor  on  foreclosure  in  an- 


2Heidritter    v.   Elizabeth,    etc.    Co.  sWatson   v.    Jones.    13   Wall.    718, 

112  U.  S.  305,  28  L.  ed.   729,  5  Sup.  719,   20  L.  ed.  666;    Shields   v.   Cole- 

Ct.  Rep.  136.  man,  1.57  U.  S.  169,  39  L.  ed.  660,  15 

^McAllister  v.  The  Sam  Kirkman,  1  Sup.  Ct.  Rep.  570;  Missouri  P.  Rv.  v. 

Bond,  384,  Fed.  Cas.  No.  8.658;   The  Fitzgerald.   160  U.  S.  .^79.  40  L*  (-■?. 

Elexena,    53     Fed.     361;     Moran    v.  536,   16   Sup.   Ct.   Rep.   389;   Judd  v. 

Sturges,  154  U.  S.  256,  38  L.  ed.  981,  Bankers,   etc.    Co.    31    Fed.    182;    24 

14  Sup.  Ct.  Rep.   1019.  Blatchf.  420;   In  re  Clark.  4  Ben.  88, 
*Taylor  v.   Carryl,  20   How.   596,  Fed.  Cas.  No.  2,798.    An  allegation  of 

15  L.  ed.  1032;  Heidritter  v.  Eliza-  fraud  can  make  no  difference.  Attle- 
beth,  etc.  Co.  112  U.  S.  304,  28  L.  ed.  borough,  etc.  Bank  v.  N.  W.  Mfg.  Co. 
733.  5  Sup.  Ct.  Rep.  139.  28  Fed.   114. 

5Wiswall  V.  Sampson,  14  How.  52,  lOCalhoun    v.    Lanaux,    127    U.    S. 

67,  14  L.  ed.  322;  Dugger  v.  Collins,  640,  32   L.  ed.  297,  8  Sup.  Ot.  Rep. 

69  Ala.  330.  1345. 

■jPeale  v.  Phipps,   14  How.  374,  14  uLeadville  Coal  Co.  v.   McCreery, 

L.  ed.  459;    Wiswall  v.  Sampson,   14  141  U.  S.  476,  35  L.  ed.  824,  12  Sup. 

How.  65,  14  L.  ed.  322;  Baggs  v.  Mar-  Ct.  Rep.  28. 

tin,  179,  Tj.  S.  209,  45  L.  ed.  156,  21  isWiswall    v.    Sampson,    14    How. 

Sup.  Ct.  Rep.  109.  67,  68,  14  L.  ed.  322. 

8 Young  v.  Montgomerv,  etc.  R.  R.  isPeople's  Bank  v.  Calhoun.  102  U. 

2  Woods,  606,  Fed.   Ca.s."  No.   18,166;  S.   256,  26  L.  ed.   101;   Malcomson  v. 

Blake  v.  Alabama,  etc.  R.  R.  6.  Nat.  Wappoo  Mills,  85  Fed.  910;  Memphis 

Bank  Reg.  .3-32,  3  Fed.  Cas.  587:  Sav.  Bank  v.  Houchens,  115  Fed.  96, 
Bruce  v.  Manchester,  etc.  R.  R.  19 
Fed.  345;  Adams  v.  Mercantile  Trust 
C-o.  66  Fed.  621.  15  C.  C.  A.  1 ;  Blake 
v.  Alabama,  etc.  R.  R.  3  Fed.  Cas.  No. 
587. 


148 


52   C.   C.  A.   176. 

locates  v.  Bucki,  53  Fed.  961,  4 
C.  C.  A.  116. 

15  In  re  Tyler,  149  U.  S.  181,  37  L. 
ed.  695,  13  Sup.  Ct.  Rep.  789;  Ex  pxiia 


Procedure]    CONCURRENT   AND   CONFLICTING    JURISDICTION.        §   17    [h] 

other  court.16  But  another  court  may  adjudicate  claims  against  prop- 
erty in  a  receiver's  hands,  so  long  as  it  does  not  attempt  to  interfere  with 
the  possession;  17  so  also,  it  may  settle  accounts.is  Interference  with  the 
possession  of  a  receiver  is  punishable  as  contempt,i9  and  the  general  rule 
is  that  permission  of  the  appointing  court  is  a  necessary  condition  preced- 
ent to  suit  against  a  receiver.20  It  is  for  the  court  having  possession 
through  its  receiver  to  determine  how  far  it  will  permit  any  other  court 
to  interfere  Avith  that  possession. 1  A  court  will  not  entertain  a  bill  to 
enforce  the  operation  of  a  road  pending  receivership,  foreclosure  and  sale 
in  another  tribunal. 2 

Where  the  first  court  accepts  a  bond  in  lieu  of  the  property  and  dis- 
charges its  receiver,  the  property  is  no  longer  in  custodia  legis  and  an- 
other court  may  appoint  a  receiver  or  otherwise  take  it  into  custody.s 
Nor  will  a  new  order  setting  aside  the  discharge  of  the  receiver  at- 
tempting to  resume  possession  be  efTective  to  oust  an  intervening  pos- 
session of  another  court.*  A  receiver  of  a  national  bank  appointed  by 
the  treasury  officers  is  not  an  officer  of  a  court  but  of  the  United  States 
so  that  his  possession  does  not  place  property  in  custodia  legis. 5 

[h]     Admiralty  causes. 

In  admiralty  cases  the  Federal  courts  have  sometimes  not  adhered  quite 
as  closely  as  in  other  cases,  to  the  rules  determining  priority  and  right 
to  exclusive  possession.'?  Indeed  weighty  arguments  Tiave  been  urged 
against  the  adoption  of  the  rule  that  a  common  law  court  could  acquire 
a  custody  over  vessels  excluding  a  court  of  admiralty  from  the  dis- 
charge of  its  paramount  and  exclusive  jurisdiction  and  the  performance 
of  its  peculiar  powers; 8  and  the  practical  efficacy  of  the  rule  permitting 
State  courts  to  take  a  vessel  into  custody  is  considerably  impaired  by  the 
fact  that  although  they  may  attach  and  sell  a  vessel  they  may  not  give 

Chamberlain,  55   Fed.    708;    Virginia,  2Bruce  v.  Manchester,  etc.  R.  R.  19 

etc.  Co.  V.  Bristol  L.  €0.  88  Fed.  139;  Fed.  342. 

Lincoln  v.  Street  Ry.  77  Fed.  6G0.  sshields  v.  Coleman,  157  U.  S.  169, 

isSutherland  v.  Railroad  Co.  9  Nat.  39  L.  ed.  660,  15  Sup.  Ct.  Rep.  574. 

Bank  Reg.  311,  23  Fed.  Cas.  464.  4.Shields  v.  Coleman,  157  U.  S.  169, 

i^Gay  V.  Brierfield,  etc.  Co.  94  Ala.  39  l.  ed.  660,  15  Suj).  Ct.  Rep.   574. 

309,  33  Am.  St.  Rep.  127,  11  So.  355,  But   see   Union   T.   Co.   v.   Rockford, 

16  LR.A.  566.                           ^   ,      „  etc.  R.  R.  6  Biss.  197,  Fed.  Cas.  No. 

isLogan  v.  Greenlaw,  12  Fed    19;  ^^^^^    erroneously  holding  dismissal 

PI  /ff'^oo  ^""^'''  ^  ^^^-  ^^^'  ■^  "f  ''"it  did  not  enable  another  court 
Ijlatcnf.  100. 

1 
65, 
S. 

Rep. 
4  C. 

2  0Porter  v.  Sabine,  149  U.  S.  480,    81  Fed.  520. 
37  L.  ed.  815,  13  Sup.  Ct.  Rep.  1008;         ^Moran  v.  Sturges,  154  U.   S.  286, 
People's  Bank  v.  Calhoun,  102  U.  S.    38  L.  ed.  981,  14  Sup.  Ct.  Rep.  1019, 
256,  26  L.  ed.  101.     See  post,  §   1110    illustrates   this, 
et  soq.  8See   dissenting  opinion   Taylor  v. 

iPeople's  Bank  v.  Calhoun,  102  U.  Carryl,  20  How.  595,  15  L.  ed.  1034. 
S.  256,  26  L.  ed.  101. 

149 


§   17   [h]  FEDERAL  JURISDICTION  IN  GENERAL.  [Code  Fed. 

a  marketable  title  free  from  maritime  liens,  nor  enforce  or  satisfy  those 
liens.9  However,  it  is  well  settled  that  both  common  law  and  admiralty 
courts  may  take  a  vessel  into  custody,  and  the  general  rule  is  applied 
that  where  one  court  has  taken  a  vessel  or  res  in  controversy  into 
custody,  this  prevents  a  proceeding  in  any  other  court  interfering  with 
that  custody,  or  maintainable  only  by  virtue  of  possession  of  such  vessel 
or  res.  10  If  the  State  court  has  possession  through  its  receiver  or  by 
attachment  or  replevin,  the  established  rule  now  is  that  libel  in  rem  cannot 
be  prosecuted  in  admiralty,  although  the  libel  will  not  be  dismissed,  n 
Nor  is  libel  in  rem  maintainable  if  the  vessel  be  in  a  State  court's  custody 
through  possession  by  an  assignee  in  insolvencj\i2  It  has  been  held 
that  the  question  of  prior  custody  is  not  determinable  in  favor  of  a 
State  receiver  as  against  a  Federal  marshal  in  admiralty  by  the  date  of  the 
receiver's  appointment;  where  the  marshal  took  actual  possession  before 
the  receiver  had  qualified  and  attempted  to  assume  control,  the  ad- 
miralty court  had  power  to  enforce  a  lien. 1 3  Moreover,  if  a  State  court 
receiver  permit  a  vessel  to  go  into  another  jurisdiction  libel  in  rem  for 
subsequent  accruing  liens  is  there  maintainable  in  admiralty.i*  The  filing 
of  a  bankruptcy  petition  does  not  prevent  libel  in  admiralty  for  a  prior 
lien  if  the  vessel  be  in  another  district. 1 5  If  a  State  court  has  not  ac- 
quired actual  custody  by  replevin,  libel  for  salvage  is  maintainable  in 
admiralty.! 6  So,  if  the  court's  possession  be  only  nominal  and  no  officer 
of  the  court  be  actually  in  control,  subsequent  liens  may  be  enforced  by 
libel.i'^  If  an  officer  of  a  court  be  forcibly  dispossessed  by  one  from  an- 
other court  the  former's  right  remains  para  mount,  is  A  suit  which  does 
not  affect  or  interfere  with  the  possession  of  the  res  by  another  court  but 
merely  ascertains  and  adjudicates  a  claim,  is  not  objectionable. 1 9  Where 
an   admiralty   court   having   satisfied   all   maritime   liens,   has   money   left 

9 See  supra,  note,  [ff]  No.   11827;   The  Gazelle,  1  Spr.  378, 

lOTaylor  V.  Carryl,  20  How.  595.  1.5  Fed.   Cas.   No.   5,280;    In  re  Certain 

L.  ed.  1028;  The  Daniel  Kaine,  35  Fed.  Logs,    2    Sumn.    589,    Fed.    Cas.    No. 

788;   The  Robert  Fulton,  Paine,  620,  2,559.. 

Fed.  Cas.  No.  11,890.  i2The  J.  G.  Chapman,  62  Fed.  940. 

iiThe   Celestine,    1    Biss.    1,   Fed.  But    possession   by    an    assignee    for 

Cas  No.  2,541 ;  Anonymous,  37  Hunt,  benefit    of    creditors,    does    not    put 

Mer.    Mag.   707,    Fed.    Oas.    No.    452 ;  property  incustodia  legis.    The  James 

Fisher  v.  The  Plymouth,  2  Int.  Rev.  Roy,  59  Fed.  785.     See  infra,  note. 

Rec.  109.  Fed.  Cas.  No.  4,822;  Lewis  isMoran  v.  Sturges,  154  U.  S.  286, 

V.   The   Orphens,   3   Ware,    l43.   Fed.  38  L.  ed.  981,  14  Sup.  Ct.  Rep.  1019. 

Oas.  No.  8.330;  The  Circassian,  Fed.  i^The  Willamette  Vallev.  66  Fed. 

Cas.  No.  2.721,  1  Ben.  128;  The  E.  L.  566,  13  C.  C.  A.  635;    The'  Resolute, 

Cain,  45  Fed.  369;  In  re  Schuyler's,  108  U.  S.  439,  42  L.  ed.  533,  18  Sup. 

etc.  Co.  136  N.  Y.  174,  32  N.  E.  625,  Ct.  Rep.  112. 

20  L.R.A.  397;  The  Robert  Fulton,  1  isThe  Ironsides,  4  Biss.   521,  Fed. 

Paine,  620,  Fed.  Cas.  No.  11,890;  The  Cas.  No.  7,069. 

Oliver  Jordan,  2  Curt.  414,  Fed.  Cas.  isScott    v.    Seventy-Five  Tons  of 

No.  10,503.    Contra  see:  Wall  v.  The  Iron,  23  Fed.  197. 

Royal   Saxon,  2  Am.   Law  Reg.  324,  I'^The  Young  America,  30  Fed.  791. 

Fed.  Cas.  No.  17,093;  The  Julia  Ann,  isThe  Joseph  Gorham,  7  Law  Rep. 

1  Spr.  382,  Fed.  Cas.  No.  7.577 ;  The  135,  Fed.  Cas.  No.  7,537. 

John  Richards,  Newb.   73,  Fed.   Cas.  isRussell  v.  Alvarez,  5  Cal.  48. 

150 


Procedure]    CONCURRENT    AND    CONFLICTING   JURISDICTION.        §   17   [i] 

in  its  registry,  and  the  corporation  owning  the  vessel  is  being  wound  up 
through  a  receivership  in  a  State  court,  the  court  of  admiralty  should  pay 
over  such  balance  to  the  receiver  rather  than  allow  and  pay  other  mari- 
time claims  as  to  which  no  lien  exists. 20  The  fact  of  a  pending  State 
court  proceeding  to  cancel  a  mortgage  on  a  vessel,  has  been  held  not  to 
prevent  the  admiralty  court  having  the  proceeds  from  the  sale  of  such 
vessel  in  its  registry,  from  passing  on  the  question  of  the  validity  of  the 
mortgage.2i  Garnishment  of  freight  money  in  admiralty  does  not  pre- 
vent a  second  garnishment  of  the  surplus  by  a  State  court  as  the  property 
i>i  not  in  the  custody  of  the  law.i  It  has  been  held  that  petitory 
suit  in  admiralty  is  maintainable  against  a  sheriif  for  a  vessel  where  his 
possession  is  claimed  to  be  tortious  and  wrongful;  2  or  where  the  law 
under  which  a  State  officer  made  a  seizure  is  alleged  to  be  invalid  as  a 
regulation  of  commerce.  3 

After  a  court's  possession  is  terminated  other  courts  may  proceed  against 
the  property. 4  Upon  the  discharge  of  a  vessel  from  a  State  court's 
custody,  libels  in  rem  are  then  maintainable  in  admiralty  to  enforce  mari- 
time liens  or  other  maritime  rights. 5  If  a  State  court  has  sold  a  vessel 
under  execution,  it  is  subject  in  the  hands  of  the  purchaser  to  prior  mari- 
time liens,6  even  though  the  State  law  professes  to  give  a  title  free  of  all 
liens.7 

[i]  Certain  proceedings  permissible  notwithstanding  possession  of  another 
court. 
As  is  elsewhere  shown  probate  or  insolvency  proceedings s  in  one  court 
do  not  absolutely  prohibit  actions  or  controversies  concerning  the  sub- 
ject-matter in  other  courts.  The  same  is  true  of  admiralty  proseedingss 
and  receivership  cases, 10  and  indeed  of  all  cases  where  property  is  taken 
into  custody.  It  may  be  necessary  sometimes  to  stay  proceedings  until 
the  other  court's  custody  is  terminated. n  But  claims  ultimately  en- 
forceable out  of,  or  liens  upon,  the  property  in  custody,  may  be  litigated 
without  any  stay,  to  the  extent  of  ascertaining  and  preserving  them,  as 
such  action  has  no  tendency  to  disturb  the  other  court's  possession,  or 
cause  a  conflict. 12  So  also,  a  marshal  or  sheriff  may  be  sued  for  a  tortious 
taking  of  property  in  another  court  though  it  may  not  by  replevin  attempt 

20The  Liberty,  119  Fed.  539.  234,  Fed.  Cas.  No.  12^218;  The  Caro- 

2iThe  Gordon  Campbell,  131  Fed.  line.  1  Low.  173.  Fed.  Cas.  No.  2.419. 
963.  6 McAllister  v.  The  Sam  Kirkman, 

iThe  Olivia  A.  Carrigan,  7  Fed.  510.  1  Bond,  384.  Fed.  Ca-s.  No.  8.658. 

2The  J.   W.   French,   13   Fed.   916,        7 The  Eloxena,  53  Fed.  361. 
920.  sSee  supra,  notes. [d]-[e] 

sJervey   v.    The  Carolina,   60   Fed.        9See  supra,  note.Eb] 
1019.  lOSee  infra,  note.[g] 

■iMoran  v.  Sturges,  154  U.  S.  279,        nBoatmens  Bank   v.    Fitzlen.    135 

283.  38  L.  ed.  981,  14  Sup.  Ot.  Rep.  Fed.  650,  68  C.  C.  A.  288;  Williams 

1019;  The  Roslvn  &  Midland,  9  Ben.  v.  Neelv,  134  Fed.  1,  67  C.  C.  A.  171 
119.  Fed.  Cas.  No.  12,068.  i2Williams    v.    Benedict,    S    How. 

5The  Bed  Wing.  14  Fed.  869;  The  107,  12  L.  ed.  1007;  Yonlev  v.  Laven- 

Roslyn,   9    Ben.    119,   Fed.    Cas.    No.  der,  21  Wall.  276,  22  L.  ed.  53t) :  lleid- 

12.068;    The    Sailor    Prince,    1    Ben.  ritter  v.  Elizabeth,  etc.  Co.  112  U.  S. 

151 


§   IT   [i] 


FEDERAL  JURISDICTION  IN  GENERAL. 


[Code  Fed. 


to  dispossess  such  ofFicer.i3  A  State  court  may  entertain  a  suit  against 
a  county  recorder  for  erasure  of  a  mortgage,  though  the  mortgagee  cor- 
poration is  in  the  hands  of  a  receiver  of  a  Federal  court. 1 4  go  also  a 
Federal  court  may  apj^oint  a  receiver  of  property  held  in  trust  undor 
administration  of  a  State  probate  court. is  The  fact  that  a  national  bank 
is  in  a  Federal  receivei-'s  hands  does  not  prevent  a  suit  in  a  State  court 
to  establish  a  claim  against  its  assets; is  or  to  determine  and  segregate  a 
trust  fund  held  by  the  receiver.i"  The  attachment  of  a  fund  by  a  Federal 
court  does  not  prevent  suit  in  a  State  court  to  try  title  thereto. is  It  has 
been  held  that  foreclosure  in  the  Federal  court  vpill  prevent  a  State  court 
from  entertaining  a  suit  to  quiet  title  to  the  property. 1 9  Proceedings  in 
a  State  court  for  the  dissolution  of  a  corporation  do  not  deprive  the  Fed- 
eral court  of  power  to  adjudicate  claims  between  it  and  a  stockholder.20 
A  suit  for  damages  for  waste  may  proceed  in  a  Federal  court,  notwith- 
standing foreclosure  proceedings  in  a  State  court. 1  A  suit  to  establish  a 
right  to  one  third  of  lands  may  preceed  in  a  State  while  the  Federal  court 
is  entertaining  proceedings  for  its  condemnation  to  the  government.2 
Pendency  of  Federal  foreclosure  proceedings  will  not  prevent  a  State  court 
from  entertaining  a  bill  by  the  mortgagor's  creditors  to  have  it  declared 
fraudulent. 3  Criminal  proceedings  may  be  taken  against  officers  of  a 
company  in  the  hands  of  a  receiver,  and  possession  of  the  res  gives  the 
Federaj  court   no   power  to   enjoin   such   prosecution.'*     The   Federal   couit 


;!04,  28  L.  ed.  733,  5  Sup.  Ct.  Rep. 
140;  Anglo,  etc.  Co.  v.  Cheshire,  124 
Fed.  464;  People's  Bank  v.  Calhoun, 
102  U.  S.  256,  26  L.  ed.  101;  Gates 
V.  Bucki,  53  Fed.  968.  4  C.  C.  A.  116; 
Clifton  V.  Foster  103  Mass.  233,  4 
Am.  Rep.  539 ;  United  States  v.  Eisen- 
beir,  112  Fed.  190,  50  C.  C.  A.  179; 
Levi  V.  Columbia  L.  I.  Co.  1  Fed. 
206,  1  McCrary,  34;  Mercantile  T. 
Co.  V.  Lamoille,  etc.  R.  R.  16  Blatchf. 
327,  Fed.  Cas.  No.  9,432:  Boatmen's 
Bank  v.  Fritzlen,  135  Fed.  650,  68  C. 
C.  A.  288.  But  suit  to  foreclose  a 
lien  will  not  lie  where  mortgage  fore- 
closure is  pending  in  State  court. 
Security  T.  Co.  v.  Union  T.  Co.  134 
Fed.  301. 

13  See  supra,  note.[f]  State  courts 
have  frequently  asserted  their  right 
to  maintain  replevin.  Wilde  v. 
Rawles,  13  Colo.  586,  22  Pac.  898; 
Leighton  v.  Harwood,  111  ]\Iass.  71, 
15  Am.  Rep.  8;  Carew  v.  Matthews, 
41  Mich.  577,  2  N.  W.  830.  See  25 
Am.  St.  Rep.  259  note. 

i-i Calhoun  v.  Lanaux,  127  U.  S.  640, 
32  L.  ed.  297,  8  Sup.  Ct.  Rep.  1347, 
1348. 

1  SBall  V.  Tompkins,  41  Fed.  490. 


16  First  Xat.  Bank  v.  Pahquioque 
Bank,  14  Wall.  383,  20  L.  ed.  842. 
See  Chemical  N.  Bank  v.  Bailev,  12 
Blatchf.  483,  Fed.  Cas.  No.  2,635.  A 
receiver  appointed  by  the  comptroller 
is  not  an  officer  of  the  court  at  all. 
In  re  Chetwood,  165  U.  S.  443,  41  L. 
ed.  782,  17  Sup.  Ct.  Rep.  385. 

iTFlint  Co.  V.  Stephens,  32  Mo. 
App.  349. 

isMontgomery  v.  McDermott,  87 
Fed.  374. 

19 Cohen  v.  Solomon,  66  Fed.  413. 

2  0Straine  v.  Bradford  Sav.  Bank, 
88  Fed.  571. 

iHubinger  v.  Central  T.  Co.  94  Fed. 
791,  36  C.  C.  A.  494. 

2United  States  v.  Eisenbeis,  112 
Fed.  190,  50  C.  C.  A.  179. 

sGav  V.  Brierfield  Coal  Co.  94  Ala. 
.309,  33  Am.  St.  Rep.  127,  11  So.  355, 
16  L.R.A.  567,  the  court  intimated 
that  it  might  not  be  able  to  grant 
full  relief. 

4Harkrader  v.  Wadley,  172  U.  S. 
148,  43  L.  ed.  399,  19  Sup.  Ct.  Rep. 
119.  See  Anglo,  etc.  Co.  v.  Cheshire, 
etc.  Inst.  134"  Fed.  153. 


152 


Procedure]    CONCURRENT  AND   CONFLICTING  JURISDICTION.       §  17   [kj 

may  stay  execution  on  its  judgment  in  any  case  where  it  might  iuLorJ'eie 
with  the  State  court's  custody,  or  refuse  to  do  so  if  it  would  not.5 

[j]     Discharge  or  termination  of  custody  or  possession. 

A  right  to  proceed  against  or  take  property  into  custody  attaches  at 
once  upon  the  termination  of  the  possession  or  dominion  of  another  court.* 
As  is  elsewhere  shown  the  completion  of  probate  administration,"  or  o: 
admiralty  proceedings,*  enables  other  courts  to  reach  the  property  that 
has  been  in  custodia  legis.  The  giving  of  a  forthcoming  bond  for  re- 
plevied property  does  not  release  it  from  custody,9  though  a  bond  to  pay 
a  judgment  rendered  does  release  property  levied  upon.io  Where  a  court 
has  discharged  property  from  its  custody,  it  cannot  thereafter  resume  pos- 
session if  another  court  has  meantime  acquired  an  intervening  custody. li 
The  dismissal  of  the  suit  in  one  court  leaves  the  other  free  to  proceed.! 2 
Sale  and  conveyance  of  a  foreclosed  railroad  to  the  purchasers  terminates 
the  court's  possession,  which  is  not  revived  as  against  an  intervening 
possession  of  another  court,  by  proceedings  to  set  aside  the  decree  for 
fraud. 13  But  where  one  of  the  conditions  of  a  foreclosure  sale  is  tiiat 
the  purchaser  pay  certain  liens  against  the  road,  the  foreclosing  court 
retains  jurisdiction  to  enforce  compliance  with  this  condition;  14  and 
may  enjoin  a  State  proceeding  to  enforce  against  the  purchaser,  another 
liability  for  which  the  property  in  his  hands  is  not  properly  liable. is 
Where  a  State  court  has  decreed  possession  of  property  to  certain  persons 
without  defining  the  character  of  that  possession,  the  Federal  court  may 
entertain  suit  to  establish  it  as  fiduciary.  1 6 

[k]     Effect  of  unauthorized  seizure  and  relief  therefrom. 

It  is  always  competent  to  show  that  the  court  was  without  jurisdiction 
of  the  cause  in  which  it  took  property  into  custody,  and  a  seizure  under 
such  cii(.; instances  is  illegal  and  relief  may  be  had  in  the  seizing  court. i 
If  the  Federnl  writ  of  attachment  though  not  void,  is  illegally  levied  on 
Sunday,  the  marshal's  possession  thereunder  is  illegal  and  an  attaching 
creditor  from  a  State  court  may  upon  application  to  the  Federal  court 
have  his  prior  right  as  garnishee  of  the  marshal,  declared. 2  It  has  been 
argued  in  a  number  of  cases  that  where  a  marshal  seizes  the  property  of 

6Buck  v.  Colbath,  3  Wall.  342,  18  uShields  v.  Coleman,  157  U.  S.  183, 

L.  ed.  257;  Day  v.  Gallup,  2  Wall.  97,  39  L.  ed.  660,  15  Sup.  Ct.  Rep.  570. 

17  L.  ed.  855;  Moran  v.  Sturges.  154  i2Glenn  v.  Leggett.  47  Fed.  474. 

U.  S.  279,  283.  38  L.  ed.  981,  14  Sup.  isCentral   N.   Bank   v.   Hazard,   49 

Ct.    Rep.    1010;    Andrews    v.    Smith,  Fed.  293. 

5    Fed.    836.    19    Blatchf.    100.      See  1 4  Stewart   v.    Wisconsin,   etc.   Ry. 

Boatmen's     Bank     v.     Fritzlen,     135  117  Fed.  782. 

Fed.  650,  68  C.  C.  A.  288.  isjulian  v.  Central  T.  Co.  193  U. 

"See  supra,  note.Ce]  S.  93,  48  L.  ed.  629;  24  Sup.  Ct.  Rep. 

8See  supra,  note,  [h]  399. 

9Hagan  v.  Lucas,  10  Pet.  404,  9  L.  isWatson  v.  Jones.  13  Wall.  720,  20 

ed.  470;  United  States  v.  Dantzler,  3  L.   ed.  600. 

Woods,  719,  Fed.  Cas.  No.  14,917.  iFreeman   v.   Howe,   24  How.   459, 

loShields   v.    Coleman,    157    U.    S.  16  L.  ed.  749. 

183,  39  L.  ed.  660,  15  Sup.  Ct.  Rep.  2Gumbel  v.  Pitkin.  124  U.  S.   154, 

570.  31   L.   ed.   374,   8  Snp.  Ct.  Rep.   379. 

153 


§   17    [1]  FEDERAL    JURISDICTION    IN    GENERAL.  [Code   Fed. 

A  111)011  a  writ  against  B,  the  property  is  not  in  custody  of  the  Federal 
court  because  he  has  not  obeyed  the  court's  mandate,  and  hence  that 
replevin  in  a  State  court  would  lie.3  But  this  contention  was  made  in  the 
leading  case  denying  the  right  of  replevin  in  a  State  court,  and  is  there 
answered. ■!  If  want  of  jurisdiction  is  alleged  or  seizure  of  another's  prop- 
erty, the  seizing  court  should  pass  upon  the  question,  and  not  some  other 
tribunal,  and  relief  should  be  sought  in  the  court  which  has  taken 
the  property  into  its  custody. 5  The  Federal  courts  have  not,  how- 
ever, always  adhered  to  this  reasoning  and  have  granted  injunction 
against  the  taking  of  A's  property  upon  process  against  B.6  So 
also  they  have  entertained  a  petitory  suit  in  admiralty  against  a 
sheriff  for  a  vessel  in  his  possession  where  alleged  to  be  tortious  and 
wrongful; 7  and  where  a  law  under  which  a  State  officer  seized  a  vessel 
was  claimed  to  be  invalid  as  a  regulation  of  commerce. s  Wliere  receivers 
have  been  appointed  by  different  courts  for  the  same  property,  it  would 
seem  proper  to  settle  the  right  of  possession  between  them,  in  the  court 
whose  receiver  has  actually  obtained  possession. 9  It  Is  generally  true, 
also,  that  the  court  having  possession  will  protect  that  possession  by  in- 
junction against  proceedings  elsewhere,  notwithstanding  the  rule  that 
neither  Federal  nor  State  court  should  enjoin  proceedings  in  the  other.io 
If  a  seizure  by  a  marshal  was  wrongful,  it  does  not  become  rightful  by 
mere  forcible  continuance.!!  If  the  appointment  of  a  State  receiver  is  in- 
valid because  made  by  a  judge  in  vacation,  the  property  is  not  in  fact  in 
custodia  legis  and  where  taken  into  custody  by  the  Federal  court  through 
a  receiver  subsequently  appointed  the  latter's  action  will  be  upheld.! 2 
An  allegation  that  a  receiver's  appointment  was  obtained  by  fraud  will 
not  make  his  possession  unauthorized  or  any  the  less  the  possession  of  the 
court.! 3  Nor  will  an  allegation  that  a  State  court  had  no  power  to  ap- 
point a  receiver  justify  a  Federal  court  in  enjoining  such  receiver  from 
proceeding  to  reduce  certain  assets  to  actual  possession.!* 

1^1]     Effect  of  garnishment  in  one  court  of  debtor  sued  in  another. 

Garnishment    does   not    place   property    strictly   in   the   custody    of   the 
law.!  5     But  there  arises  a  necessity  for  comity  where  a  debtor  is  garnished 

3See  25  Am.  St.  Rep.  259  note.  ^Shields  v.  Coleman,  157  U.  S.  183, 

•iFreeman   v.  Howe,   24  How.   456,  39  L.  ed.  660,  15  Sup.  Ct.  Rep.  570. 

16   L.   ed.   749.     But   see   Cropper   v.  i^See  Hammock  v.   Farmers   L.   & 

Coburn,  2   Curt.   465,   Fed.   Cas.   >^o.  T.  Co.   105  U.   S.  77,  26  L.  ed.  1111. 

3,416.  See  post,  §  20[c]  21. 

5See  Senior  v.  Pierce.  31  Fed.  631,  i^Shields   v.    Coleman,    157    U.    S. 

Phelps  V.  M..tual.  etc.  Assn.  112  Fed.  ^?^'  ^^  L.  ed.  660,  15  Sup.  Ct.  Rep. 


468.  50  C.  C.  A.  339. 


570. 


„ri  r<  X.  o    o     A     Aot;         i2Hammock  v.  Farmers  L.  &  T.  Co. 

eCropper   v.   Coburn    2    Curt.   465    j^^  ^    g    77    26  L.  ed.   1111. 
Fed_^Cas  No.  3,416;  Julian  V.  Central        isAttleborough,    etc.    Bank    v.    N. 
T.  Co.  115  Fed.  962,  963,  53  C.  C.  A.   w,  J^J;f„   Qq   28  Fed.  114. 
^^^-  !4Pirelps  V.  Mutual,  etc.  Assn.  112 

7Tlie  J.  W.  French,  13  Fed.  916.       Fed.  467,  50  C.  C.  A.  339. 

s.Tervey  v.   The   Carolina,   66   Fed.        !5The  Olivia  A.   Carrigan,   7   Fed. 
1019.  510. 

154 


Procedure]      CONCURRENT  AND  CONFLICTING  JURISDICTION.       §   17   [1] 

in  one  court  for  part  or  all  of  the  debt  for  which  a  suit  by  his  creditor  is 
then  pending  or  is  thereafter  brouglit  in  another  court,  State  or  Federal, 
within  the  same  State.  1 6  As  between  the  suit  on  the  debt  and  the  garnish- 
ment suit  tlie  rule  of  priority  prevails,  determined  by  the  time  of  service 
of  process.i''  If  the  garnishment  be  subsequent  to  the  suit  on  the  debt, 
that  suit  will  still  proceed  and  a  plea  of  abatement  is  not  maintainable.! « 
Some  courts  have  refused  to  entertain  such  subsequent  garnishment.!  9 
The  State  courts  apply  the  rule  as  against  subsequent  garnishment  by  the 
Federal  court.so  If  the  garnishment  precede  a  suit  on  the  debt  in  the  same 
State,!  a  plea  of  abatement  in  the  latter  will  be  sustained;  and  recovery 
in  the  garnishment  proceeding  against  the  defendant  is  a  defense  pro 
tanto  to  the  suit  on  the  debt. 2  In  some  jurisdictions  judgment  will  be 
given  in  suit  on  the  debt  though  subsequent  to  the  garnishment,  but  with 
stay  of  execution  until  release  from  the  garnishment. 3  After  recovery  of 
judgment  on  a  debt  in  a  Federal  court,  it  is  held  that  the  judgment  can- 
not be  garnished  by  process  out  of  the  State  court.*  Nor  can  money  pro- 
ceeds in  hands  of  a  court  of  admiralty  be  garnished  by  creditors  of  the 
owner  on  a  State  court  judgment.  5  If  a  garnishee  shows  that  notwith- 
standing his  plea  of  the  prior  garnishment  in  a  suit  elsewhere  on  the 
debt  he  was  compelled  to  pay,  judgment  will  not  be  given  against  him  in 
the  garnishment  proceeding.^  In  admiralty  it  has  been  held  that  freight 
monej'  may  be  ordered  paid  into  court,  thought  the  part}'  owing  it  has 
previously  been  garnished  in  a  common  law  action. 7 

isThe  rule  does  not  apply  to  suit  Somerville,  8  Md.  458;  Minor  v. 
in  another  State: Lancashire,  etc.  Co.  Rogers  C.  C.  25  Mo.  App.  81.  But 
v.  Corbetts,  165  111.  600.  56  Am.  St.  see  Lvnch  v.  Hartford  F.  I.  Co.  17 
Rep.  281,  46  N.  E.  633,  36  L.R.A.  Fed.  627;  Avery  v.  Boston,  etc.  Co. 
043;   Cole  v.  Flitcroft,  47  Md.  315.        72    Fed.    700;    Barnsdall   v.    Walten- 

i^Xorth,  etc.  Co.  v.  First  Nat.  Bk.    mever,  142  Fed.  415. 
3  Tex.  Civ.  App.  295,  22  S.  W.  992.        sHowland   v.    Chicago,    etc.    R.   R. 

!8Wa.llace  v.  McConnell,  13  Pet.  134  Mo.  482,  36  S.  W.  31;  Virginia, 
151,  10  L.  ed.  95;  Campbell  v.  Emer-  etc.  Co.  v.  New  York,  etc.  Co.  95  Va. 
son,  2  McLean,  33,  Fed.  Cas.  No.  518,  28  S.  E.  889,  40  L.R.A.  239,  and 
2,357 :  Greenwood  v.  Rector.  Hempst.    cases  cited. 

708,  Fed.  Cas.  No.  5,792;'  Hauf  v.  4Thomas  v.  Wooldridge,  2  Woods, 
Wilson,  31  Fed.  388;  Blydenistein  v.  667,  Fed.  Cas.  No.  13,918  per  Brad- 
N.  Y.  etc.  Co.  59  Fed.  12;  Mack  v.  ley,  J.;  Alabama,  etc.  Co.  v.  Gir- 
Winslow,  59  Fed.  319,  8  C.  C.  A.  ardy,  9  Fed.  142;  Henry  v.  Gold  P. 
134;  Bingham  v.  Smith.  5  Ala.  652;  Co.  15  Fed.  650,  5  McCrary  70; 
Hamill  v.  Peck.  11  Colo.  App.  41,  52  Loomis  v.  Carrington,  18  Fed.  97; 
Pac.  217;  American  Bank  v.  R')llins,  American  Bank  v.  Snow,  9  R.  I.  11, 
99  Mass.  314:  Miller  v.  Tavlor.  14  98  Am.  Dec.  364.  See  Scott  v.  Roh- 
Tex.  541;  Burke  v.  Hanco.  76  Tex.  man,  43  Neb.  629,  47  Am.  St.  Rep. 
81,  18  Am.  St.  Rep.  31,  13  S.  W.  164.    775,  62  N.  W.  49. 

!!' Perkins  v.  Guv,  2  :Mont.  21.  sTlie  Lottawanna.  20  Wall.  223.  22 

2  0Arthur  V.  Batte,  42  Tex.  100.  L.   ed.   2.59;    In   re   Forsyth,   78   Fed. 

!lt    is   no   defence   to   suit   in   an-   302. 
other   State,   Deming   v.   Orient   Ins.        eyirginia,   etc.   Co.   v.   New   York, 
Co.  78  Fed.  4.  etc.   Co.    95   Va.   518,   28    S.   E.   889, 

nVabash.  etc.   R.   R.   v.   Tourville,   40  L.R.A.  239. 
179  U.  S.  322,  45  L.  ed.  210,  21  Sup.        ^The   Caroline,    1    Low.    173;    Fed. 
•t.  Rep.  113:  Waallaee  v.  :McConnelI,    Cas.  No.  2,419. 
13  Pot.  151,  10  L.  ed.  102;    Brown  v. 

155 


§   18   [a]  FEDERAL  JURISDICTION  IN  GENERAL.  [Code  Fed. 

§  18,  — persons  in  custody — habeas  corpus. 

While  there  often  exists  a  conc'jirrent  jurisdiction  to  jjunish  an 
act  because  an  offense  against  both  State  and  Federal  laws,  no  con- 
flict between  State  and  Federal  courts  seems  ever  to  have  resulted 
therefrom. f^^  The  Federal  courts,  however,  have  a  power  to  re- 
lease on  habeas  corpus.  State  prisoners  detained  in  violation  of  some 
Federal  right,  and  this  power,  while  it  cannot  create  a  conflict,  has 
been  deemed  of  so  delicate  a  nature,  as  to  require  caution  and 
temperate  forbearance  in  its  exercise.  The  Supreme  Court  has  ac- 
cordingly laid  down  and  follows  several  rules  governing  the  issuance 
of  the  writ  for  the  release  of  State  prisoners. ^''^ 
Author's  section. 

[a]  Conflict  of  jurisdiction  as  to  persons  in  custody. 

As  is  elsewhere  shown,  many  acts  constitute  crimes  against  both  State 
and  nation,  with  a  resulting  concurrent  power  of  punishment  in  State  and 
Federal  courts. i  There  seem  to  be  no  cases  in  which  conflict  has  arisen 
from  attempts  to  prosecute  the  same  person  concurrently  in  the  State  and 
Federal  courts,  although  there  are  cases  where  an  accused  has  sought  to 
create  embarrassment  between  the  two  courts. 2  In  case  of  such  conflict 
the  right  to  proceed  would,  by  analogy  to  civil  cases  of  concurrent  juris- 
diction, belong  to  the  court  in  which  proceedings  looking  to  the  appre- 
hension of  the  defendant  were  first  taken, 3  or  if  arrest  preceded  the  filing 
of  information  or  complaint,  then  to  the  arresting  court,  if  prior  in  time  to 
the  proceedings  in  the  other  court. 

[b]  When  habeas  corpus  will  issue  to  release  State  prisoner. 

The  cases  calling  for  comity  and  forbearance  between  Federal  and  State 
tribunals  are  those  in  which  habeas  corpus  is  sought  in  one  to  free  a  per- 
son in  custody  of  the  other.  State  courts  have  no  power  upon  habeas 
corpus  to  free  a  person  in  Federal  custody  and  held  by  Federal  author- 
ity.»  But  the  Federal  courts  are  empowered  by  habeas  corpus  to  inquire 
into  the  detention  of  persons  by  a  State  in  violation  of  the  Federal  Consti- 
tution and  laws  or  for  acts  done  or  omitted  pursuant  to  such  laws  or  for 
acts  done  or  omitted  under  any  right  or  authority  derived  from  a  foreign 
power,  and  thereupon  to  deal  with   such  person  "as  law  and  justice   re- 

iSee  ante,  §   IS.M  Case,    13   AVall.   403,   20  L.    ed.   599; 

sUnited   States  v.   French,   1   Gall.  Robb  v.  Connollv,  111  U.  S.  639,  28 

1,   Fed.   Cas.   xVo.   15,165;    Mackin   v.  L.  ed.  547,  4  Sup.  Ct.  Rep.  544:   Ex 

People,    (111.)    8   N.   E.    178;    In   re  parte  Royall,  117  U.  S.  250.  29  L.  ed. 

Fox,  51  Fed.  427.  8G8,  6  Sup.   Ct.  Rep.  739,   Ex  parte 

sSee  In  re  Johnson,  167  U.  S.  120,  Kelly,    37    Ala.    476;    In    re    Copen- 

42  L.  ed.  103,  17   Sup.  Ct.  Rep.  737.  ha.ver,  118  jIo.  383,  40  Am.  St.  Rep. 

BDimcan  v.  Darst,  1   How.  308,  11  384.  24  S.  W.  162;  In  re  Johnson,  46 

L.    ed.    139;    Ableman    v.    Booth,    21  Fed.  480. 
How.    523,    16   L.    ed.    169;    Tarble's 

156 


Procedure]    CONCURRENT   AND    CONFLICTING    JURISDICTION.        §   18    [b] 

quire."6  This  gives  the  Federal  courts  a  very  important  power  of  inter- 
ference in  criminal  proceedings  in  State  courts.  With  a  view  to  harmony 
and  out  of  respect  to  the  co-ordinate  State  tribunals,  the  Federal  courts 
have  declared  that  they  have  a  right  in  their  discretion,  to  decline  to  pass 
upon  the  Federal  questions  raised,  by  the  writ  of  habeas  corpus,  and  to 
leave  them  for  settlement  by  tlie  ordinary  method  of  trial  and  appeal  in 
the  State  courts  and  thereafter  by  writ  of  error  in  the  Federal  Supreme 
Court."  Where  a  State  imprisons  for  an  act  done  or  omitted  under  some 
Federal  authority  or  under  a  right  or  authority  derived  from  a  foreign 
State,  the  operations  of  the  Federal  government  and  its  relations  to  foreign 
nations  are  involved;  and  in  such  cases  because  of  their  urgency  and  im- 
portance, the  summary  process  of  habeas  corpus  may  properly  be  resorted 
to  in  advance  of  trial  in  the  State  court.8  But  urgency  is  not  deemed  to 
exist  even  in  such  cases,  where  the  petitioner  is  not  an  officer  of  the 
United  States  and  his  authority  to  do  the  act  is  doubtful.9  Where  the 
detention  by  State  authority  is  claimed  to  be  in  violation  of  the  Federal 
Constitution  or  laws  the  general  rule  is  that  a  Federal  court  will  not  re- 
lease the  prisoner  on  habeas  corpus  in  advance  of  trial  in  the  State  court 
except  under  special  circumstances  requiring  immediate  action. i"  The 
practice  of  thus  passing  upon  a  Federal  question  before  it  has  been  raised 
and  decided  in  the  State  court  is  not  to  be  encouraged. n 

After  trial  in  the  State  court  the  Federal  court  will  still  exercise  its 
discretion  in  deciding  whether  the  accused  shall  be  put  to  his  writ  of 
error  from  the  highest  court  of  the  State,  or  whether  by  habeas  corpus  it 
will   summarily  determine   the  alleged  violation   of  the   Federal  Constitu- 


6See  post,  §  1670  et  seq.  See  Ex 
parte  Rocjers.  1.38  Fed.  flOl. 

7 Ex  parte  Rovall.  117  U.  S.  253, 
29  L.  etl.  868,  6  Sup.  Ct.  Rep.  741; 
AVhitten  v.  Tomlinson,  100  U.  S.  241, 
40  L.  ed.  406,  16  Sup.  Ct.  Rep.  297; 
Tinsley  v.  Anderson,  171  U.  S.  105, 
43  L.  ed.  96,  18  Sup.  Ct.  Rep.  807? 
Minnesota  v.  Brundage,  ISO  U.  S.  501, 
45  L.  ed.  640,  21  Sup.  Ct.  Re<p.  455, 
and  cases  cited ;  McElvaine  v.  Brush, 
142  U.  S.  160,  25  L.  ed.  971,  12  Sup. 
Ct.    Rep.    1.58. 

8Ex  parte  Rovall,  117  U.  S.  252, 
29  L.  ed.  868,  6  Sup.  Ct.  Rep.  740; 
In  re  Neagle,  135  U.  S.  41,  70,  34  L. 
ed.  55:  10  Sup.  Ct.  Rep.  658;  New 
York  V.  Eno,  155  U.  S.  94,  39  L.  ed. 
80,  15  Sup.  Ct.  Rep.  30;  Ohio  v. 
Thomas,  173  U.  S.  284.  43  L.  ed. 
702,  19  Sup.  Ct.  Rep.  456;  Boske  v. 
Cominffore,  177  U.  S.  466.  44  L.  ea. 
849,  20  Sup.  Ct.  Rep.  701  ;  In  re 
Reinitz,  39  Fed.  204,  4  L.R.A.  236; 
Ex  parte  Conway,  48  Fed.  77:  In  re 
Waite,  81  Fed.  359:  Campbell  v. 
Waite,  88  Fed.  107,  31  C.  C.  A.  403; 


In  re  Anderson,  94  Fed.  487;  In  re 
Lonev,  134  U.  S.  372,  33  L.  ed.  949, 
10  Sup.  Ct.  Rep.  584;  Anderson  v. 
Elliott,  101  Fed.  609,  41  C.  C.  A. 
521 ;  United  States  v.  Fuellhart,  106 
Fed.  911. 

9ln    re  Matthews,   122   Fed.   248. 

loEx  parte  Rovall,  117  U.  S.  253, 
29  L.  ed.  868,  6  Sup.  Ct.  Rep.  741; 
Tinslev  v.  Anderson,  171  U.  S.  105, 
43  L. 'ed.  97,  18  Sup.  Ct.  Rep.  807: 
Davis  V.  Burke,  179  U.  S.  402,  45 
L.  ed.  251,  21  Sup.  Ct.  Rep.  210; 
United  States  v.  Chapel,  54  Fed.  140; 
Ex  i>arte  Cov.  32  Fed.  911;  United 
States  V.  Fiscus.  42  Fed.  397 ;  United 
States  V.  McAleese,  93  Fed.  656,  35 
C.  C.  A.  529;  In  re  Bradlev.  96  Fed. 
970:  Ex  parte  Glenn.  103  Fed.  947; 
Rogers  v.  Peek,  199  U.  S.  425,  50  L. 
ed.  256,  26  Sup.  Ct.  Rep.  87. 

iiCook  V.  Hart,  146  U.  S.  195.  36 
L.  ed.  934,  13  Sup.  Ct.  Rep.  40.  At 
circuit  these  principles  have  not  al- 
wavs  been  followed:  In  re  Beine, 
42  "Fed.  545;  In  re  White,  43  Fed. 
913.   11    1>.R.A.  284. 


157 


§  18   [b] 


FEDERAL    JURISDICTION    IN    GENERAL. 


[Code  Fed. 


tion  and  laws  involved  in  his  detention.12  Special  circumstances  making 
out  a  case  of  urgency  must  appear  before  the  Federal  court  will  interfere.is 
The  same  is  true  after  decision  in  the  State  appellate  court,  and  error  is 
the  proper  mode  of  redress.  1 4  In  deciding  whether  a  particular  case 
is  so  urgent  as  to  demand  the  exercise  of  this  summary  power,  before 
and  after  trial,  the  Federal  court  will  take  into  consideration  and  its  de- 
cision will  be  influenced  by  the  ability  of  the  accused  to  give  bail,  and 
the  reasonableness  of  the  bail  exacted; is  failure  to  raise  the  constitutional 
question  in  the  State  court;i6  the  prospect  of  a  speedy  trial  in  the  State 
court;  17  the  absence  of  remedy  by  appeal  of  one  convicted  of  contempt ;is 
the  fact  that  no  Federal  indictment  has  been  made  in  cases  Avliere  release 
is  sought  because  the  act  is  only  an  offense  against  the  Federal  govern- 
ment; 19  fact  of  want  of  diligence  in  the  State  courts; 20  the  fact 
that  the  statute  upon  which  the  prosecution  is  founded,  is  admittedly 
valid ;i  the  fact  that  an  ordinance  is  plainly  invalid;  2  the  fact  that  the 
offense  is  plainly  beyond  the  jurisdiction  of  the  State; 3  the  existence  of 
doubt  as  to  the  alleged  violation  of  the  Federal  Constitution;*  the  fact 
that  petitioner  himself  instigated  the  state  proceedings  against  him. 5  But 
the  fact  that  large  interests  affecting  the  business  of  many  or  the  rights 
of  the  public  are  involved  has  recently  been  declared  not  a  sufficient  rea- 
son  for  discharge  under  the   writ. 6     The   principle   of  these   cases   applies 


i2Ex  parte  Royall,  117  U.  S.  253,    Gusnian  v.  Marrero,  180  U.  S.  SI,  45 
29  L.  ed.  868,  6   Sup.  Ct.  Rep.  741;    L.  ed.  43G,  21  Sup.  Ct.  Rep.  293. 


Duncan  v.  McCall,  139  U.  S.  454,  35 
L.  ed.  222,  11  Sup.  Ct.  Rop.  573; 
Whitten  v.  Tomlinson.  100  U.  S.  242, 
40  L.  ed.  406,  16  Sup.  Ct.  Rep.  297; 
In  re  Kin",  51   Fed.   434;    Nesbit  v. 


I'Ex  narte  Rovall.  117  J.  S.  252, 
29  L.  ed.  868,  6  Saip.  Ct.  Rep.  742. 

isEx  parte  Strieker,  109  Fed.  145. 

isNew  York  v.  Eno.  155  U.  S.  98, 
39  L.  ed.  80.  15  Sup.  Ct.  Rep.  33;  In 


Hert,   91    Fed.    123;    Eaton   v.   West    re  Fox.  51  Fed.  427. 


Virginia,    91    Fed.    760,   34   C.    C.   A. 
68;  Ex  parte  McMinn.  110  Fed.  954. 


20 Minnesota   v.   iJrundage,   180   U. 
S.    501.    45   L.    ed.    640,    21    Sup.    Ct. 


i3Ex  parte  Fonda,  117  U.  S.  518,  29  Rep.  455. 

L.  ed.  994,  6  Sup.  Ct.  Rep.  848;  Reid  iln  re  AVood.  140  U.  S.  290,  35  L. 

V.  Jones,  187  U.  S.  153,  47  L.  ed.  IIG,  ed.   505,   11   Sup.   Ct.  Rep.  738. 

23  Sup.  Ct.  Rep.  89;  Rogers  v.  Peck,  2ln  re  Ah  Jow,  29  Fed.  181 :  In  re 

199  U.  S.  425,  50  L.  ed.  256,  26  Sup.  Christensen,  43  Fed.   243;    Ex   parte 

Ct.  Rep.  87.  Green,  114  Fed.  959. 

i4In  re  Wood,  140  U.  S.  290,  35  L.  sin  re  Lonev,  134  U.  S.  372,  33  L. 

ed.  505,  11  Sup.  Ct.  Rep.  738;  Whitten  ed.  949,   10  Sup.  Ct.  Rep.  584;   In  re 

V.  Tomliupon,  160  U.  S.  242,  40  L.  ed.  Ladd.  74   Fed.   31.     See   in  re   Brad- 

406,  16  Sup.  Ct.  Rep.  297 ;  Tinsley  v.  ley,  96  Fed.  970. 

Anderson.  171  U.  S.  104,  43  L.  ed.  91,  4Ex  parte  Hanson,  28  Fed.  127. 


18  Sup.  Ct.  Rep.  805;  Reid  v.  Jones, 
187  U.  S.  153,  47  L.  ed.  116,  23  Sup. 
Ct.  Re--).  89. 


5In  re  Alexander,  84  Fed.  633. 
SMinnesota    v.    Brundage,    180    U. 
S.  499,  21   Sup.   Ct.  Rep.   457,  45  L. 


i5Ex  parte  Royall,  117  U.  S.  250,  ed.  639,  reversing  circuit  court.  In 
27  L.  ed.  868,  6 'Sup.  Ct.  Rep.  739;  re  Brimdage,  96  "Fed.  963,  969.  Con- 
Baker  V.  Gwice,  169  U.  S.  293,  42  L.  tra,  see  Ex  parte  Jervev,  66  Fed.  957; 
ed.  748.  18  Sun.  Ct.  Rep.  323;  In  re  Minnesota  v.  Barber,  136  U.  S.  313, 
Flinn,  57  Fed.  496.  34  L.  ed.  455,  10  Sup.  Ct.  Rep.  862; 

isDavis   V.   Burke,   179   U.    S.   399,  Ex   parte   Kieffer,   40   Fed.   39. 
45  L.  ed.  :i49,  21   Sup.  Ct.  Rep.  210: 

158 


Procedure]    CONCURRENT   AND    CONFLICTING   JURISDICTION.  §    19 

to  an  attempt  to  review  a  State  court's  commitment  for  contempt."  The 
commitment  of  persons  to  a  State  insane  asylum  is  a  matter  for  the  States 
to  regulate,  and  Federal  courts  will  not  generally  interfere  by  habeas 
corpus.  8 

§  19.  — power  of  State  or  Federal  court  to  vacate  or  relieve 
against  the  others  judgment  or  decree. 
When  and  to  what  extent  a  Federal  court  may  attack  or  relieve 
against  a  State  court's  judgment  or  decree,  is  not  altogether  clear. "^^^ 
Plainly  inferior  Federal  courts  have  no  supervisory  or  appel- 
late jurisdiction  over  State  tribunals,  except  in  the  special  case  of 
habeas  corpus;  and  the  salutary  doctrine  of  res  adjudicata  should 
apply  with  especial  force  between  the  co-ordinate  State  and  Federal 
tribunals.  Moreover,  a  Federal  court's  power  to  take  cognizance  of 
a  proceeding  attacking  a  State  judgment  or  decree,  is  necessarily 
limited  to  such  as  may  fairly  be  deemed  independent  and  original, 
involving  a  new  case  and  depending  upon  new  facts,  as  dis- 
tinguished from  proceedings  ancillary  and  incidental,  such  as  motion 
for  new  trial  or  bill  of  re\iew  based  upon  irregularities  or  newly 
discovered  evidence.  The  original  jurisdiction  and  their  juris- 
diction on  removal  is  over  suits,^^  and  not  over  some  incidental 
petition,  motion  or  proceeding.  Xotwithstanding  these  limitations, 
however,  they  have  an  undoubted  power  to  relieve  against  the  effect 
of  State  judgment  on  equitable  grounds.  There  is  a  distinction 
which,  it  is  conceived,  is  of  controlling  importance,  between  a 
direct  attack  on  a  judgment  by  proceeding  to  vacate  or  annul  it, 
and  an  indirect  attack  which,  without  attempting  to  disturb  such 
judgment,  deprives  the  parties  of  the  benefits  thereof  and  restrains 
its  enforcement.  The  latter  power  has  been  exercised  by  courts  of 
equity  since  long  prior  to  the  foundation  of  our  government;  and 
has  never  been  deemed  an  exercise  of  appellate  power  over  courts  of 
law.  Hence  a  Federal  proceeding  in  equity  for  this  indirect  relief 
against  a  State  judgment  at  law,  or  even  a  State  decree  in  equitj', 
is  not  to  be  deemed  objectionable  because  an  exercise  of  an  appellate 
power. '^''^  It  is  true  that  anciently  there  was  no  occasion  for 
seeking  indirect  rather  than  direct  relief  against  a  decree  in  equity. 
Yet  if  a  party  chooses  relief  against  the  effect  of  a  State  decree  in 
equity,  rather  than  its  reformation  or  annulment,  and  can   show 

7Popke  V.  Cronan,  155  U.  S.  101,  39  sin  re  Huse,  79  Fed.  305,  25  C.  C. 
L.  ed.  84,  15  Sup.  Ct.  Rep.  34;  Ex  A.  1;  Hoadly  v.  Chase,  126  Fed.  818. 
parte  Strieker,  109  Fed.  145. 

159 


§    19   [a]  FEDERAL  JURISDICTION  IN  GENERAL.  [Code   FeiJ. 

sufficient  equitable  grounds  tiaerefor,  it  would  seem  permissible  tbat 
he  apply  to  the  Federal  court. "^"^^  Where,  however,  direct  relief  is 
sought  against  a  judgment  or  decree,  by  annulling,  vacating  or  sot- 
ting it  aside,  the  rule  is  otherwise.  Such  relief  is  properly  sought 
in  the  court  making  the  judgment  or  decree,  or  else  in  an  appellate 
court,  and  not  in  a  court  of  co-ordinate  jurisdiction.  A  proceeding 
therefore,  in  the  Federal  court  to  vacate  a  State  judgment  or  decree 
would  be  objectionable  because  an  exercise  of  appellate  power  and, 
where  relief  is  sought  for  newly  discovered  evidence  and  not  for 
fraud  or  want  of  jurisdiction,  would  be  further  objectionable  be- 
cause merely  ancillary  and  incidental.  The  only  present  modifica- 
tion of  this  general  rule  seems  to  be  that  a  statutory  proceeding  to 
vacate  a  judgment  for  fraud,  which  in  all  essentials  is  an  original 
inde];)endent  suit,  may  be  removed  to  the  Federal  court  for  trial. "^'^^ 
With  respect  to  the  power  of  State  courts  over  the  judgments  and 
decrees  of  Federal  courts,  it  is  clear  that  they  may  not  entertain  any 
proceeding  directly  attacking  them.  Such  proceedings  must  be  in 
the  Federal  court,  where  they  are  permitted,  as  ancillary,  and  re- 
gardless of  the  citizenship  of  the  parties.  It  is  not  so  clear  that 
they  would  be  competent  to  entertain  a  suit  in  equit}^  for  indirect 
relief  against  a  Federal  judgment  upon  equitable  grounds.'^®^ 
Author's  section. 

[a]     The  case  of  Barrow  v.  Hunton  considered. 

Portions  of  the  opinion  in  Barrow  v.  Hunton, 12  are  responsible  for  the 
unsatisfactory  condition  of  the  authorities  upon  this  subject.  The  cose 
held  that  a  statutory  proceeding  to  vacate  a  judgment  for  want  of  service 
was  not  removable  to  the  Federal  court.  It  was  concerned  therefore  with 
a  direct  attack  on  a  State  judgment.  A  distinction  was  there  drawn  be- 
tween an  attack  on  a  State  court's  judgment  by  supplementary  proceed- 
ing and  by  a  separate  suit.  A  supplementary  proceeding  to  set  aside  a 
judgment  for  irregularity  was  declared  to  be  ancillary  and  beyond  the 
Federal  court's  jurisdiction  on  removal.  "On  the  other  hand"  proceeded  the 
court,  "if  the  proceedings  are  tantamount  to  a  bill  in  ecjuity  to  set  aside 
a  decree  for  fraud  in  the  obtaining  thereof,  then  they  constitute  an  original 
and  independent  proceeding  and  according  to  the  doctrine  laid  down  in 
Gaines  v.  Fuentes,  92  U.  S.  10,  23  L.  ed.  524,  the  case  might  be  within  the 
cognizance  of  the  Federal  courts.  The  distinction  between  the  two  classes 
of  cases  may  be  somewhat  nice,  but  it  may  be  aflirmed  to  exist."  But 
Gaines  v.  Fuentes  was  a  case  seeking  relief,  indirectly  against  the  eU'eet 

iiPost.  §§  129,  et  seq. 
i2Barrow  v.  Hunton,  99  U.  S.  80, 
25  L.  cd.  407. 

160 


Procedure]    CONCURRENT    AND    CONFLICTING   JURISDICTION.        §   19   [b] 

of  a  State  probate  decree  and  sale;  and  the  distinction  between  the  two 
cases  was  not  only  that  between  an  original  and  a  supplementary  pro- 
ceeding, but  between  a  direct  and  an  indirect  attack  upon  a  State  decree. 
Other  cases  have  similarly  spoken  of  setting  aside  State  decrees  for 
fraud.13  But  the  more  carefully  considered  opinions,  including  one  by  the 
same  eminent  judge  in  a  later  case,  note  the  inaccuracy  of  this  expression 
and  declare  that  "the  court  does  not  act  as  a  court  of  review,  nor  does  it  in- 
quire into  any  irregularities  or  errors  of  proceeding  in  another  court;  but 
it  will  scrutinize  the  conduct  of  the  parties  and  if  it  finds  that  they 
have  been  guilty  of  fraud  in  obtaining  a  judgment  or  decree,  it  will  de- 
prive them  of  the  benefit  of  it,  and  of  any  inequitable  advantage  they  have 
derived  under  it."i4  ''While  there  are  general  expressions  in  some  cases 
apparently  asserting  a  contrary  doctrine,  the  later  decisions  of  this  court 
show  that  the  proper  circuit  court  of  the  United  States  may,  without  con- 
trolling, supervising,  or  annulling  the  proceedings  of  State  courts,  give  such 
relief  ...  as  is  consistent  with  the  principles  of  equity."i5  in  other 
cases  the  Supreme  Court  has  expressly  denied  the  power  of  the  circuit  court 
to  set  aside  State  court's  decrees  for  fraud. is  It  is  plain  therefore  that 
when  subsequent  cases  have  accepted  the  language  of  Barrow  v.  Hunton  as 
furnishing  a  test  of  their  power  to  vacate  or  relieve  against  State  judg- 
ments they  have  been  in  danger  of  error.i''  There  is  nothing  in  the  de- 
cision or  in  the  opinion  inconsistent  with  the  theory  that  the  Federal 
inferior  courts  cannot  under  any  circumstances  vacate  a  State  court's  judg- 
ment or  decree.  Yet  the  case  is  largely  responsible  for  the  later  decision 
that  a  State  statutory  proceeding  to  annul  a  State  court's  judgment  for 
fraud,  is  removable  to  the  Federal  court. is  it  would  seem  unsafe  to  de- 
clare that  the  doctrine  of  this  later  case  will  be  extended  so  as  to  sustain 
the  right  to  bring  such  a  proceeding  originally  in  the  circuit  court. 

[b]  Federal  court's  power  to  relieve  against  effect  of  State  court  judg- 
ments. 
Equity  has  long  possessed  the  power  to  relieve  against  the  effect  of  the 
judgments  of  other  courts,  upon  the  ground  of  fraud,  accident,  mistake  and 
the  like.  It  acts  upon  the  parties,  and  not  upon  the  court  rendering  the 
judgment  or  decree,  i  This  equitable  power  to  relieve  indirectly  against  the 
proceedings  of  other  courts  or  proceedings  upon  the  law  side  of  the  same 

i3See  Young  v.  Sigler,  48  Fed.  182;  vis  Co.  73  Fed.  11,  12;  Davenport  v. 

Wonderly  v.   Lafavette  Co.  150   Mo.  Moore.  74  Fed.  949;  Hunt  v.  Fisher. 

635,  73   Am.   St.   Rep.  474.  51   S.  W.  29    Fed.    801. 
750,  45  L.R.A.  391.  leRandaU  v.  Howard.  2  Black,  585. 

KJohnson   v.    Waters,    111    U.    S.  17  L.  cd.  269;   Nougue  v.  Clapp,  101 

G67,  28  L.  ed.   556,   4  Sup.   Ct.  Rep.  U.  S.  551,  25  L.  ed.  1026. 
619.  iTSee  Sahlgard  v.  Kennedv,  2  Fed. 

isArrowsmith   v.   Gloason,    129   U.  295,  1  INIeCrarv,  291. 
S.  99,  32  L.  ed.  635.  9  Sup.  Ct.  Rep.        isCowley  v. 'Northern  Pac.  Rv.  159 

241.     And  see:    Rhino  v.  Emerv,  72  U.  S.  569,  40  L.  ed.  263,  16  Sup.  Ct. 

Feu.  386,  18  C.  C.  A.  600;  De  Neuf-  Rep.  127. 

ville  V.  New  York,  etc.  Rv.  81   Fed.        i Johnson  v.  Waters,  111  U.  S.  667. 

13,  26  C.  C.  A.  306;   Carver  v.  Jar-  28  L.  ed.  556,  4  Sup.  Ct.  Rep.  619; 
Fed.  Proc— 11.                              161 


§   19   [b]  FEDERAL   JURISDICTION    IN    GENERAL.  [Code   Fed. 

court  pertains  to  the  Federal  circuit  court  sitting  in  equity,2  and  may  be 
exercised  as  respects  proceedings  and  judgments  of  State  courts  where  the 
jurisdictional  diverse  citizenship  and  value  in  dispute  exist;  and  notwith- 
standing the  fact  that  the  State  law  provides  a  statutory  mode  of  ob- 
taining relief  in  its  own  courts. 3  Hence  in  case  of  sales  imder  a  probate 
court's  decree  procured  and  effected  through  fraud,  the  Federal  court  may 
deprive  the  parties  of  the  benefit  of  such  sales  upon  an  original  bill  in 
equity  maintained  in  such  circuit  court. ^  Where  a  divorce  is  fraudulently 
procured,  the  Federal  court  may  relieve  against  the  effect  thereof  so  far  as 
property  rights  are  involved. 5  It  may  entertain  a  bill  to  set  aside  a  sale 
of  a  ward's  lands  fraudulently  procured  by  a  guardian  in  a  State  court; 6 
or  a  sale  for  taxes  irregularly  procured.'?  It  may  enjoin  enforcement  of 
a  State  court's  judgment  obtained  through  accident  or  fraud,  and  which  is 
therefore  inequitable; 8  or  enjoin  foreclosure  sale; 9  or  set  aside  a  partition 
sale  fraudulently  procured; lo  or  enjoin  or  set  aside  a  sheriff's  sale;ii  or 
a  sale  in  an  action  in  which  defendant's  appearance  was  fraudulently  en- 
tered.! 2  Where  a  Federal  court  of  equity  ordered  concelation  of  a  marriage 
contract  as  a  forgery,  and  the  State  court  in  a  suit  brought  after  the 
Federal  suit  but  proceeding  concurrently  therewith,  found  it  valid  and  de- 
creed divorce  and  alimony,  tlie  Federal  court  enjoined  the  parties  from  pro- 
ceeding to  enforce  the  State  judgment. is  AVhere  the  customary  or  statute 
law  of  a  State  permits  a  jjroceeding  essentially  equitable  in  nature  to 
cancel  a  will  and  limit  the  enforcement  of  a  decree  admitting  it  to  probate, 
such  proceeding  may  be  removed  to  the  local  Federal  court  which  may 
exercise  this  supervisory  equitable  power  equally  with  the  State  court.i* 
There  would  seem  to  be  no  objection  to  declaring  the  power  of  the  Federal 
courts  of  equity  as  large  as  that  exercised  by  State  tribunals  in  giving 
relief  indirectly  against  probate  or  other  State  proceedings.    But  equity  has 

Arrowsmith   v.    Gleason,    129    U.    S.  '^De  Forest  v.   Thompson,   40  Fed. 

98,  9  L.  ed.  237,  9  Sup.  Ct.  Rep.  240;  375. 

De  Neufville  v.  New  York.  etc.  R.  R.  sNational  S.  Co.  v.  State  Bank.  120 

SI    Fed.   13,  26   C.   C.   A.   306;   Hunt  Fed.  593,  56  C.  C.  A.  657.  61   L.R.A. 

V.   Fisher,  29   Fed.   801.  394;    StacKhouse   v.    Zunts,    15    Fed. 

2Se«   Platt  V.   Threa-dgill,   80   Fed.  482,     4     Woods,     171:     Marshall     v. 

195.  Holmes,    141    U.    S.    596,    35    L.    ed. 

sNoyes    v.   Willard.   1    Wood.    187,  870,  12  Sup.  Ct.  Rep.  62. 

Fed.  Cas.  No.  10,374;  National  S.  Co.  sOarver  v.   Jarvis   Co.   73   Fed.   9; 

V.  State  BanK  of  Humboldt.  120  Fed.  Salilgard   v.   Kennedv,   2   Fed.   297. 

593,  56  C.  C.  A.  657,  61  L.R.A.  394;  lOHatch  v.  Ferguson,  52  Fed.  833. 

Davenport  v.  Moore.   74   Fed.   945.  uMassie    v.    Buck,     128    Fed.    3i, 

4 Johnson  v.  Waters,  111  IT.  S.  640,  62  C.  C.  A.  535;  Davenport  v.  Moore, 

28  L.   ed.   547,  4  Sup.  Ct.  Rep.  619;  74  Fed.    945;    Northern   Pac.   Ry.   v. 

Rhino  V.  Emery,  72  Fed.   382.   18  C.  Kurtzmar,  82  Fed.  243. 

C.  A.  600.             '  i2Robb  v.  Vos,  155  U.  S.  38,  39  L. 

5Daniels  v.  Benedict,  50  Fed.  347.  ed.  61,  15  Sup.  Ct.  Rep.  13. 

And  see  McNeil  v.  McNeill,  78  Fed.  i3Sharon  v.  Terry,  36  Fed.  337,   1 

834,   holding   it   may   annul   a   State  L.R.A.  592,  13  Sawy.  429. 

divorce  decree.  1 4 Gaines  v.  Fuentes,  92  U.  S.  10,  23 

sArrowsmith  v.  Gleason,  129  U.  S.  L.  ed.  528. 
86,  32  L.  ed.  630,  9  Sup.  Ct.  Rep.  237. 

162 


Procedure]    CONCUKRBXT    AND    CONFLICTING   JURISDICTION.        §   19    [c] 

no  jurisdiction  to  set  aside  the  probate  of  a  will  on  the  ground  of  forgery. is 
The  Federal  court  will  not  interfere  where  the  matters  relied  upon  have; 
been  urged  upon  the  State  court  in  seeking  a  new  trial  there.ie  ^Vllere 
by  mistake  judgment  in  a  cause  is  entered  for  less  than  the  proper  amount 
and  it  is  too  late  to  obtain  relief  by  proceedings  in  that  cause,  a  bill  for 
relief  in  equity  is  maintainable  and  is  so  far  original  that  it  may  be  re- 
moved to  the  Federal  court,  i^  It  is  also  competent  for  the  Federal  court 
to  cancel  a  certificate  of  naturalization  fraudulently  procured  from  a  State 
court. 18  Where  a  State  court's  judgment  is  void  for  want  of  jurisdiction 
the  aggrieved  party  may  often  have  relief  without  suing  to  restrain  its 
enforcement,  as  a  Federal  court  will  refuse  to  recognize  it  either  at  law 
or  in  equity  in  any  proceeding  seeking  to  give  it  effect.  1 9 

[cj     Federal  relief  in  equity  against  State  equity  decree. 

A  few  decisions  of  the  Supreme  Court  in  which  parties  seeking  relief 
against  State  foreclosure  decrees  for  fraud  have  been  remitted  to  the 
State  courts,!  seem  to  suggest  that  the  Federal  courts  will  not  relieve 
against  State  decrees  in  equity  upon  the  ordinary  equitable  grounds,  as 
tliey  will  against  State  proceedings  at  law.  None  of  the  cases  however 
attempt  to  draw  this  distinction  in  terms.  There  are  doubtless  several 
equitable  grounds  apart  from  any  question  of  the  power  of  the  Federal 
court  for  a  refusal  in  most  cases  to  entertain  an  application  of  such  a 
complainant  in  another  tribunal.  There  is  a  probability  that  his  plea  of 
fraud  has  been  within  issues  already  disposed  of  by  the  court  of  original 
cognizance  and  perhaps  a  propriety  in  compelling  him  to  exhaust  his 
remedies  in  a  tribunal  equally  competent  to  afford  relief. 2  The  State  de- 
cree may  be  interlocutory  and  open  to  review  by  the  State  court  by  petition 
or  motion  in  the  cause. 3  The  nature  and  circumstances  of  the  equity  claimed 
may  be  such  that  the  relief  sought  is  purely  ancillary  and  a  supplemental 
bill  or  bill  of  review  for  newly  discovered  evidence  presented  to  the  State 
court  the  proper  and  only  remedy.*  These  cases  perhaps  illustrate  the 
necessity  for  proper  grounds  of  equitable  interference  by  and  relief  in 
another  court,  rather  than  a  want  of  power  in  the  circuit  court  to  relieve 
parties  from  a  decree  vitiated  by  fraud  or  invalid  for  want  of  jurisdiction. 5 

i5Case  of  Brodericks  Will,  21  Wall.  L.  ed.  196,  6  Sup.  Ct.  Rep.  1018.     See 

503,  22  L.  ed.  509.  also;    Furnald  v.  Glenn.  64   Fed.  54, 

ifiBailey  V.  Willeford,  126Fed.  807.  12  C.   C.  A.  27;    Foote  v.   Glenn,  52 

i"Pclzer  Mfg.  Co.  v.  Hamburg  Ins.  Fed.    5.30.     Contra,    see    Sahlgard    v. 

Co.  62  Fed.  2.  Kennedy  2  Fed.  295,  1  McCrary,  291. 

isUnited  States  v.  Norsch,  42  Fed.  2Xougue  v.   Clapp,   101   U.   S.   551, 

418;    United    States    v.    Gleason,    90  25  L.  ed.  1026;  Gmhani  v.  Boston,  etc. 

Fed.  778.  .33  C.  C.  A.  272.  R.  R.   118  U.   S.   178.  30  L.   ed.   196, 

isCooper  v.  Newell,  173  U.  S.  555,  6  Sup.  Ot.  Rep.   1018:   Pacific  R.   R. 

43  L.  eu.  808,  19  Sup.  Ct.  Rep.  506;  v.  Missouri  V.  R.  R.  Ill  U.  S  505,  28 

First  Nat.  Bank  v.  Cunningham,  48  L.  ed.  408,  4  Sup.   Ct.  Rep.  583. 

Fed.   510.  sGraham  v.  Boston,  etc.  R.  R.  118 

iRandall  v.  Howard,  2  Black.  585,  U.  S.   178,  30  L.  ed.   196,  6  Sup.  Ct. 

17  L.  ed.  269;  Nougue  v.  Clapp,  101  Rep.  1018. 

U.  S.  551,  25  L.  ed.  1026;  Graham  v.  ^Graver  v.   Faurot.  64  Fed.   241. 

Boston,  etc.  R.  R.  118  U.  S.  178,  30  5See  Carver  v.  Jarvis  Co.  73  Fed.  9. 

163 


§   19   [d]  FEDERAL  JURISDICTION  IN  GENERAL.  [Code   Fed. 

[d]  Federal  court's  power  to  vacate  or  annul  State  court  judgments. 
The  general  rule  is  that  a  Federal  court  cannot  annul  or  vacate  a  State 

court  judgment  for  fraud  or  otherwise,  since  the  inferior  Federal  courts 
have  no  appellate  jurisdiction  over  State  tribunals,  and  indeed  are  bound 
to  give  their  judgments  full  faith  and  credit. «  It  is  equally  improper  for 
tnem  to  set  aside  a  satisfaction  of  a  State  court's  judgment. 9  The  proper 
court  to  vacate  a  judgment  is  the  court  rendering  it,io  and  if  it  be  a 
Federal  decree  the  application  for  relief  is  maintainable  in  the  Federal 
court  as  ancillary  and  regardless  of  citizenship.n  In  a  few  cases,  seek- 
ing relief  against  State  judgments,  for  want  of  jurisdiction,  a  distinction 
is  drawn  between  a  latent  defect  and  a  want  of  jurisdiction  apparent  upon 
the  face  of  the  record.! 2  But  this  would  seem  to  have  reference  to  the 
propriety  and  necessity  for  interference  by  a  court  of  equity,  and  not  to 
the  question  of  the  power  of  a  Federal  court  over  a  State  court's  decree. 
In  one  case  at  circuit  the  right  to  maintain  a  bill  in  the  Federal  court 
to  annul  a  State  court's  divorce  decree  for  want  of  service,  was  recog- 
nized. 1 3 

The  law  of  many  States  now  provides  a  statutory  mode  for  vacating 
a  judgment  upon  application  to  the  court  rendering  the  same.  If  this 
statutory  proceeding  is  merely  a  supplemental  or  ancillary  application  in 
the  original  cause,  e.  g.,  a  motion  to  set  aside  a  default  judgment  for  want 
of  seiwice,  it  is  not  removable  to  the  Federal  court. i^  But  where  a 
statutory  application  to  vacate  a  judgment  for  fraud  virtually  constitutes 
an  original  proceeding,  the  Supreme  Court  has  held  that  it  may  be  re- 
moved to  the  Federal  court. ib 

[e]  State  courts'  power  to  relieve  against  Federal  judgments. 

It  belongs  to  the  Federal,   and  not  to  the   State  courts  to   revise  and 


sNougue  v.   Glapp.   101   U.   S.  551,  i2Little  Rock,  etc.  Ry.  v.  Burke,  G6 

25L.  ed.  1026;  Graham  v.  Boston,  etc.  Fed.   83,   13  C.  C.  A.  341;    Blythe  v. 

R.  R.   118   h.   S.  177,  30  L.   ed.   204,  Hinckley,  84  Fed.  246;  Bledsoe  v.  Er- 

6  Sup.  Ct.  Rep.  1018;  Hendrickson  v.  win,  33  La.  Ann.  617. 

Bradley,  85  Fed.  515,  29  C.  C.  A.  .S03;  isMcNeil  v.    McNeil,    78   Fed.    834. 

Amory   v.   Amory,   3  Biss.   266,   Fed.  The  Federal  court  may  undoubtedly 

Cas.  No.  334;    Barrow  v.  Hunton,  99  relieve  against  a  divorce  decree  upon 

U.  S.  80,  25  L.  ed.  407;  Robinson  v.  equitable  grounds,  so  far  as  respects 

Fair,  128  U.  S.  86,  87.  32  L.  ed.  415,  alimony,    Sharon   v.    Terry,    36    Fed. 

9  Suip.  Ct.  Rep.   30:    Elder  v.  Rich-  337,  1  L.R.A.  592,  13  Sawy.  429;   or 

mond  M.  Co.  58  Fed.  540,  7  C.  C.  A.  other  property  rights,  Daniels  v.  Ben- 

354.     But   see  ilcNeil  v.  McNeil,   78  edict.  50  Fed.  347. 

Fea.    834;    Sahlgard    v.    Kennedy,    2  i4Barrow  v.  Hunton,  99  U.  S.  80, 

Fed.  295.  25  L.   ed.  407 ;    Edwards  Mfg.  Co.  v. 

sLauderdale  Co.  v.  Foster,  23  Fed.  Sprague,  76  Me.  61;  Smith  v.  Schwed, 

516.  9  Fed.  483. 

loRandall  v.  Howard,  2  Black,  585,  loCowley    v.    Northern     P.    R.    R. 

17  L.  ed.   269;   Nogue  v.  Clapp,   101  159  U.  S.  579.  40  L.  ed.  266,  16  Sup. 

U.  S.  551,  25  L.  ed.  1026;  Amory  v.  Ct.   Rep.    129;    Graver   v.   Paurot,  76 

Amorv,  2  Biss.  266,  Fed.  Oas.  No.  334.  Fed.  257.  22  C.  C.  A.  156;  In  re  Iowa, 

See  Hendryx  v.  Perkins,  114  Fed.  801,  etc.    Co.    10    Fed.    402.     See    supra, 

52  C.  C.  A.  435.  note.M 

11  See  ante,  §  3. 

164 


Procedure]  INJUNCTION  AGAINST  STATE  PROCEEDINGS.  §   20   [a] 

correct  proceedings  of  inferior  Federal  courts. i  The  State  tribunals  have 
no  power  to  enjoin  proceedings  in  a  Federal  court. 2  An  aggrieved  party 
seeking  relief  directly  or  indirectly  against  a  Federal  judgment  or  decree 
should  apply  to  the  Federal  court,  which  will  entertain  his  application 
regardless  of  citizenship.  3  It  has  sometimes  been  declared  that  a  State 
court  of  equity  maj'  relieve  indirectly  and  upon  equitable  grounds  against 
the  enforcement  of  an  unconscionable  Federal  judgment  by  depriving 
parties  of  the  benefit  thereof,  just  as  the  Federal  courts  will  relieve 
against  a  State  judgment.!  But  it  is  not  altogether  clear  that  they  have 
this  power  and  the  reasoning  of  many  cases  is  against  it. 5  The  grant  of 
jurisdiction  for  diverse  citizenship  which  compels  the  Federal  court  to  as- 
sume the  power  to  relieve  against  State  judgments,  already  considered,  is 
wanting  in  the  case  of  the  State  courts.  And  while  they  may  refuse  to 
allow  a  plea  of  res  adjudicata  where  a  Federal  judgment  was  removed  with- 
out jurisdiction  and  to  that  extent  relieve  against  it,  it  would  seem  a  prop- 
er rule  of  comity,  even  if  no  more  fundamental  considerations  require  it, 
that  they  compel  one  seeking  relief  against  a  Federal  judgment  to  resort 
to  the  Federal  court. 

§  20.  — Federal  injunction  to  stay  proceedings  in  State  courts. 
The  writ  of  injunction  shall  not  be  granted  by  any  court  of  the 
United  States  to  stay  proceedings  in  any  court  of  a  State/^^""^^^ 
except  in  cases  where  such  injunction  may  be  authorized  by  any  law 
7'elating  to  proceedings  in  bankruptcy. "^^ 

Rev.  Stats.  §  720,  U.  S.  Comp.  Stats.  1901,  p.  581. 

[aj     Federal  injunction  against  State  court  proceedings. 

The  first  portion  of  the  foregoing  section  was  enacted  in  1793.  The 
exception  of  bankruptcj'  cases  was  added  upon  the  adoption  of  the  re- 
vised statutes  and  is  to  be  read  in  connection  with  §  11  of  the  banknipt 
act  of  1898.10  The  section  is  also  to  be  read  in  connection  with  R.  S. 
§  716,11  authorizing  the  Federal  courts  to  issue  all  v>-rits  necessary  to  the 
exercise  of  their  respective  jurisdictions;  and  in  connection  with  R.  S.  § 
646,12  as  to  injunctions  granted  before  removal  of  a  cause  from  a  State 
court.  But  it  is  not  affected  by  R.  S.  §  1979,  respecting  civil  rights. is 
Notwithstanding  the  clear  and  unequivocal  language  of  the  section  and 
the  frequency  with  which  its  mandate  has  been  reiterated  by  the  courts,i* 

lAbleman  v.  Booth.  21   How.  52G,  lOSee  post.   §   2201   et  seq. 

16  L.  ed.   169:   Semple  v.  Hagar.  27  nFisk  v.  Railwav  Co.  10  Blatchf. 

Cal.  170.  520.  Fed.  Cas.  No.  "4.830:   Sharon  v. 

2See  post,  §  21.  Terry,  36  Fed.  30(5.  1  L.R.A.  572,  13 

3See  ante,  §  3,  note.Fe]  Sawv.  429.     Sec  post,  §  841. 

^Ralston  v.   Sharon,    51    Fed.    707;  i2Perry     v.     Sharpc,     8     Fed.     24. 

Wonderlv  v.  Lafavette  Co.   150  Mo.  See   post,    §    1153. 

(•.53.   73   Am.  St.  Rep.  474,  51    S.  W.  isilemslev  v.   Mvers.  45   Fcl.   283. 

750.  45  L.R.A.  391.    See  Central  Nat.  i4Diggs  v.  Wolcott.  4  Cranch,  170, 

Bank  v.  Hazard,  49  Fed.  296.  2  L.  ed.  587:  Haines  v.  Carpenter.  91 

5See  post,  §  21.  U.  S.  257,  23  L.  ed.  345:  Dial  v.  Rey- 

165 


§  20  [a] 


FEDERAL   JURISDICTION    IN    GENERAL. 


[Code  Fed. 


the  task  of  reconciling  the  decided  cases  with  its  provisions,  involves  a 
resort  to  many  nice  distinctions,  and  a  recognition  of  the  fact  that  ju- 
dicial exposition  has  robbed  it  of  much  of  its  force.  Doubtless  one  of  the 
chief  purposes  of  its  enactment  was  to  forbid  an  exercise  of  supervisory  or 
appellate  power  over  State  court  proceedings  through  the  agency  of  the 
writ  of  injunction,  and  it  has  been  effective  to  that  end.  It  has  been  ef- 
fective in  preventing  injunction  directly  against  a  court,  and,  generally, 
against  its  officers.  In  cases  where  the  writ  issues  to  stay  State  court 
proceedings,  it  is  directed  to  the  parties  and  seeks  only  to  control  their 
acts,  although  it  is  conceded  in  other  cases  that  an  injunction  to  restrain 
jiroceedings  in  another  court  is  no  less  objectionable  because  directed  to 
the  parties,  and  not  to  the  court.is  It  has  been  effective  also  in  prevent- 
ing the  maintenance  of  Federal  suits  for  the  express  purpose  of  enjoining 
proceedings  begun  in  State  courts,  and  where  the  injunction  was  not 
merely  an  incident  to  other  relief  sought. is 

The  difficulty  with  giving  the  latitude  and  scope  to  the  operation  of  this 
section  warranted  by  its  language,  is  that  strong  equitable  reasons  often 
exist  for  protecting  rightful  Federal  jurisdiction  in  this  summary  way 
rather  than  by  the  tedious  and  circuitous  remedy  of  writ  of  error  to  the 
highest  State  court.i'^  The  use  of  injunction  for  the  purpose  of  rendering 
Federal  jurisdiction  effective,  often  prevents  the  enjoined  party  from  in- 
stituting vexatious  proceedings  in  the  State  tribunals. is  Equally  strong 
equitable  reasons  sometimes  exist  for  injunction  against  proceedings  which 
are  objectionable,  not  because  prosecuted  in  a  State  court  but  because  in 
a  court  of  law,  and  which  are  or  will  be  rendered  useless  or  vexatious  by 
the  decision  of  some  paramount  and  controlling  issue  in  the  court  of  chan- 
cery.1 9  Another  circumstance  which  has  contributed  to  the  creation  of 
precedents  antagonistic  to  the  mandate  of  R.  S.   §   720,  is  the  fact  that 


nolds,  96  U.  S.  340,  24  L.  ed.  644; 
Ex  parte  Schwab.  98  U.  S.  241,  2v) 
L.  ed.  105;  In  re  Sawver,  124  U.  S. 
219,  31  L.  ed.  402,  8  Sup.  Ct.  Rep. 
482;  Peck  v.  Jenness,  7  How.  625, 
12  L.  ed.  841 ;  Moran  v.  Sturges,  154 
U.  'S.  268.  38  L.  ed.  981,  14  Sup.  Ct. 
Rep.  1019;  United  States  v.  Park- 
hurst-Davis  Ck).  176  U.  S.  320.  44  L. 
ed.  486,  20  Sup.  Ct.  Rep.  423;  Dillon 
V.  Kansas,  C.  R.  R.  43  Fed.  Ill;  Mo- 
loney V.  Massachusetts,  etc.  Assn.  53 
Fed.  209;  Guaranty  T.  Co.  v.  North, 
etc.  R.  R.  130  Fed.  801,  65  C.  C.  A. 
65;  Securitv  T.  Co.  v.  Union  &  Co. 
134  Fed.   301. 

isPeck  v.  Jenness,  7  How.  625,  12 
L.  ed.  841  ;  Haines  v.  Carpenter.  91  U. 
8.  254.  23  L.  ed.  345;  Dial  v.  V.  i- 
olds,  96  U.  S.  340,  24  L.  ed.  644:  r.x 
parte  Chetwood.  I(i5  U.  S.  443,  41  L. 
ed.  782,  17  Sup.  Ct.  Pi«p.  385;  Yick 
Wo  V.  Crowley,  26  Fed.  207 ;  Coeur  D'- 


Alene  Ry.  v.  Spalding,  93  Fed.  280, 
35  C.  C.  A.  295;  Security  T.  Co.  v. 
Union  T.  Co.  134  Fed.  301.  The  Fed- 
eral Court  may  enjoin  trespass  not- 
withstanding proceedings  by  the  tres- 
passer in  the  State  court  to  condemn 
a  right  of  way:  Colorado,  etc.  Ry. 
V.   Chicago,  etc.   Ry.   141    Fed.   898. 

isGarner  v.  Second  Nat.  Bank,  67 
Fed.  833,  16  C.  C.  A.  86;  Central 
T.  Co.  V.  St.  Louis,  etc.  Ry.  59  Fed. 
385;  Terre  H.  R.  R.  v.  Peoria,  etc. 
R.  R.  82  Fed.  943;  Massie  v.  Buck. 
128  Fed.  31.  62  C.  C.  A.  535. 

IT  See  Julian  v.  Central  T.  Co.  193 
U.  S.  93,  48  L.  ed.  629,  24  Sup.  Ct. 
Rep.  399. 

isFisk  V.  Union  Pac.  Rv.  Co.  10 
Blatchf.  520.  Fed.  Cas.  ISSo.  4,830; 
Texas  &  P.  Ry.  v.  Kuteman,  54  Fed. 
551,  4  C.  C.  A.  503. 

i9See  for  example,  Hamilton  v. 
Walsh,  23  Fed.  420. 


166 


I'rocedure]  INJUNCTION  AGAINST  STATE  PROCEEDINGS.  §   20    [bl 

where  the  enjoined  proceeding  was  one  from  which  the  partj'  ought  prop- 
erly to  desist,  no  right  of  his  is  injured  by  the  court's  improper  issuance 
of  the  writ,  and  hence  no  wrong  done  for  which  relief  is  obtainable  on 
appeal.  The  injunction  stands  not  because  of  the  propriety  of  its  issuance, 
but  because  the  thing  it  commands  is  proper.  The  word  "proceedings" 
in  the  section  includes  all  steps  taken  in  a  suit  from  its  inception  to  final 
process. 2  0  Yet  i..  has  been  said  that  injunction  against  a  levy  by  a 
sheriff  upon  the  property  of  some  one  other  than  the  defendant  in  the 
writ  does  not  interfere  with  a  State  court  proceeding  but  merely  with  a 
trespass  by  an  officer  outside  the  scope  of  that  proceeding;!  although  State 
courts  have  declined  to  enjoin  levy  by  a  marshal  upon  exempt  property,  or 
the  property  of  a  third  person. 2 

It  has  been  decided  and  very  plausibly,  that  "proceedings"  refers  to 
such  as  are  existing  when  the  injunction  is  sought;  and  that  where  the 
injunction  merely  seeks  to  restrain  the  subsequent  bringing  of  an  ac- 
tion in  the  State  court,  it  is  not  deemed  to  be  within  the  prohibition  of 
R.  S.  §  720.3  The  further  holding  of  many  cases  that  the  section  only 
forbids  injunction  against  State  proceedings  commenced  prior  to  the  Fed- 
eral suit, 4  finds  less  support  in  the  wording  of  the  section  though  it  is  often 
strongly  justified  by  the  necessity  for  protecting  a  prior  and  exclusive 
Federal  jurisdiction.  5  Election  commissioners  are  not  a  State  court  with- 
in this  provision. 6  Any  process  or  order  though  not  strictly  an  injunction, 
regardless  of  its  form,  would  be  objectionable  if  its  office  was  to  stay 
State  court  proceedings. 7  But  a  sale  by  an  officer  under  a  chattel  mort- 
gage in  Vermont,  is  not  a  court  proceeding.^ 

[b]     Cases  where  injunction  refused. 

Under  this  section  Federal  courts  have  refused  to  enjoin  State  criminal 
proceedings; 9   or  proceedings  to  collect  back  taxes;  10   or  probate  proceed- 

2  0United     States     v.      Collins,     4  v.   Union   P.   R.   R.    10   Blatchf.   518, 

Blatchf.  142,  Fed.  Cas.  Xo.  14,834.  Fed.  Cas.  Xo.  4.830:   Lanning  v.  Os- 

iCropper   v.   Coburn,   2   Curt.   465,  borne,  79  Fed.  659. 
Fed.  axs.  No.  3.416;   Julian  v.   Ceu-        SBowdoin  Coll.  v.  Merritt,  59  Fed. 

tral  T.  Co.   115  Fed.  962,  963,  53  C.  6;  In  re  Whitelaw,  71  Fed.  733;  Ham- 

C.   A.    438.     Contra,    see    Watson   v.  iltony.  Walsh,  23  Fed.  420;  Whitney 

Bondurant,   2  Woods   160,   Fed.   Cas.  ^'-   ^^^l*^^""'   ^^   ^'"^-   ^5^'   ^  ^-   ^-  ^^ 

No.  17,278;  Perrv  v.  Sharpe,  8  Fed.  ^^%  .  .,,  , ,  , ._  ^  ,  ^_.  ,„  ., 
00      -n^i^          cu  \.;ff     1    wT^r^A.     ^■^K         ^Busch  v.  Webb,  122  Fed.  65d;  Well 

f'',   n    ^XT      f..^    '  '  '  ^'-  Calhoun,  25  Fed.  865. 

,„       ;        --X     ;  n       .      T.     1  "ExparteSchulenberg,25Fed.  211, 

2Prugh   v.   Portsmouth,   etc.   Bank,  .^j^  "^ 

48  Neb.  418,  67  N.  W.  311;   Chapin  "  .Carpenter  v.  Talbot,  33  Fed.  539. 

V.  James,  11   R.   I.   86,  23  Am.   Rep.  i^Harkrader  v.   Wadlev,    172    U.   S. 

"^1--  148,  43  L.  ed.  399,   19   jiup.  Ct.  Rep. 

^Transportation     Co.    v.     Parkers-  126;   Fitts  v.  McOliee,  172  U.  S.  531, 

burg,   107    U.    S.   695,   27  L.  ed.   584,  43  L.  ed.  535,  19  Sup.  Ct.  Rep.  269; 

2  Sup.  «.t.  Rep.  732;   Glucose  R.  Co.  Yick   Wo    v.   Crowley,   26   Fed.   207; 

V.  Chicago,  138  Fed.  209;  Palatka  W.  Suess    v.    Noble,    31*  Fed.    855.     See 

Wks.  v.  Palatka,  127  Fed.  163.     See  Louisiana   Lottery   v.    Frtzpatrick,   3 

Statelor  v.  California  Nat.  Bank,  77  Woods,   222,   Fed.   Cas.   No.   8.541. 

1">J-  43.  lOAultman   v.  Brumfield,   102   Fed. 

4Hale  V.  Bugg,   82   Fed.  36;    Fisk,  7;  Douglas  Co.  v.  Stone,  110  Fed.  812. 

167 


S  20  [c] 


FEDERAL  JURISDICTION  IN  GENERAL. 


[Code   I'ed. 


ingsjii  or  attacluucnt  proceedings  upon  a  Federal  bill  of  interpleader;  12 
or  to  enjoin  the  prosecution  of  a  suit  in  a  State  court  whose  jurisdiction 
was  prior  to  that  of  the  Federal  court;  13  or  which  has  already  made  a 
decree;  1*  or  to  enjoin  execution  sale  by  a  sheriff  of  property  rightfully  in 
his  possession;  15  or  of  property  claimed  by  a  third  person; is  or  of  prop- 
erty sold  by  a  bankrupt  ;i"  or  to  enjoin  a  bankrupt  assignee  from  paying 
a  dividend  imder  a  garnishment  against  a  creditor  of  the  bankrupt.! s 
They  have  refused  to  enjoin  a  State  court  from  satisfying  judgments 
prior  to  bankruptcy,  out  of  proceeds  of  execution  sale;i9  to  enjoin  State 
court  suit  against  a  marshal  for  wrongful  levy; 20  to  enjoin  State  pro- 
ceedings not  really  conflicting  with  a  prior  Federal  custody;  21  to  enjoin 
suits  brought  against  Indians  in  the  State  courts ;i  to  enjoin  ejectment 
proceedings  in  a  State  court; 2  or  entry  on  land  pending  condemnation 
proceedings  in  a  State  court ;3  or  a  proceeding  under  a  law  claimed  to  be 
invalid;*  to  issue  an  injunction  which  would  have  the  effect  of  settling 
a  title  in  litigation  between  the  parties  in  an  equitable  State  action; 5 
to  enjoin  the  proceedings  in  a  State  court  to  enforce  a  State  court's  judg- 
ment ;•>  or  restrain  a  State  garnishment  proceeding  served  on  a  party 
while  a  witness  before  a  Federal  court." 

[c]     Injunction  to  protect  lawful  exercise  of  Federal  jurisdiction. 

As  already  stated,  R.  S.  §  720,  must  be  construed  in  connection  with 
R.  S.  §  716,10  empowering  Federal  courts  to  issue  all  writs  necessary  to 
the  exercise  of  their  jurisdiction.!  1  Most  of  the  cases  where  injunction 
has  issued  notwithstanding  this  section,  are  those  where  it  was  expressly  or 
impliedly  authorized  by  Congress  as  necessary  to  the  effectual  exercise 
of  lawful  jurisdiction;  12   or  a  mere  incident  to  a  cause  seeking  other  re- 


11  Hall  V.  Bridgeport  T.  Co.  123  Fed. 
739;  Whitney  v.  Wilder,  54  Fed.  554, 
4  C.  C.  A.  510. 

i2McWhirter  v.  Halstead,  24  Fed. 
828. 

isHale  V.  Bugg,  82  Fed.  36;  Hamil- 
ton V.  Walsh,  23  Fed.  420.  See  infra, 
note.[c] 

KChaffin  V.  St.  Louis,  4  Dill,  23, 
Fed.  Cas.  No.  2,572. 

isRuggles  V.  Simonton,  3  Biss.  329, 
Fed.  Cas.  No.  12,120. 

16 Watson  V.  Bondurant,  2  Woods, 
175,  Fed.  Cas.  No.  17,278;  Perry  v. 
Sharpe,  8  Fed.  23;  American  Ass'n. 
V.  Hurst,  59  Fed.  I,  7  C.  C.  A.  598. 

1" Sargent  v.  Helton,  115  U.  S.  348, 
29  L.  ed.  412,  6  Sup.  Ct.  Rep.  78. 

isGilbert  v.  Lynch,  1  Fed.  114,  17 
Blatchf.  402. 

inCampbell's  Case,  1  Abb.  U.  S.  189, 
Fed.  Cas.  No.  2,349. 

2  0FA'ans  v.  Pack,  2  Flipp.  274,  Fed. 
Cas.  No.  4,566. 


2iGuaranty  T.  Co.  v.  North,  etc. 
R.   R.   130   Fed.  801,  65  C.  C.  A.  65. 

1  United  States  v.  Parkhurst-Davis 
Co.  176  U.  S.  320,  44  L.  ed.  486,  20 
Sup.  Ct.  Rep.  423. 

2Dial  v.  Reynolds,  96  U.  S.  340, 
24  L.  ed.  644. 

sDillon  V.  Kansas  City  R.  R.  43  Fed. 
109. 

4Rennselaer,  etc.  R.  R.  v.  Benning- 
ton, etc.  R.  R.  18  Fed.  618. 

5  Or  ton  V.  Smith,  18  How.  263,  15 
L.  ed.  393. 

6Louisville  &  Co.  v.  Cincinnati,  73 
Fed.  716. 

'i'Ex  parte,  Schulenberg,  25  Fed. 
211. 

loSee  post,  §  841. 

iiFisk  V.  Railway  Co.  10  Blatchf. 
520,  Fed.  Cas.  No.  4.830;  Sharon  v. 
Terry,  36  Fed.  366.  1  L.R.A.  572,  13 
Sawy.   429. 

12'Moran  v.  Sturges.  154  U.  S.  270, 
38  L.  ed.  981,  14  Sup.  Ct.  Rep.  1019; 


168 


i-rocedure]  INJUNCTION  AGAINST  STATE  PROCEEDINGS  ^   20   |.e] 

lief  and  necessary  to  protect  the  court's  jurisdiction  or  enforce  its  de- 
crees.is  Thus  the  law  limiting  liability  of  ships  impliedly  authorizes 
injunction  against  damage  suits  in  other  courts  after  proceedings  for  lim- 
iting liability  have  been  instituted,  i*  After  removal  of  a  case  from  a 
State  court  injunction  is  often  deemed  justifiable  to  prevent  a  continuance 
of  the  litigation  in  the  State  tribunal.  1 5  So  where  a  Federal  court  by 
priority  or  possession  of  the  res  in  controversy,  has  acquired  exclusive  pow- 
er to  proceed,  it  will  restrain  the  parties  from  proceedings  in  the  State 
court. 16  If  the  State  court  has  priority,  under  principles  elsewhere  con- 
sidered,i7  it  will  refuse  to  issue  injunctionis  and  much  more  will  it  re- 
fuse if  the  State  court  has  already  made  a  decree. 1 9  If  neither  has  ac- 
quired exclusive  jurisdiction,  and  both  suits  may  proceed  concurrently  with- 
out conflict,  injunction  will  be  refused.  20  If  the  Federal  court  did  not 
have  power  to  protect  this  prior  jurisdiction  vexatious  proceedings  might 
be  maintained  in  the  State  tribunals. 21  But  while  the  Federal  courts 
may  thus  protect  their  jurisdiction  and  their  decrees  they  may  not  en- 
join State  proceedings  upon  the  theory  that  their  own  decision  concludes 
the  issues  therein  as  res  adjudicata;i  though  it  is  held  that  a  Federal 
court  pending  an  appeal  from  its  decision  may  restrain  a  suitor  before  it, 
over  whom  it  has  jurisdiction  from  vexatiously  bringing  another  suit  for 
the  same  cause  in  another  State. 2 

Stewart  v.  Wisconsin  C.  Ry.  117  Fed.  387,    43    C.    C.    A.    GOO;     State    T. 

782.  Co.  v.  Kansas  City  K.  R.  110  Fed.  10; 

i3Garner  v.  Bank,  67  Fed.  836,  16  Union,  etc.  Co.  v.  Riggs,  123  Fed.  312. 

C.  C.  A.  86;    ierre  Haute,  etc.  R.  R.  But   see  Guarantv  T.    Co.  v.   North. 

V.   Peoria,    etc.    R.   R.   82    Fed.    943;  etc.  R.  R.  1.30  Fed.  801,  65  C.  C.  A. 

Massie  v.  Buck,  128  Fed.  31,  62  C.  C.  65. 

A.  535;  Chicago,  etc.  R.  R.  v.  St.  Jos-        iTgee  ante    S  16 

eph,  etc.  Co.  92  Fed.  25.  ,  o^m-  't.     i-        i.     /-.     mr  t.  j 

^4Providence.  etc.  Co.  v.  Hill  Mfg.  .^'^l^^'^'"  ""■  ^t  Inn     t^  r 

Co.  109  U.   S.   578.  27  L.  ed.  1038,  3  ^'^'  4a  C.  a  A.  200:    E^^ns  v.  Gor- 

Sup.    Ct.   Rep.    379;    The    Tolchester,  J"'^"-     ^^^     ^ed.     399;     Hamilton     v. 

42  Fed.  184;  In  re  Whitelaw,  71  Fed.  ^^  alsh,  23  Fed.  420;   Gates  v.  Bucki, 

735.  53  Fed.  969,  4  C.  C.  A.  116;  Chicago, 

i^See    infra,    note.td]  T.  Co.  v.  Bentz,  59  Fed.  647:   Whit- 

is.Iulian  v.  Central  T.  Co.   193  U.  ney  v.  Wilder,  54  Fed.   554.  4  C.   C. 

S.  93,  48  L.  ed.  629,  24  Sup.  Ct.  Rep.  A.  510.     Sec  Orton  v.  Smith,  18  How. 

399;    Mercantile   T.    Co.   v.   Roanoke,  263,  15  L.  ed.  393. 

etc.  Ry.   109  Fed.  3;   Central  T.  Co.        laChafiin  v.   St.  Louis,  4  Dill.   23, 

V.  Western  N.  C.  R.  R.  112  Fed.  471;  Fed.  Cas.  No.   2,572. 

Fisk    v.    Railroad.    10    Blatchf.    520.        20Benjamin  v.  Brooklyn,  U.  E.  R. 

Fed.  Cas^  No.  4,830;   Lanning  y.  us-  r.   12O  Fed.  428;   Copeland  v.  Brun- 

borne,    79    Fed     6.37;    Missouri     etc.  j         127   ^^^    550    03  c.   c.   A.  435. 

R.  R.  V.  Scott,  13  Fed.   /9o,  4  ^^  oods,        tn-  i  t-   •        t.        ti       /-.       ir> 

386;  Terre  Haute,  etc.  R.  R.V.Peoria,  ,,,     ^'f  J,"^  ^"'7   ?'•   ^^    X,l 

etc.  R.R.  82  Fed.  943;  Hutchinson  V.  Bl^tcht.    520,    Fed.    Cas.    No.    4.8.W; 

Green,  6  Fed.  838,  2  iMcCrarv,  471 ;  ^^^^^  ^  ^-  ^y-  ^'-  I^ut«man,  54  Fed. 

Fidelity,  etc.  Co.  v.  Norfolk,  etc.  Co.  ^51,  4  C.  C.  A.  503. 

88  Fed.  815;  Iron  M.  R.  R.  v.  Mem-        iChicago,  etc.  R.  R.  v.  St.  .Joseph, 

phi.s,  96  Fed.   113,   37   C.   C.  A.  410:  etc.  Co.  92  Fed.  25,  26. 

Starr    v.    Cliicago,    etc.    R.    R.    110        2Cochran   v.  Childs,   111   Fed.  433, 

Fed.    3;    Pitt   V.    Rodgers,    104    Fed.  49  C.  C.  A.  421. 

169 


S   -U   LtiJ  I'EJJEUAL  JUKlSDlCXlOiS'  IN   GENERAL.  [Code  Fed. 

[dj     Federal  injunction  against  State  court  proceedings  after  removal. 

The  removal  laws  expressly  provide  that  an  injunction  granted  by  a 
State  court  prior  to  removal  may  be  continued  by  the  Federal  court.s  A 
number  of  cases  have  affirmed  the  power  of  the  Federal  courts  to  protect 
the  jurisdiction  acquired  by  removal  from  subsequent  interference,  or 
])roceedings  in  the  State  court,  upon  the  ground  that  the  relief  is  merely 
ancillary  to  a  jurisdiction,  lawfully  acquired  and  necessary  to  give  elfect 
to  its  own  judgment. 6  Hence,  if  a  party  is  suing  in  another  State  upon 
a  judgment  which  the  Federal  court  has  set  aside  after  removal,  itijuiic- 
lion  may  issue  to  restrain  him. 7  Suit  on  a  replevin  bond  in  a  State 
court  may  be  restrained  where  the  judgment  went  for  plaintiff  in  the 
Federal  court  after  removal  of  the  replevin  suits,  the  State  court  having 
wrongfully  disregarded  the  removal  and  proceeded  to  judgment  for  de- 
fendant. 8  But  injunction  has  been  refused  where  no  right  to  remove  in 
fact  existed;  9  or  where  the  removal  was  not  perfected;  lo  or  the  right 
not  clear;  11  or  the  proceeding  sought  to  be  removed  merely  ancillary;  12 
or  where  the  removed  cause  was  dismissed  and  a  second  State  action  in- 
stituted for  an  amount  smaller  than  that  required  by  the  removal 
laws.13 

[ej  Federal  injunction  upon  ordinary  equitable  grounds  against  State 
court  proceedings. 
Equity  has  long  exercised  a  right  to  enjoin  proceedings  at  law;  and, 
where  the  parties  are  within  its  jurisdiction,  will  even  enjoin  actions  by 
them  in  other  States. ig  It  would  seem  that  the  Federal  court  sitting 
in  equity,  possesses  this  power;  i^  though  it  should  not  be  exercised  as 
against  a  court  of  competent  jurisdiction  having  power  to  decide  all  ques- 
tions that  may  arise  and  to  entertain  and  give  full  weight  to  the  equitable 
defense;  18  nor  where  there  exists  a  full  and  adequate  defense  available 
in  the  legal  action. 1 9  Such  a  proceeding  in  equity  may  be  brought  before 
or  during  a  suit  at  law,  or  after  its  decision,  and  is  a  separate  action  in- 

5See  post,  §  1153;  Perry  v.  Sharpe,    Frishman   v.    Insurance    Co.   41    Fed. 
8   Fed.   24;    Hunt   v.   Fisher,  29   Fed.    449. 
SOI.  i2Mutual     Res.     F.     L.     Assn.     v. 

6French  v.   Hay,  22  Wall.   250,   22    Phelps,  190  U.  S.  147,  47  L.  ed.  9S7, 
L.  ed.  857;  Wagner  v.  Drake,  31  Fed.    23  Sun.  Ct.  Rep.  707. 
849;    Baltimore,   etc.   R.   R.   v.    Ford.        isTexas,    etc.    Ck).   v.    Starnes,    128 
35  Fed.   173;   Abeel  v.  Culberson.  56    Fed.   183. 

Fed.  333;  President,  etc.  v.  Menitt,  isSee  Cole  v.  Cimningham,  133  U. 
59  Fed.  7;  Banning  v.  Osborne,  79  S.  107,  10  Sup.  Ct.  Rep.  2G9.  33  L. 
Fed.  662.  ed.  539;   Allen  v.  Buchanan,  97  Ala.. 

^French  v.  Hay,  22   Wall.  250,  22    403,    38    Am.    St.    Rep.    191,    11    Su. 
L.  ed.  857.  778;    uage    v.    Riverside    T.    Co.    S'i 

sDietzsch  v.  Huidekoper,  103  U.  S.    Fed.   998;    French   v.   Hav,   22   Wall. 
494,  26  L.  ed.  354.  250,  22  L.  ed.  857 ;  Pickatt  v.  Fevgu- 

sBertha,  etc.  Co.  v.  Oarico,  61  Fed.    son.  45  Ark.  189,  55  Am.  Rep.  549. 
132.  iTFisher  v.  Lord,  6  West.  L.  J.  137, 

loCeonr   D'Alene  Ry.   v.   Spalding,    Fed.  Cas.  No.  4,821. 
93   Fed.   280,  35  C.   C.   A.  295.  is^Vilson    v.    Lambert,    168    U.    S. 

iiRailroad    Co.    v.    Scott,    13    Fed.    618,  42  L.  ed.  599,  18  Sup.  Ct.  Rep.  217. 
793;    Wagner  v.  Drake,  31  Fed.  849;        isDeweese  v.  Reinhard.   165  U.   S. 

170 


I 


Procedure]         INJUNCTION  AGAINST  STATE  PROCEEDINGS.  §  20   [e] 

stituted  by  the  filing  of  an  original  bill. 20  The  Federal  court  in  equity 
has  thus  interfered  in  several  recent  cases  to  enjoin  actions  at  law  in  both 
State  and  Federal  courts  on  insurance  policies,  pending  the  determination 
of  a  bill  in  equity  for  cancellation  for  fraud.  1  The  State  courts  have 
similarly  enjoined  Federal  actions  at  law. 2  Injunction  against  threatened 
State  proceedings  may  sometimes  issue  to  prevent  a  multiplicity  of  suits, 3 
though  this  ground  of  equitable  interference  has  been  deemed  insufficient 
to  take  the  case  out  of  the  terms  of  R.  S.  §  720,  where  the  State  court 
.suits  were  already  pending.'*  So  also  because  of  the  inadequacy  of  legal 
remedy  or  to  prevent  multiplicity  of  suits,  injunction  is  often  granted  to 
restrain  the  enforcement  of  invalid  laws  or  ordinances  or  unjust  schedules 
of  water,  gas  or  railroad  rates  and  in  like  cases.  If  the  proper  equitable 
grounds  of  interference  exist  it  would  seem  to  be  no  objection  to  the  re- 
lief that  the  institution  of  proceedings  in  the  State  courts  is  prevented 
l)y  the  Federal  writs  or  even  that  existing  proceedings  are  stayed; 6  so 
long  as  the  suit  is  not  in  effect  one  against  the  State  itself,  prohibited 
by  the  Eleventh  Amendment. 7  After  judgment  has  been  obtained  in  a 
.State  court,  the  Federal  court  may,  as  is  elsewhere  shown, s  relieve  against 
the  effect  thereof  for  fraud,  accident  or  mistake,  or  upon  other  equitable 
grounds.  It  m.ay  be  necessary  to  effective  relief  that  proceedings  to  en- 
force such  judgments  be  stayed  and  injunction  has  issued  as  an  incident 
to  the  relief  in  such  cases. 9  Some  of  these  were  cases  removed  from  the 
State  courts. 10 


389,  41   L.  ed.  757,  17   Sup.  Ct.  Rep.  No.  8.541;  Gunter  v.  Atlantic,  etc.  R. 

MO;    Freeman    v.    Timanns,    12    Fla.  R.   200  U.   S.   273.  50  L.   ed.   477.  20 

410.  Sup.  Ct.  Rep.  252. 

2  0Parker  V.  Judges,  12  Wheat.  5G4,        eTuchman  v.  Welch,  42  Fed.  553; 

6  L.  ed.  729.  Iron  M.  R.  R.  v.  ilemphis.   96   Fed. 

iHome  Ins.  Co.  v.   \  irginia,  C.  Co.  113,  37  C.  C.  A.  410.     But  see  Renss- 

109  Fed.  681,  113  Fed.  1,  51  C.  C.  A.  elaer,  etc.  R.   R.  v.  Bennington,  etc. 

22;      Rochester,     etc.     Ins.     Co.     v.  R.  R.   18  Fed.  618. 
Schmidt,   126   Fed.   998.     See  Hamil-        nn  re  Avers,  123  U.  S.  443,  31  L. 

ton    V.    Walsh,    23    Fed.    420.  ed.   216.  8  Sup.   Ct.  Rep.   164;    Fitts 

2 See   Insurance   Co.   v.   Howell   24  v.  McGhee,  172  U.  S.   529,  45  L.  ed. 

N.    J.    Eq.    238— quoted    approvingly  535,  19  Sup.  Ct.  Rep.  209. 
in  Moran  v.   Sturges,  154  U.   S.  256,        sSee  ante,  §  19.[b] 
38  L.  ed.  981,  14  Sup..  Ct.  Rep.  1023.        sStackhouse  v.  Zunts,  15  Fed.  481, 

sTexas   &  P.   Ry.   v.  Kuteman,   54  4  Woods,  171 ;  Sahlgard  v.  Kennedy, 

Fed.   547,  4  C.  C.  A.  503.  2    Fed.    295,    1    McCrary,    291;    Car- 

4Haines  v.  Carpenter,  91  U.  S.  254,  ver  v.  Jarvis  Co.  73  Fed.  9:   North- 

23  L.  ed.  345.  ern  P.  Ry.  v.  Kurtzman,  82  Fed.  241; 

5See  Transportation  Co.  v.  Parkers-  Nation:/,"  S.  Co.   v.  State   Bank,   120 

burg,    107    U.   S.   695,  27    L.    ed.    584,  Fed.  593,  56  C.  C.   A.  657,  61   L.R.A. 

2  Sup.  Ct.  Rep.  732;  Allen  v.   Balti-  394;    ^Marshall   v.  Holmes,    141    U.   S. 

more,   etc.   R.   R.    114   U.   S.   316.   29  596,  35  L.  ed.  870,  12  Sup.  Ct.  Rep.  62; 

L.  ed.  201.  5  Sup.  Ct.  Rep.  927;   Wil-  Lehman   v.   Graham,   135  Fed.  39,  67 

son  V.  Lambert,  168  U.  S.  618,  42  L.  C.   C.  A.  513. 

("d.  599,  18  Sup.  Ct.  Rep.  217;  Palatka        lOMarshall    v.    Holmes,    141    U.    S. 

W.  Works  V.  Palatka,  127  Fea.  163 ;  596,  35  L.  ed.  870,  12  Sup.  Ct.  Rep. 

Moore   v.   Holliday,   4   Dill.   52,    Fed.  62;  Stackhouse  v.  Zunts,  15  Fed.  481, 

Cas.  No.  9,765;  Louisiitima  S.  Lotterv  4  Woods.   171;    Carver  v.  Jarvis  Co. 

v.  Fitznatrick,  3  Woods,  222,  Fed.  Cas.  73  Fed.  9. 

171 


§   21   [a]  FEDERAL  JURISDICTION  IN  GENERAL,  [Code  Fed. 

ff]     Injunction  in  bankruptcy  cases. 

The  proviso  authorizing  injunction  against  State  court  proceedings  in 
bankruptcy  cases  Avas  added  upon  the  adoption  of  the  Revised  Statutes, 
aj)pt«ently  in  deference  to  prior  decisions  of  the  courts  affirming  the 
necessity  and  the  existence  of  such  power  in  courts  of  bankruptcy. 12 
Under  former  bankrupt  law^s  many  cases  arose  involving  applications  for 
injunction  against  State  court  proceedings  some  of  which  were  allowed 
and  some  refused. is  The  present  bankrupt  law  equally  requires  the  use 
of  injunction  to  protect  the  paramount  powers  of  a  court  of  bankruptcy 
in  its  possession  and  administration  of  the  bankrupt  estate.i^  Section  11 
authorizes  its  issuance  to  stay  proceedings  under  certain  circumstances.is 

§  21.  — State  writ  to  restrain  or  control  Federal  proceeding's. 

The  State  courts  have  no  appellate  power  over  Federal  courts ; 
nor  is  it  competent  for  them  to  restrain  or  impair  in  any  way  the 
jurisdiction  conferred  by  the  Constitution  upon  the  Federal  trib- 
unals.^ They  may  not  release  a  Federal  prisoner  on  habeas  corpus.- 
They  may  not  issue  mandamus  to  an  officer  of  the  United  States; 
and  are  as  much  restrained  from  using  injunction  to  supervise  the 
acts  or  proceedings  of  the  Federal  courts,  as  are  the  latter  by  the 
provisions  of  R.  S.  §  720,^  from  issuing  injunction  against  State 
court  proceedings. 1^^^ 
Author's  section. 

[a]     Power  of  State  court  to  enjoin  proceedings  in  Federal  Court. 

State  and  Federal  courts  are  independent  of  one  another  and  within 
their  respective  spheres  of  action,  it  is  said,  the  process  issued  by  one  is 

i2See   Ex    parte   Christv,   3    How.  115  U.  S.  350,  29  L.  ed.  413.  6  Sup. 

292.  318;   11  L.  ed.  003.  Ct.   Rep.    80:    In    re   Davis,   1    Sawy. 

isChapman   v.    Brewer,    114   U.    S.  260,  Fed.  Cas.  No.  3,620;   In  re  Mal- 

158,  29  L.  ed.  83,  5  Sup.  Ct.  Rep.  799;  lory,  I  Sawy.  88,  Fed.  Cas.  No.  8,991 ; 

Irving  V. Hughes, 7  Am.  Law  Reg.  209,  In  re  Ladv  Bryan  Co.  6  N.  B.  R.  252, 

Fed.  Cas.  No.  7.076;    In  re  Schnepf,  Fed.   Cas.' No.   7,980;    In  re  Clark,  9 

2  Ben.  72,  Fed.  Cas.  No.  12,471;  In  re  Blatchf.    372,    Fed.    Cas.    No.    2,801: 

Bernstein,  2   Ben.   44,  Fed.  Cas.   No.  Markson  v.  Haney,  1  Dill.  497,  Fed. 

1,350;    Pennington    v.    Lowenstein.  1  Cas.    No.    9,098:    In    re   Atkinson,    3 

N.  B.  R.  570,  Fed.  Cas.  No.  10,938;  Pittsb.  Rep.  423,  Fed.  Cas.  No.  600; 

In  re  Bowie,   1   Am.   L.   1.  Rep.   97,  In  re  Ulrich,  6   Ben.  483,   Fed.   Cas. 

Fed.  Cas.  No.  1,728;  Jones  v.  Leach,  No.  14,328;  In  re  Dillard,  2  Hughes, 

1  N.  B.  R.  595,  Fed.  Cas.  No.  7,475;  190.  Fed.  Cas.  No.  3,912;   Hudson  v. 

In  re  Wallace,  Deady,  433,  Fed.  Cas.  Schwab,  18  N.  B.  R.  480,  Fed.  Cas. 

No.  17,094;  In  re  Kerosene  Oil  Co.  3  No.  6,835,  and  cases  cited. 

Ben.  35,  Fed.   Cas.  No.  7.725;   In  re  i^Lea  v.  Geo.  West  Co.  91  Fed.  237; 

Fuller,    1    Sawy.   243.   Fed.   Cas.    No.  In  re  Pittelkow,  92  Fed.  903. 

5,148;   In  re  Campbell.   1  Abb.  U.  S.  isSee  post,  §  2201. 

185.   Fed.   Cas.   No.   2,349;    Ex   parte  iSee  ante,  §  5. 

Schwab,  98  U.  S.  240,  25  L.  ed.  105;  2See  ante.  §  18.[b) 

In   re   Burns.    1    N.  B.   R.   174;    Fed.  3Ante,  §  20. 
Cas.    No.    2,182;    Sargent   v.   Helton, 

172 


Procedure]    STATE   RESTRAINT   ON    FEDERAL  PROCEEDINGS.        §   21   [a] 

as  far  beyond  the  reach  of  the  other  as  if  the  line  of  division  between 
them  was  traced  by  landmarks  and  monuments  visible  to  the  eye.* 
State  courts  have  no  appellate  power  over  the  Federal  tribunals.  It  be- 
longs to  the  Federal  courts  and  not  to  State  tribunals  to  revise  and  cor- 
rect proceedings  of  inferior  Federal  courts.5  It  was  early  decided  that 
a  state  court  has  no  jurisdiction  to  issue  a  writ  of  mandamus  to  a  Federal 
officers  and  that  it  has  no  power  to  stay  execution  or  otherwise  enjoin 
proceedings  upon  a  Federal  judgment;"  or  interfere  with  the  enforcement 
bf  a  Federal  decree.^  The  proper  mode  of  relief  against  a  Federal  judg- 
ment is  by  ancillary  application  upon  the  equitj^  side  of  the  Federal  court 
rendering  the  same.9  It  is  also  an  established  rule  that  State  courts  have 
no  power  to  enjoin  proceedings  in  a  Federal  court,  before  judgment  any 
more  than  proceedings  thereafter,  lo  If  Federal  court  by  mandamus  has 
ordered  performance  of  an  act,  injunction  from  a  State  court  forbidding  it 
is  inoperative  and  no  excuse  for  non-performance;  n  nor  is  the  fact  that 
the  State  injunction  has  already  issued  an  obstacle  to  the  granting  of 
Federal  mandamus.12  "Whore  an  injunction  issued  by  a  State  court  does 
not  restrain  Federal  proceedings,  but  merely  certain  acts  of  a  Federal 
suitor,  comity  usually  requires  that  the  Federal  court  refuse  a  counter 
injunction,  though  if  proper,  it  will  protect  its  suitor  by  an  order  authoriz- 
ing the  enjoined  act. is  In  cases  of  concurrent  State  and  Federal  juris- 
diction where  the  State  court  has  acquired  priority  or  an  exclusive  posses- 

^Riggs  v.  Johnson  Co.  6  Wall.  166,  sWoods  v.  Root,   123  Fed.  402,  59 

18  L.  cd.  77G;   Ableman  v.  Booth.  21  C.  C.  A.  206. 

How.  510.  16  L.  ed.  773;  Peck  v.  .Jen-  9See  ante,  §  3. 

ness,    7    How.    625.    12    L.    ed.    841;  i^iSchuvler  v.  Pelissier,  3  Edw.  Ch. 

Taylor  v.  Carryl,  20  How.  597,  15  L.  193;   Central  X.  Bank  v.  Hazard,  49 

ed.  1028;     Supervisors    v.    Durant,  9  Fed.  293;  Ex  parte  Holman,  28  Iowa 

Wall.  418,  19  L.  ed.  732;   Matter  of  105.  4  Am.  Rep.  168;  Mead  v.  Merritt, 

Farrand,   1    Abb.    (U.   S.)    145,   Fed.  2  Paige,  404;    Kendall  v.   Winsor,   6 

Cas.  No.  4,678.  R.  I.  462;  City  of  Opelika  v.  Daniel, 

s.Vbleman   v.  Booth,   21   How.   526,  59   Ala.   216;    Central   Nat.    Bank   v. 

16  L.  ed.   169:    Semple  v.  Hagar,  27  Stevens,  169  U.  S.  432,  42  L.  ed.  80?, 

Cal.   170.  18   Sup.   Ct.   Rep.   403;    New   Jersey 

6McClung    V.    Silliman,    2    Wheat.  Zinc  Co.  v.  Franklin  I.  Co.  29  N.  J. 

370.  4  L.  "d.  263,  0  WTieat.  604,  5  L.  Eq.    431 ;    Minchin    v.    Second    Nat. 

ed.  340;   Sheriff  v.  Turner,  119  Fed.  Bank.   36  N.  J.   Eq.   443. 

231.  iiRiggs  V.  Johnson  Co.  6  Wall.  194, 

'McKim  V.  Voorhies,  7  Cranch.  281.  18  L.  ed.  776;  United  States  v.  Keo- 

3  L.  ed.  342;  Riggs  v.  Johnson  Co.  6  kuk.    0    Wall.    517.    18    L.    ed.    934; 

Wall.   195.   18  L.  ed.   768;    Weber  v.  Mavor  v.  Lord,  9  Wall.  414.  19  L.  ed. 

Lee  Co.  6  Wall.  213.   18  L.  ed.  781;  707^   Supervisors  v.  Durant,  9   WaU. 

United    States    v.    Keokuk,  6  Wall.  417.   19  L.    ed.    733;     Supervisors  v. 

517,  18  L.  ed.  933:   Dorr  v.  Rohr.  82  Durant,  9  Wall.  417.  19  L.  cd.   733: 

Va.  359,  3  Am.  St.  Rep.  106;  Stozier  Army  v.  Supervisors,  11  Wall,  138,  20 

V.  Howes.    30    Ga.    579;     Chapin   v.  L.  ed.  102;  Holt  Co.  v.  National,  etc. 

James,  11  R.  L  89,  23  Am.  Rep.  415;  Co.  80  Fed.  691,  25  C.  C.  A.  469:  Hill 

Central,  etc.  Bank  v.  Hagard,  49  Fed.  v.   Scotland  Co.  Court.  32   Fed.  717: 

295;  Reinach  v.  Atlantic,  etc.  Co.  58  United  States  v.  King,  74  Fed.  498, 

Fed.  44;  Royal  T.  Co.  v.  Washburn,  499;  Gaines  v.  Springer,  46  Ark.  507. 

etc.  R.   R.   113  Fed.  531;   Central  T.  i2Clews  v.  Lee,  2  Woods,  476,  Fed. 

Co.  V.  Western,  etc.  R.  R.  89  Fed.  27;  Cas.  No.  2,892. 

Freeman  v.  Timanus,  12  Fla.  411.  isGreen  v.  Porter,  123  Fed.  351. 

173 


§  22   [a]  FEDERAL  JURISDICTION   IN   GENERAL.  [Code  Fed. 

sion  of  the  res  in  controversy  under  the  principles  elsewhere  discussed, i'' 
it  will,  just  as  would  the  Federal  court, is  protect  its  exclusive  jurisdiction 
by  enjoining  parties  amenable  to  its  process,  from  proceedings  in  other 
courts  tending  to  embarrass  or  disturb  it. is  The  Federal  cases  do  not 
seem  to  concede  the  right  to  do  so.it  But  if  in  fact  the  State  court  is 
entitled  to  proceed  and  the  Federal  court  bound  to  stay  its  hand,  the 
command  of  the  injunction  merely  accords  with  the  rule  of  comity  which 
the  Federal  courts  should  observe.  There  is  no  mode  for  adjudging  the 
action  of  the  State  court  improper  unless  by  contempt  proceedings,  be-' 
cause  no  legal  right  is  impaired  thereby.  If  the  Federal  court  has  priority 
of  jurisdiction,  injunction  against  its  proceedings  in  the  State  court  is  such 
error  as  may  be  relieved  against  by  the  Supreme  Court  on  writ  of  error.i* 

§  22.  —  comity  between  different  Federal  courts. 

The  conflicts  of  jurisdiction  which  result  from  the  fact  that 
Federal  and  State  courts  have  a  large  concurrent  jurisdiction,  and 
exercise  it  within  the  same  territory,  do  not  result  as  between  co- 
ordinate Federal  tribunals  in  different  States,  since  their  territorial 
jurisdictions  are  separate  and  distinct.  Certain  rules  of  comity  are, 
however,  observed  where  the  same  matter  creates  a  right  of  action 
in  different  districts. ^^^ 
Author's  section. 

[aj     Comity  between  Federal  courts  in  different  States. 

Since  the  plea  of  prior  action  pending  is  not  available  where  the  two 
actions  are  in  courts  of  different  States, i  a  suit  in  one  circuit  court  is 
not  a  bar  to  suit  in  another  district  situate  in  another  State,  though  the 
second  court  will,  as  matter  of  comity,  often  suspend  action  until  the 
first  suit  is  terminated. 2  The  principle  that  given  the  court  having  pos- 
session of  person  or  property  exclusive  jurisdiction,  applies  to  Federal 
courts  of  different  districts  having  co-ordinate  jurisdiction. 3  Where  pro- 
ceedings are  instituted  affecting  the  propertj'^  of  a  corporation  such  as  a 
railroad  doing  business  and  having  property  in  several  States  comity  re- 

i4gee  ante,  §  16.  i^Central   Nat.    Bank    v.    Stevens, 

iBSee  ante,  §  20,  note.W]  169  U.  S.  432,  4-2  L.  ed.  807,  18  Sup. 

i6Home   Insurance   Co.   v.  Howell,  Ct.  Rep.  403. 

24  N.  J.  Eq.  238;  Yick  Wo  v.  Crow-  isCentral  Na.t.  Bank  v.  Stevens.  169 

ley,   26    Fed.    207;    Cole   v.    Cunning-  U.  S.  463,  42  L.  ed.  807,  18  Sup.  Ct. 

ham,  133  U.  S.  107.  33  L.  ed.  .538,  10  Rep.   403;    Farmers'   L.    &   T.   Co.   v. 

Sup.  Ct.  Rep.  2G9;  Hines  v.  Rawson,  Lake  St.  etc.  R.  R.  177  U.  S.  61,  44 

40  Ga.  356,  2  Am.  Rep.  581;   Ingra-  L.  ed.  671,  20  Sup.  Ct.  Rep.  564. 

ham  V.   National   Salt   Co.   139   Fed.  iSee  ante,  §  I6.m 

684;   In  Moran  v.  Sturges,  154  U.  S.  2Rvan  v.   Seaboard  R.  R.   89   Fed. 

256,  38  L.  ed.  981,  14  Sup.  Ct.  Rep.  397.  ' 

1019,  the  priority  of  the  State  court  3ln  re  Johnson,  167  U.  S.   125,  42 

was  denied  and  its  injunction  there-  L.  ed.  103,  17  Sup.  Ct.  Rep.  737. 
fore  held  invalid. 

174 


Procedure]  SUITS    BY    ASSIGNEES.  §  23    [a] 

quires  the  Federal  courts  appealed  to  in  the  different  States,  to  respect 
a  prior  decision  of  the  matters  in  controversy  rendered  in  another  circuit. * 
So,  upon  application  for  a  receiver,  the  one  appointed  by  the  court  where 
the  company's  principal  office  is  situate,  will  usually  by  comity  be  ap- 
pointed in  the  other  juri.sdictions.5  A  Federal  court  will  restrain  the 
marshal  of  another  district  and  State  from  levying  a  void  process  within 
its  jurisdiction.  6 

§  23.     Suits  by  assigmees  and  colorable  transfers  to  obtain  or 
defeat   Federal   jurisdiction. 

Nor  shall  any  circuit  or  district  court  have  cognizance  of  any  suit, 
except  upon  foreign  bills  of  exchange/^^  to  recover  the  contents 
of  any  promissory  note  or  other  chose  in  action"^"^^  in  favor  of  any 
assignee/*'^  or  of  any  subsequent  holder  if  such  instrument  be  pay- 
able to  bearer  and  be  not  made  by  any  corporation,^'^^  unless  such 
suit  might  have  been  prosecuted  in  such  court  to  recover  the  said 
contents  if  no  assignment  or  transfer  had  been  made."^®^ 

Part  of   §   1   of   act   Mar.   3,   1875,   c.   137,   18   Stat.   470,   as   amended 
Aug.  13,  1888,  c.  866,  25  Stat.  433,  U.  S.  Comp.  Stat.  1901,  p.  508. 

[a]     History  of  prohibition  against  suits  by  assignees. 

Originally,  by  §  11  of  the  judiciary  act  of  1789,  and  R.  S.  §  629,  only 
suits  by  an  assignee  of  a  foreign  bill  of  exchange  were  excepted  from  the 
prohibition  against  suits  bj'  assignees  where  the  assig-nor  was  incompetent 
to  sue  in  the  Federal  court.  The  decisions  under  tbe  law  of  1789 
made  two  further  exceptions.  The  first  was  that  an  indorsee  of  a  note 
might  sue  his  immediate  indorser  if  diverse  citizenship  existed  between 
them,  since  the  indorsee  did  not  claim  against  his  immediate  indorser  by 
assignment,  but  by  virtue  of  a  new  contract  between  them.io  The  sec- 
ond was  that  if  an  instrument  was  payable  to  bearer,  or  to  a  named 
person  or  bearer,  the  holder  could  sue  the  maker  if  diverse  citizenship 
existed  between  them,  regardless  of  prior  holders'  citizenship,  because  his 
title  did  not  come  by  assignment,  but  bj'  delivery  merely. n     The  act  of 

<Dady  v.  Georgia,  etc.  Rv.  112  Fed.  City  v.  Ripley,  138  U.  S.  96,  34  L.  ed. 

838.  "  014.  11   Sup.  Ct.  Rep.  288:  ]\Ianufac- 

sWilmer    v.    Atlanta,    etc.    Ry.   2  turing  Co.  v.  Bradlev.  105  U.  S.  180, 

Woods  409.    Fed.    Cas.    No.    17,775;  26  L.  ed.  1036;   Campbell  v.  Jordan, 

Conklin  v.  United  States  Shipbuild-  Hempst.   534.    Fed.    Cas.   No.   2,362; 

ing  Co.  124  Fed.  1020.  Codwise   v.   Gleason,   3  Day,   3,  Fed. 

«Kirk  v.   United   States,    124   Fed.  Cas.  No.  2.938. 
324.  1  IBank  v.  Wister,  2  Pet.  318,  326, 

lOYoimsr  V.  Bryan.  6  Wheat.    146,  7  L.  ed.  437:    Thompson  v.   Porrine, 

151,  5  L.  ed.  228:  Coffee  v.  Planters'  106  U.  S.  589,  27   L.   ed.   298,   r^9-2.   1 

Bank.   13   how.   187.   14  L.   ed.    105;  Sup.   Ct.    Rep.    504.    .568;     Smith   v. 

.Uollan   V.    lorrance,    !i    Wheat.    537,  Cinpp.    15    Pet.    129,    10   L.    ed.    684; 

5.?8.  6  L.  ed.  154:   Philli{>s  v.  Preston.  Bonnafer  v.  Williams,  3  How.  577,  11 

5  How.  290.   12  L.  ed.   152;   Superior  L.   ed.   732;    Lexington   v.   Butler,   14 

175 


§   23   [b]  FEDERAL    JURISDICTION    IN    GENERAL.  [Code   Fed. 

Mar.  3,  1875,  §  1,  excepted  from  the  prohibition  of  suits  by  assignees 
"cases  of  promissory  notes  negotiable  by  the  law  merchant  and  bills  of  ex 
change."! 2  The  present  law  permits  an  assignee  to  sue  the  original 
obligor  if  citizen  of  another  State,  regardless  of  the  citizenship  of  his 
assignor  or  other  intermediate  parties,  (1)  where  the  obligation  is  based  on 
a  foreign  bill  of  exchange;  (2)  where  it  is  based  on  a  promissory  note  or 
other  chose  in  action,  made  by  a  corporation  and  payable  to  bearer :i3 
(3)  where  the  assignment  is  not  of  a  "promissory  note  or  other  chose  in 
action."! 4  The  decisions  under  the  act  of  1875  are,  for  the  most  part,  of 
no  authority  under  the  present  law,  and  should  be  carefully  discriTninated. 
The  obvious  purpose  of  the  enactment  was  to  prevent  the  bringing  of 
suits  in  Federal  courts  not  actually  involving  controversies  between  citi- 
zens of  different  States  through  the  device  of  assignments.! 5  It  is  not  in- 
consistent with  the  Constitution.!  6  Any  bill  of  exchange  drawn  in  one 
State  upon  a  person  in  another  is  a  foreign  bill.! 7  Biit  a  check  is  not 
strictly  a  bill  of  exchange.! s  It  is  a  well  settled  rule  of  pleading  in  Fed- 
eral practice,  that  in  cases  within  this  enactment,  the  citizenship  of  an 
assignor  must  affirmatively  appear.!  9 

[b]     Suits  for  contents  of  choses  in  action  within  this  proviso. 

Wliile  assignable  paper  was  doubtless  the  "chose  in  action"  that  Con- 
gress had  specifically  in  view,  the  term  is  not  to  be  restricted  to  choses  of 
that  character.!  It  is  of  comprehensive  import  and  "includes  the  in- 
finite variety  of  contracts,  covenants,  and  promises  which  confer  on  one 
party  a  right  to  recover  a  personal  chattel  or  a  sum  of  money  from  an- 
other by  action."2  The  act  of  1875  substituted  the  phrase  "claims  founded 
on  contract"  but  the  present  law  restored  the  earlier  expression.  The  ad- 
ditional clause  of  the  present  law  "if  such  instrument  be  payable  to 
bearer  and  be  not  made  by  any  corporation"  does  not  limit  the  comprehen- 
siveness of  "chose  in  action"  as  previously  understood,3  though  in  this 
Congress  again  has  in  view  assignable  paper.  Nor  is  the  word  "contents" 
in  speaking  of  a  promissory  note  or  other  chose  in  action,  of  such  plain 

Wall.  293.  20  L.  ed.  809;  Chickamin-?  ed.  1147.     But  see  Bullard  v.  Bell,   1 

V.  Carpenter,  106  U.  S.  666,  27  L.  ed.  Mason.  251,  Fed.  Cas.  No.  2,121. 

307,   1   Sup.  Ct.  Rep.  620:   Manufa«-  !7Townslev  v.  Sumrall,  2  Pet.  179, 

turing  Co.  v.  Bradlev,  105  U.  S.  180,  7  L.  ed.  386:  BucKner  v.  Finlay,  2  Pet. 

26  L.  ed.   1036;    Codman  v.  Vermont  590,  7  L.  ed.  528;  Dickins  v.  Beal,  10 

&  C.  R.  R.   17  Blatchf.  1,  Fed.  Cas.  Pet.  579.  9  L.  ed.  538;  Armstrong  v. 

No.  2,936.  American,  etc.  Bank.   133  U.  S.  453. 

!218  St.  470,  c.  137,  §  1.  33  L.  ed.  747,  10  Sup.  Ct.  Rep.  450. 

isSee  Parker  v.  Ormsby,  141  U.  S.  !SBull  v.  Bank  of  Kasson,   123  U. 

81,  35  L.  ed.  654,  11  Sup.  Ct.  Rep.  913,  S.  105,  31  L.  ed.  98,  8  Sup.  Ct.  Rep. 

reviewing  the  legislation  on  the  sub-  63. 

ject.     Wilson   v.   Knox   Co.   43   Fed.  !9See  ante,  §  9.[d] 

481.  !Sere  v.  Pilot,  6  Cranch,  335,  3  L. 

!4See  infra,  note.Cb]  ed.  241. 

!5Bushnell  v.  Kennedv,  9  Wall.  392,  sSheldon  v.  Sill,  8  How.  441,  449, 

19  L.  ed.  738;   Holmes 'v.  Goldsmith,  12  L.  ed.  1147. 

147  U.  S.  160,  37  L.  ed.  118,  13  Sup.  sMexican    N.    R.    R.   v.  Davidson. 

Ct.  Rep.  288.  157  U.  S.  206,  39  L.  ed.  672,  15  Sup. 

!  6 Sheldon  v.  Sill,  8  How.  449,  12  L.  Ct.  Rep.  565. 

176 


4 


Procedure]  SUITS  BY  ASSIGNEES.  §  23   [b] 

import  that  it  can  be  deemed  to  limit  the  meaning  of  chose  in  action.'' 
An  inland  bill  of  exchange  is  within  the  terms  of  the  prohibition. 5  Promis- 
sory notes  payable  to  order  have  likewise  always  been  deemed  within  its 
terms; 6  and  it  makes  no  difference  that  they  are  past  due.T  Since  the 
adoption  of  the  law  as  it  now  exists,  instiviments  payable  to  bearer  are 
only  suable  by  a  transferee  without  regard  to  the  citizenship  of  prior 
holders,  where  they  are  executed  by  a  corporation.s  A  right  to  an  account 
of  the  proceeds  of  sale  of  mortgaged  property  is  a  chose  in  action. 9  Mer- 
chant's accounts  and  unliquidated  claims  are  choses  in  action  and  an  as- 
signee in  insolvency  cannot  sue  thereon  in  the  Federal  court  unless  the  in- 
solvent might  have  done  so.io  Judgments  are  claims  "founded  upon  con- 
tract" and  by  the  act  of  1875  an  assignee  could  not  sue  in  a  Federal 
court  unless  his  assignor  might  have  done  so.n  It  does  not  seem  to  have 
been  decided  in  any  case  that  a  judgment  could  be  regarded  as  a  chose  in 
action  within  the  present  law  or  the  law  of  1789.12  A  suit  to  enforce 
specific  performance  of  a  contract  or  its  obligation  is  a  suit  to  recover  the 
contents  of  a  chose  in  action; is  as  also  a  suit  to  enforce  payment  out  of  a 
specific  fund  provided  by  agreement  to  meet  that  and  other  debts.i^ 
A  non-negotiable  note  is  within  this  enactment;  15  as  also  an  oral  con- 
tract, is 

A  mortgage  note  is  a  chose  in  action;  17  and  unless  made  by  a  corpora- 
tion and  payable  to  bearer,i8  it  would  seem  plain  under  the  present  law 
as  well  as  under  the  act  of  1789,  that  an  assignee  cannot  sue  thereon  and 
for  foreclosure  in  the  Federal  court  unless  his  assignor  might  have  done 


4Sere  v.  Pitot,  G  Craiich,  335,  3  L.  8  Sup.  Ct.  Rep.  GS6:   Plant  Tnv.  Co. 

ed.  240.  V.  Jacksonville,  etc.  R.  R.  152  U.  S. 

sMorgan   v.   Gay,   19   Wall.   82,  22  77,   38  L.   ed.   358,   14   Sup.  Ct.  Rep. 

L.  ed.  100.  483. 

STurner  v.  Bank  of  N.  A.  4  Dall.  i •'Mexican  N.  R.  R.  v.  Davidson,  157 

11,  1  L.  ed.  718;   Parker  v.  Ormsby,  U.  S.  206,  39  L.  ed.  672,  15  Sup.  Ct. 

141  L.  S.   85,  35  L.  ed.  654,  11   Sup.  Rep.  565. 

Ct.   Rep.   912;    Steel  v.   Rathbun,  42  isGeorge  v.  Wallace,  135  Fed.  286, 

Fed.  390.  68  C.   C.   A.  40. 

TCross  V.  Allen,  141  U.  S.  533,  35  isUtah-Xevada    Co.    v.    DeLamar, 

L.  ed.  843,  12  Sup.  Ct.  Rep.  67.  133  Fed.  113,  66  C.  C.  A.  179. 

8 See  infra,  note.Cd]  1 7 Sere  v.  Pitot,  6  Cranch,  336,  3  L. 

9 Wilkinson  v.   Wilkinson,   2   Curt.  ed.  241;   Sheldon  v.  Sill,  8  How.  441. 

582,  Fed.  Gas.  No.  17.677.  12  L.  ed.   1147.     See  Kolze  v.  Hoad- 

loSere  v.  Pitot,  6  Cranch,  335,  3  L.  ley,  200  U.  S.  76,  50  L.   ed.  377,  26 

ed.  241.  Sup.  Ct.  Rep.  220,  holding  same  as  to 

11  Walker  v.  Powers,  104  U.  S.  248,  deed  of  trust. 

26   L.    ed.   729;    Mississippi   Mills   v.  iSSee  infra,  note-[d]      It  is  doubt- 

Cohn,  150  U.  S.  208,  37  L.  ed.  1052,  ful  whether  the  accompanying  moit- 

14  Sup.  Ct.  Rep.  75;  Metcalf  v.  Wa-  gage  mav  be  foreclosed  in  the  Fed- 

tertown,  128  U.  S.  587,  32  L.  ed.  543,  eral    court    even   then.      See   Hill    v. 

9  Sup.  Ct.  Rep.  173.  Winne,    1    Biss.    277,    Fed.    Cas.    No. 

i2See  Bean  v.  Smith,  2  Mason,  252,  6,503.     But  compare  the  reasoning  of 

Fed.  Cas.  No.  1.174.  Treadwav  v.  Sanger.  107  U.  S.  324,  27 

isCorbin  v.  Blackhawk  Co.  105  U.  L.  ed.  582.  2  Sup.  Ct.  Rep.  691,  under 

S.  659,  26  L.  ed.   1136;    Sihoecraft  v.  the  act  of  1875. 
Bloxham,  124  U.  S.  730,  31  L.  ed.  574, 
Fed.  Proc— 12.                               177 


§  23   [b]  FEDERAL  JURISDICTION  IN  GENERAL.  [Code  Fed. 

so. 19  Whether  the  mortgage  itself  is  a  chose  in  action20  or  a  mere  in- 
cident to  the  debtji  a  suit  for  possession  thereunder  is  not  one  to  re- 
cover the  "contents"  of  a  chose  in  action.  Hence  where  an  assignee  has 
obtained  judgment  in  a  State  court  on  the  mortgage  note,  he  may  en- 
force an  equitable  mortgage  lien  incident  thereto  in  the  Federal  court 
regardless  of  the  mortgagee's  citizenship.2  Similarly  ejectment  at  law 
lias  been  upheld  where  prosecuted  by  the  assignee  of  a  mortgagee,  though 
the  latter  and  mortgagor  were  citizens  of  the  same  State  ;3  also  a  statu- 
tory action  for  possession  by  the  assignee  of  a  mortgagee.*  Similarly  the 
assignee  of  a  note  secured  by  chattel  mortgage  may  replevin  the  property 
from  a  third  person  in  a  Federal  court  regardless  of  the  rule  against 
suits  by  assignees.5  A  suit  to  foreclose  a  trust  deed  is  one  to  recover 
the  contents  of  a  chose  in  action. 6 

VVhile  the  term  chose  in  action  is  very  broad  and  has  in  this  enactment 
Iieen  liberally  construed,  the  context  prescribes  certain  limitations  thereon. 
The  phrase  "promissory  note  or  other  chose  in  action"  would  seem  plainly 
to  require  application  of  the  rule  ejusdem  generis  to  its  interpretation  and 
to  mean  other  choses  in  action  akin  to  promissory  notes.  Furthermore 
the  word  "contents"  although  it  has  been  criticized  as  inapt  and  ambig- 
uous,'? confines  the  meaning  of  "other  chose  in  action"  to  such  as  may 
fairly  be  said  to  have  contents.  "Contents"  it  is  said,  means  the  rights 
conveyed  by  an  instrument  capable  of  enforcement  by  suit.s  It  would 
seem  that  "chose  in  action"  should  be  limited  to  rights  growing  out  of 
contracts  which  are  either  unilateral  in  their  inception  or  which  have 
l>ecome  so  by  performance  of  the  consideration  by  one  of  the  parties.  If 
a  bilateral  contract  is  transferred  to  another  by  assignment  and  novation, 
a  chose  in  action  subsequently  arising  thereunder  is  original  in  the  as- 
signee, and  therefore  he  is  not  assignee  of  such  chose  in  action  although 
assignee  of  the  contract. 9 

The  word  "contents"  refers,  aptly  enough,  to  rights  of  action  founded  on 
contracts  containing  within  themselves  some  promise  or  duty  to  be  per- 
formed, but   not   to   rights   of   action   founded   on   some   wrongful   act   or 

isHill  V.  Winne.  1  Biss.  277.  Fed.  20ber  v.   Gallagher,  93  U.   S.  205, 

Cas.   No.    6,503;     Sheldon    v.   Sill,   8  23  L.  ed.  829. 

How.  441,  12  L.   ed.   1147.      But  see  sSmith  v.  Keniochen,  7  How.  199, 

Dundas    v.    Bowler,    3    ]\IcLean.    204,  12  L.  ed.  666. 

Fed.  Cas.  No.  4,140;   Seckel  v.  Back-  4 whiting   v.    Wellington,    10   Fed. 

bans,    7    Biss.    354,    Fed.    Cas.    No.  glO 

12,599.     The   law   of   1875   permitted  sBuckingham    v.    Dake,    112    Fed. 

suit   on   an   assigned  mortgage   note  353,  50  C.  C.  A.  402. 

if   negotiable,    regardless   ot    the   as-  ^'     ,           ^^      .,        „„„  ^^    „   _.    _„ 

signo^s'     citizenship.       Tredwav     v.  ,  ^I\«l-,t7- Hoadley,  200  U.  S   76,  50 

Sanger,    107    U.    S     324,    27    L.    ed.  ^-  ^^^  ^^7,  26  Sup.   Ct.  Rep.  220. 

582.  2  Sup.  Ct.  Rep.  091;  Mersman  v.  ''Sere  v.  Pitot,  6  Cranch,  335,  3  L. 

Wero-es,  112  U.  S.  143,  28  L.  ed.  641  ^^-   241;    Shoecroft   v.   Bloxham,    124 

5  Sup.  Ct.  Rep.  65;  Whiting  v.  Well-  U.  S.  735,  31  L.  ed.  574,  8  Sup.  Ct. 

ington,  10  Fed.  S15.  ^ep.  680. 

2  0Hill  V.  Winne,  1  Biss.  277,  Fed.  sshoecraft  v.  Bloxham.   124  U.  S. 

Cas.  No.  6.503.  735,  31  L.  ed.  574,  8  Sup.  Ct.  Rep.  686. 

iSheldon  v.  Sill,  8  How.  441,  12  L.  sSee  infra,  note.M 
ed.  1147. 

178 


Procedure]  SUITS    BY    ASSIGNEES.  §  23   [c] 

some  neglect  of  duty  to  which  the  law  attaches  damages.io  An  action 
for  trespass  by  tortiously  cutting  logs  could  not  be  deemed  to  be  for  the 
contents  of  a  chose  in  action,  and  Federal  jurisdiction  over  such  an  ac- 
tion may  arise  from  an  assignment  regardless  of  assignor's  citizenship. n 
The  act  of  1875  referred  to  choses  "founded  on  contract,"  thus  expressly 
excluding  those  arising  from  tort;  12  but  the  effect  of  the  present  law 
would  seem  to  be  the  same.  A  suit  against  a  bank  for  negligence  in  fail- 
ing to  protest  a  draft  is  not  for  the  contents  of  a  chose  in  action  and  Fed- 
eral jurisdiction  may  be  created  by  assignment. 1 3  So  an  action  to  recover 
possession  of  a  thing  even  though  it  be  a  promissory  note,i4  or  damages 
for  its  wrongful  detention  is  not  an  action  to  recover  the  "contents"  of  a 
chose  in  action;  neither  is  an  action  to  obtain  possession  though  based 
upon  rights  under  a  mortgage.is  An  action  between  indorsers  upon  an 
agreement  to  pay  half  the  loss  is  not  for  the  contents  of  a  chose  in  action. 16 
The  transfer  of  land  is  very  plainly  not  an  assignment  or  transfer  of 
a  chose  in  action  within  this  section. i"  And  it  has  been  held  at  circuit 
that  a  Federal  bail  bond  assigned  to  plaintiff  was  not  taken  from  the  an- 
cillary jurisdiction  of  the  Federal  court  by  this  provision;is  and  that  it 
does  not  apply  to  suits  brought  by  the  United  States  on  bonds.is 

[c]     Assignees  and  assignments — indorsement. 

This  section  refers  only  to  suits  in  favor  of  an  assignee  and  not  to 
suits  by  an  original  party  such  as  lessor,  against  one  to  whom  his  lessee 
has  assigned;!  or  a  mortgagee  suing  the  assignee  of  his  mortgagor.2  Nor 
does  it  apply  to  a  suit  brought  on  the  relation  of  the  assignee  of  a  note,  on 
the  official  bond  of  a  township  trustee,  for  illegally  executing  the  note.s 
An  assignee  in  the  sense  here  intended,  is  anyone  who  by  virtue  of 
a  transfer  to  him  can  claim  the  beneficial  interest  of  a  contract.*  It  makes 
no  difference  that  the  assignment  is  by  operation  of  law,  and  an  assignee 
in  insolvency   is   included; 5    one   buying  a  parish   warrant   payable   to  A 

loDeshler  v.  Dodge,  16  How.  631,  16  Sup.  Ct.  Rep.  307;   Dickerman   v. 

14  L.  ed.  1088;  Bushnell  v.  Kennedy.  Xorthern  T.  Co.  176  U.  S.  192,  44  L. 

0  Wall.  387.  19  L.  ed.  736:  Ambler  v.  ed.  431,  20  Sup.  Ct.  Ren.  31 1;  Briggs 

Eppinger,  137  U.  S.  480,  34  L.  ed.  765,  v.  French,  2  Sum.  251.  Fed.  Gas.  No. 

11  Sup.  Ct.  Rep.  173.  1,871. 

11  Ambler  v.   Eppinger,    137   U.   S.  isBobyshall     v.     Oppenheimer,     4 

480.  34  L.  ed.  765,  11   Sup.  Ct.  Rep.  Wash.  C.  C.  482.  Fed.  Cas.  No.  1.592. 

173.  laUnited     States     v.     Greene.     4 

i2Va.n  Bokkelen  v.  Cook,  5  Sawy.  Mason,  427,  Fed.  Cas.  No.  15.258. 

587,   Fed.   Cas.   No.   16,831.  1  Adams  v.  Shirk,  105  Fed.  659.  44 

isBarnev  v.  Globe  Bank,  5  Blatchf.  C.  C.  A.  653:  Brooks  v.  Laurent,  98 

107.  Fed.  Cas.  No.  1.031.  Fed.  647,  39  C.  C.  A.  201. 

uDeshler  v.  Dodge,   16  How.   631,  2Edwards   v.   Hill,   59   Fed.   723,   8 

14  L.  ed.  1088.  C.  C.  A.  235. 

isSmith  V.  Kernochen,  7  How.  198,  3lndiana  v.  Glover,  155  U.  S.  513, 

12  L.  ed.  666;  Whiting  v.  Wellington,  39  L.  od.  243,  15  Sup.  Ct.  Rep.  186. 

10  Fed.   SIO,   SI 3.  4riant  Inv.  Co.  v.  Jacksonville,  etc. 

isPliillips  V.  Preston,  5  How.  278,  Ry.   152  U.   S.  77,   38  L.  ed.  358,  14 

12  L.  ed.  152.  Sup.  Ct.  Rep.  483. 

1  "Jones  V.  League.  18  How.  81,  15  sSere  v.  Pitot.  6  Cranch.  335,  3  L. 

L.  ed.   263;    beliigh  Min.    etc.   Co.   v.  od.  241.    Doubted  in  Bushnell  v.  Ken- 

Kellv,  160  U.  S.^336,  40  L.  ed.  444,  nedv,  9  Wall.  387,  19  L.  ed.  73!).   But 

179 


§   23   [c]  FEDERAL  JURISDICTION    IN    GENERAL.  [Code  Fed. 

or  order  at  probate  sale  of  A's  estate  is  an  assignee  and  does  not  take  title 
by  legal  adjudication  in  rein.^  But  an  executor  or  administrator  is  not 
an  assignee;"  nor,  it  seems,  is  a  receiver^  A  pledgee  of  stock  has  been 
held  an  assignee  and  bound  by  the  stockholders  citizenship  as  to  suit 
in  the  Federal  court. 9  The  power  conferred  upon  the  trustee  in  a  water 
company's  mortgage,  to  collect  rentals  due  the  company  under  certain 
circumstances,  has  been  held  to  make  him  an  assignee  and  debar  suit  by 
him  in  the  Federal  court  where  the  water  company  could  not  there  sue.i" 
A  water  company's  mortgage  covering  rentals  due  under  contracts  with  a 
city  is  no  more  than  an  assignment  of  such  contract  rights.n  A  deed 
of  trust  in  the  nature  of  a  mortgage  which,  after  setting  forth  the  mort- 
gagor's rights  to  certain  lands  under  a  certain  contract,  deeded  all  the 
mortgagor's  rights  "in  or  to"  the  said  l?nds  is  virtually  an  assignment 
of  a  contract  within  this  provision.12  Equitable  as  well  as  legal  assign- 
ments are  included. is  A  partner  suing  on  a  firm  cause  of  action,  in  his 
own  right  and  as  assignee  of  his  partner  must  show  that  his  assignor's 
citizenship  is  such  that  he  could  have  maintained  the  suit.i*  But  one  sub- 
rogated to  the  rights  of  another  is  not  an  assignee  even  although  the 
right  is  also  assigned.! ^  A  stockholder  suing  for  a  corporation  is  not  an 
assignee.  16 

To  constitute  one  an  assignee  of  a  chose  in  action,  it  is  plain  that  the 
chose  must  have  previously  existed  in  some  other,  from  whom  the  as- 
signee must  have  derived  it.  If  the  liability  sued  on  is  not  derivative  but 
orignates  in  favor  of  plaintiff  and  had  no  previous  existence  in  another,  it 
cannot  be  within  the  rule  against  suits  by  assignees,  even  though  the  in- 
strument to  which  this  new  liability  attaches  and  out  of  which  it  has 
arisen  subsequent  to  the  assignment,  has  been  assigned  or  transferred  to 
plaintiff  by  another.  A  continuing  contract  for  furnishing  water  to  a  mu- 
nicipality by  a  water  company,  may  be  transferred  or  assigned  without  as- 
signing also  the  claim  for  water  already  furnished.i'?  In  such  a  case  and  in 
all  other  cases  where  a  new  contract  virtually  arises  as  the  basis  of  the 
right  sued  on,  plaintiff  cannot  be  said  to  be  an  assignee.     So  where  a  new 

reaffirmed  in  Glass  v.  Police  Jurv.  176  n  American  W.  Works  Co.  v.  Home 

U.  S.  2i0,  44  L.  ed.  436,  20  Sup!  Ct.  W.  Co.  115  Fed.  171. 

Rep.  347.   See  also  United  States  Nat.  i2Shoecraft  v.  BloxLam,  124  U.  S. 

Bank  v.  McNair,  56  Fed.  323.  7.30.  31  L.  ed.  574,  8  Sup.  Ct.  Rep.  686. 

eGlass   v.    Police   Jury,    176   U.    S.  See  Boston,  etc.  Co.  v.  Plattsmouth, 

210,  44  L.  ed.  436,  20  Sup.  Ct.  Rep.  76  Fed.  881. 

346.                  „     „       ,               ,     ^  isCorbin  v.  Blackhawk  Co.  105  U. 

vMayer  v.  Foulkrod,  4  Wash.  C.  C.  g.  066,  26  L.  ed.  1136. 

349,  Fed.  Cas_  No.  9,341  ,,g^^  ^,    Columbia  S.  Ry.  117  Fed. 

sPaige  V.  Rochester,  137  Fed.  663;  q,    r^s  r   r    A    dn~ 

Davies   v.   Lathrop,    12   Fed.   353,   20  '^  'J*       )^\               ^    .         ,„„..„ 

Blatchf.   397.      But   see   Bradford  v.  J-'^pw  OrleaiLs  v.  Games,  138  U.  S. 

Jenks,  2  McLean,  130.  Fed.  Cas.  No.  ^^^'  ^^  L.  ed.  1102,  11  Sup.  Ct.  Rep. 

1,769;    Thompson    v.    Pool,    70    Fed.  431. 

725.  ifiConsumers'  G.  T.  Co.  v.  Quinby, 

sGorman   W.    Co.   v.    Wright,    1^4  137  Fed.  882,  70  C.  C.  A.  220. 

Fed.  365,  67   C.  C.  A.  345.  i^See  Portage  C.  W.  Co.  v.  Portage, 

lOEau  Claire  v.  Payson,  107   Fed.  102  Fed.  772. 
552,  46  C.  C.  A.  466. 

180 


Procedure]  SL'ITS    BY    ASSIGNEES.  §   23   [c] 

corporation  succeeds  to  the  rights  of  an  old  concern  upon  a  contract  with 
a  superintendent  and  continues  the  employment,  it  may  acquire  a  chose 
in  action  under  the  assigned  contract  which  is  nevertheless  original  in  its 
favor  and  not  within  the  rule.is  And  where  breach  of  a  continuing  con- 
tract first  occurs  after  its  assignment,  the  chose  in  action  arising  from 
such  breach  is  not  an  assigned  one  although  the  contract  is  an  assigned 
contract.19  Nor  is  this  merely  true  of  continuing  bilateral  contracts  such 
as  the  foregoing,  but  a  new  contract  unilateral  in  character,  may  arise 
at  the  time  of  a  transfer  of  a  chose  in  action  and  new  rights  may  accrue 
to  an  assignee.  Thus  it  was  settled  under  the  old  law  that  an  indorsee 
suing  his  immediate  indorser,  was  not  an  assignee,  but  sued  upon  the 
new  contract  between  them  which  the  law  merchant  implies  from  the 
indorsement;  20  and  this  Avould  seem  to  be  still  the  rule.i  So  where 
a  note  is  made  for  the  accommodation  of  the  payee  his  citizenship  is  imma- 
terial in  suit  by  his  indorsee  against  the  maker,  since  he  has  really 
assigned  nothing  and  the  contract  on  which  the  liability  is  based  la  a  new 
one.2  And  a  suit  by  a  first  indorser  against  a  second  upon  an  agree- 
ment that  the  latter  should  pay  half  the  loss,  is  clearly  upon  a  new  sepa- 
rate contract  between  them,  and  not  within  the  statute. 3  So  also  is  a 
suit  by  the  payee  of  an  order  against  the  drawee  and  acceptor,  since  the 
acceptance  creates  a  new  contract  directly  between  acceptor  and  payee.* 
Wliere  transferees  of  an  inland  bill  of  exchange  sued  to  impose  individual 
liability  on  the  stockholders  of  the  drawee  corporation  it  was  held  that 
their  suit  is  not  founded  on  the  assignment  of  the  bill. 5  A  suit  by  an 
assignee  of  a  judgment  to  vacate  satisfaction  entered  thereon,  for  failure 
of  consideration,  has  been  held  not  a  suit  on  an  assigned  chose  but  on  the 
implied  contract  of  the  corporation  to  make  the  judgment  good  if  the  con- 
sideration failed. 6  So  a  corporation  suing  on  the  common  money  counts 
for  coal  sold  and  delivered  is  not  barred  by  the  fact  that  its  agent  took  a 
note  therefor,  and  assigned  same  to  the  corporation."  And  where  requisite 
diverse  citizenship  exists  between  parties  to  a  suit  to  secure  the  fruits 
of  a  prior  judgment  by  setting  aside  fraudulent  conveyances  of  the  judg- 
ment debtor,  it  makes  no  difference  that  the  original  judgment  could  not 
have  been  obtained   in   the   Federal   court   because  based  on   an   assigned 

iSAmerican  Colortvpe  Co.  v.   Con-  of  an  accommodation  indorser:     Shu- 

tinental  C.  Co.  188  U.  S.   104.  47  L.  ford  v.  Cain.  1    Abb.  U.  S.  302.  Fed. 

ed.   404,  2.3  Sup.   Ct.   Rep.   26.5.  Cas.  No.  12,82.3;  Small  v.  King,  5  Mc- 

i9Eau   Claire   v.  Pavson,   109  Fed.  Lean,     147,     Fed.    Cas.    No.  "12.000; 

676,  48  C.  C.  A.  608.  '  Noell   v.   Mitchell,   4   Biss.   346,   Fed. 

20See  supra,  note.M  Cas.  No.  10.287. 

iSuperior  v.  Riplov.   138  T".   S.  06,  spliiHips   v.   Preston,   5   IIow.    278, 

34  L.  ed.  914,  11   Sup  Ct.  Rep.  288,  12  L.  ed.  152. 

289.  4Superior  v.  Riplev,  138  U.  S.  96, 

zHolmes   v.   Goldsmith.   147   U.   S.  34  L.  ed.  914,  11  Sup.  Ct.  Rep.  288. 

160.  37  L.  ed.  118,  13  Sup.  Ct.  Rep.  sBarlinsr  v.  Bank   of   B.   N.   A.  50 

288:  Blnir  v.  Cnicago,  201  V.  S.  400.  Fed.  260, "l  C.  C.  A.  510. 

50  L.  ed.  801.  26  Sup.  Ct.  Rep.  427;  cHav  v.  Alexandria,  etc.  R.   R.  20 

Waoluisett  Nat.  Bank  v.  Sioux  Citv  Fed.  15. 

S.  Works,    56    Fed.    321.     But   this  Tlleckscher  v.  Binney,  3  Woodb.  & 

reasoning  does  not  apply  to  the  case  M.  333,  Fed.  Cas.  No.  6,316 

181 


§  23   [d]  FEDERAL   JURISDICTION   IN    GENERAL.  [Code   Fed. 

chose  in  action.  The  suit  to  enforce  such  judgment  is  not  on  the 
original  chose  in  action. s  A  New  York  corporation  may  sue  an  Illinois 
corporation  on  its  notes,  though  indorsed  by  an  Illinois  citizen  as  treasurer 
before  negotiation. ^ 

[d]     Instrument  payable  to  bearer  and  not  made  by  a  corporation. 

This  new  proviso  first  found  in  the  legislation  that  is  now  in  force, 
does  not  limit  the  meaning  of  "chose  in  action," n  but  refers  to  the  words 
"any  subsequent  holder,"  12  and  is  directed  against  the  early  rule  under 
the  act  of  1789  and  R.  S.  §  629,  as  to  suits  on  instruments  payable  to 
bearer.i3  The  effect  of  these  words  is  that  the  old  rule  permitting  the 
holder  of  paper  payable  to  bearer,  or  to  A  or  bearer,  to  sue  regardless  of 
the  citizenship  of  prior  holders,  now  obtains  only  where  the  instrument  is 
made  by  a  corporation.! 4  A  bill  of  exchange  drawn  by  a  corporation  in 
favor  of  itself  and  by  it  indorsed  in  blank  has  been  held  payable  to 
bearer.15  A  municipality  is  a  corporation  within  this  clause. is  And 
suits  on  township,  county  and  other  municipal  bonds,  certificates  and 
coupons  when  payable  to  beareriT  as  they  usually  are,  may  be  sued  on 
by  a  citizen  of  another  State  in  a  Federal  court  regardless  of  the  citizenship 
of  intermediate  holders.is  Bonds  payable  to  " or  order"  and  is- 
sued without  the  insertion  of  any  name  are  in  legal  effect  payable  to 
bearer  within  this  rule. 1 9  If  detached  coupons  are  payable  to  bearer  it 
makes  no  difference  that  the  bonds  themselves  are  not. 20  The  fact  that 
the  payee  indorses  a  bond  in  blank  does  not  make  it  an  instrument  pay- 

snean  v.  Smith,  2  Mason,  252,  Fed.  isThompson  v.  Perrine,  lOG  U.  S. 
Cas.  No.  1.174;  Dexter  v.  Smith,  2  589,  592,  27  L.  ed.  208,  1  Sup.  Ct.  Rep. 
Mason,  303,  Fed.  Cas.  No.  3.800.  564;   Loeb  v.  Columbia  Twp.   179  U. 

9Blair  v.  Chicago,  201  U.  S.  400,  50  S.  486,  45  L.  ed.  288,  21  Sup.  Ct. 
L.  ed.  801,  26  Sup.  Ct.  Rep.  427.  Rep.  174;  Lake  Co.  Com'rs.  v.  Dudley 

iiJViexican  N.  R.  R.  v.  Davidson,  173  u.  S.  250,  43  L.  ed.  684,  19  Sup. 
157  U.  S.  206,  39  L.  ed.  672,  15  Sup.  ct.  Rep.  398;  New  Orleans  v.  Quin- 
Ct.  Rep.  565.  Ian,  173  U.  S.  192,  43  L.  ed.  664,  19 

i2Skmner  v.  Barr,  77  Fed.  816.         ^        ^t.  Rep.  329;  Independent  School 

i3See  supra  note.Ca]  p   ^,  ^^^   ^^^  P^^   ^   49  ^  ^  ^_  ^^S^ 

F  d  357  ^'  ^'''■^'"^'  ^  55  L.R.A.  364;  McLean  v.  Valley  Co. 
^sBanic  of  B.  N.  A.  v.  Barling,  46  '^.  ^y:,  389.  Negotiability  defer- 
red. 357.  This  conforms  to  ruTings  ^"^"ed  the  right  to  sue  on  municipal 
under  the  act  of  1789.  Towne  v.  obi 'gation«  under  the  act  of  18/ o. 
Smith,  1  Woodb.  &  M.  115,  Fed.  Cas.  A«kley  School  D.  v.  Hall,  113  U.  S. 
No.  14,115.  141,  28  L.  ed.  954,  5  Sup.  Ct.  Rep.  371; 
iGLo'eb  V.  Columbia  Twp.  179  U.  Ne^^  Providence  v.  Halsey,  117  U.  S. 
S.  486,  45  L.  ed.  288,  21  Sup.  Ct.  Rep.  ^38,  29  L.  ed.  904,  6  Sup.  Ct.  Rep. 
174.  764:  Blacklock  v.  Small.  127  U.  S. 
iTBut  not  otherwise:  King.  etc.  103,  32  L.  ed.  70,  8  Sup.  Ct.  Rep.  1096. 
Co.  v.  Otoe  Co.  120  U.  S.  227,  30  isLvon  Co.  v.  Keene,  etc.  Bank,  100 
L.  ed.  623,  7  Sup.  Ct.  Rep.  552;  Fed.  337.  40  C.  C.  A.  391. 
New  Orleans  v.  Benjamin,  153  U.  S.  20Revnclds  v.  Lyon  Co.  97  Fed. 
435,  38  L.  ed.  764,  14  Sup.  Ct.  Rep.  155.  But  .©e  Clarke  v.  Janesville,  1 
905;  White  v.  Vermont,  etc.  R.  R.  Biss.  98,  Fed.  aos.  No.  2,854. 
21  i.aw  Rep.  469,  Fed.  Cas.  No.  17,- 
559. 

182 


Procedure]  SUITS  BY  ASSIGNEES.  §  23   [f ] 

able  to  bearer.  1     But  a  warrant  payable  to  "A,  B  or  bearer"  is  legally  pay- 
able to  bearer.  2 

[e]  Where  suit  could  have  been  brought  if  no  assignment  made. 

The  question  whether  the  assignor  might  have  sued  is  tested  as  of 
the  time  suit  by  the  assignee  is  brought.*  It  is  determined  by  ascertain- 
ing the  citizenship  of  plaintiff,  the  original  payee,  and  defendant  and 
not  the  citizenship  of  intermediate  parties;  5  although  it  was  early  de- 
clared that  in  suit  by  an  indorsee  against  a  remote  indorser  he  must 
establish  the  requisite  citizenship  in  intermediate  indorsers.s  The  fact 
that  an  intermediate  holder  who  assigned  to  plaintiff  could  have  sued 
does  not  help  plaintiff  if  the  original  payee  had  not  the  requisite  citizen- 
ship.'^ The  section  refers  to  the  citizenship  of  the  assignor  as  affecting 
Federal  jurisdiction,  and  not  to  the  amount  in  controversy.  Hence  it  is 
the  rule  that  an  assignee  is  not  barred  from  the  Federal  court  because 
his  assignor  was  barred  by  lack  of  the  jurisdictional  amount  in  his  claim 
where   such  assignor  had  the  requisite  diverse  citizenship. 8 

[f]  Right  of  removal  in  suit  on  assigned  cause  of  action. 

Under  the  original  removal  law,  it  was  held  that  where  a  suit  on  an 
assigned  cause  was  removed  to  the  Federal  court  want  of  jurisdiction 
under  this  prohibition  against  suits  by  assignees  could  not  be  set  up.io 
The  same  conclusion  was  reached  under  the  act  of  1875.1 1  But  the  law 
of  1888  only  permits  removal  of  suits  "of  which  the  circuit  courts  of  the 
United  States  are  given  original  jurisdiction  by  the  preceding  section."i2 

iThomson  v.  Elton,  100  Fed.  145.  Fed.  Cas.  No.  17,803;  Portage  City 
SThompson  v.  Searcv  Co.  57  Fed.  W.  Co.  v.  Portage,  102  Fed.  769. 
1030,  6  C.  C.  A.  674;  Kearnev  Co.  sMollan  v.  Torrance,  9  Wheat.  537, 
Comrs.  V.  McMaster,  68  Fed.  177,  15  6  L.  ed.  154.  This  holding  seems  to 
C.  C.  A.  353;  Rollins  v.  Chaffee  Co.  ^^  ^^^^^^  J"  question  by  Emshemier 
34  Fed  91  ^'-  ^^^^^  Orleans,  ISO  U.  S.  33,  46  L.  ed. 
^Chamberlain  v.  Eckort.  2  Bi«s.  126,  1042.  22  Sup.  Ct.  Rep.  775.  An  in- 
Fed.  Cas.  No.  2,577;  Thaxter  v.  dorser  s  contract  is  with  all  subse- 
TT  i.  u  />  -»T  T  /.o  T-i  T  r^  XT  quent  holders  and  his  liability  is  not 
Hatch,  6  McLean.  68,   Fed.  Cas    No.  ^^^^j     ^^  ^^^   ^^^^  succeeding  holder. 

!of  tt'  o    oo  Tt""  "";  ?^7.  ^?o"''  ^United  "states  Nat.  Bank  v.  Mc- 

186  U.  S.  33,  46  L.  ed.  1042,  22  Sup.  Xair,  56  Fed.  323. 

Ct.  Rep.  770;  White  v.  Leahy,  3  Dill.  sRernheim    v.   Birnbaum,    30    Fed. 

378,   Fed.  Cas.  No.  17,551;    Jones  v.  885;    Chase    v   Slieldon  R.  M.  Co.  56 

Shapera,  57  Fed.  457,  6  C.  C.  A.  423;  Fed.    625;    Bowden    v.    Burnham,   59 

Brainard  v.  Williams.  4  McLean.  122,  Fed.  752,  8  C.  C.  A.  248;  Bergman  v. 

Fed.  Cas.  No.  1,804;  Noves  v.  Craw-  Inman,  91   Fed.  293. 

ford,  133  Fed.  790.     But  see  Rogers  i^Green  v.   Custard,    23  How.   484, 

v.  Linn,  2  McLea,n,  126,  Fed.  Cas.  No.    i^,^^-,r'.;af  Va  ?"^V"-L''-  ^^^""^^J'' 
,„„,-  '  9  Wall.  387,  19  L.  ed.  738. 

^'^'^^^^  iiClnflin  V.  Insurance  Co.  110  U.  S. 

sMilledollar    v.    Bell,   2  Wall,   Jr.  gi^  28  L.  ed.  76,  3  Sup.  Ct.  Rep.  507: 

334,  Fed.  Cas.  No.  9,.549:   Emsheimer  Delaware  Co.  Comrs.  v.  Diebold  S.  & 

V.  New  Orleans,  116  Fed.  893,  180  U.  L.  Co.   133  U.  S.  473,  33  L.  ed.  674, 

S.  33,  46  L.  ed.  1042,  22  Sup.  Ct.  Rep.  10  Sup.  Ct.  Rep.  399^ 

775;    Wilson  v.   Fisher,   Baldw.    133,        12 See  oost,  §  133,  et  seq. 

183 


8  23    [g] 


FEDERAL    JURISDICTION    IN    GENERAL. 


[Code  Fed. 


This  makes  the  provision  here  under  consideration  fully  applicable  to 
removed  causes,  and  a  defect  of  Federal  jurisdiction  arising  from  the  fact 
that  the  plaintiff  is  an  assignee  of  a  chose  in  action  is  not  waived  by 
defendant's  petition  for  removal  to  the  Federal  court.13 

[g]     Colorable  transfers  to  defeat  or  confer  Federal  jurisdiction. 

Apart  from  the  provisions  of  this  section  the  courts  have  held  a  merely 
colorable  transfer  made  to  confer  jurisdiction  to  be  a  fraud  on  the  court, 
and  will  dismiss  such  cases. 1 5  The  principle  has  been  applied  to  a  color- 
able transfer  of  lands; i6  or  bonds; it  or  coupons. is  But  if  a  transfer 
of  land  be  actual  it  makes  no  difference  that  the  intent  was  thereby  to  ob- 
tain a  Federal  tribunal.i9  The  motive  with  which  Federal  jurisdiction  is 
invoked  is  immaterial. i  So  also  the  real  owner  of  coupons  may  sue  in 
the  Federal  court  though  he  purchased  for  that  sole  purpose;  2  or  the  actual 
purchaser  of  bonds.  3  A  corporation  created  for  the  express  purpose  of 
suing  in  the  Federal  court  is  not  therefor  debarred.*  An  assignment  for 
value,  of  a  mortgage  thoiigh  to  oust  State  court's  jurisdiction  is  not  in- 
valid where  knowledge  of  such  purpose  is  not  brought  home  to  the  as- 
signee.^  A  merely  colorable  or  fictitious  assignment  to  confer  a  right  of 
removal  is  nugatory  and  the  case  will  be  remanded. «  But  an  assign- 
ment which  defeats  a  right  of  removal  will  not  be  disregarded  by  a 
Federal  court  because  made  with  that  avowed  intent. 7     It  has  been  held 


isMexican  N.  R.  R.  v.  Davirtson, 
157  U.  S.  207,  39  L.  ed.  675.  15  Sup. 
Ct.  Rep.  565. 

isBarnev  v.  Baltimore,  6  Wall.  288, 

18  L.  ed.  825;  Woodside  v.  Vasey,  142 
Fed.  617;  Cushman  v.  Atnador,  etc. 
Co.  118  U.  S.  58.  ,30  L.  ed.  72,  6  Sup. 
Ct.  Rep.  926;  Lehigh  M.  Co.  v.  Kelly, 
160  U.  S.  336,  40  L.  ed.  444,  16  Sup. 
Ct.  Rep.  307;  Lake  Co.  Comrs.  v. 
Dudley,  173  U.  S.  250,  43  L.  ed.  684, 

19  Sup.  Ct.  Rep.  398;  Crawford  v. 
Neal,  144  U.  S.  593,  36  L.  ed.  552,  12 
Sup.  Ct.  Rep.  759. 

16 Jones  V.  League,  18  How.  81.  15 
L.  ed.  263. 

mVilliams  v.  Nottawa,  104  U.  S. 
211,  26  L.  ed.  720;  Bernards  Twp.  v. 
Stebbens,  109  U.  S.  354,  27  L.  ed. 
961,  3  Sup.  Ct.  Rep.  261. 

isFountain  v.  Angelica,  12  Fed.  9. 

20  Bliitchf.   448. 

ifljones  V.  League,  18  How.  81,  15  L. 
od.  263;  Crawford  v.  Neal,  144  U.  S. 
593.  36  L.  552.  12  Sup.  Ct.  Rep.  759; 
Lehigh  M.  Co.  v.  Kelly,  160  U.  S.  336, 
40  L.  ed.  444,  16  Sup.  Ct.  Rep.  307; 
Dickerman  v.  Northern  T.  Co.  176  U. 
S.  192,  44  L.  ed.  431,  20  Sup.  Ct.  Rep. 
311;  De  Laveaga  v.  Williams,  5 
Sawy.  575,  Fed.  Cas.  No.  3,759;  Neal 


v.  Foster,  36  Fed.  41,  13  Sawy.  236; 
Alkire  Gro.  Co.  v.  Richesin  91  Fed. 
84;  Willitt  v.  Baker,  133  Fed.  937; 
Cole  V.  Philadelphia,  etc.  Ry.  140 
Fed.  944;  Slaughter  v.  Mallett,  141 
Fed.   282. 

1  Blair  v.  Ohioago,  201  U.  S.  400. 
50  L.  ed.  801,  26  Sup.  Ct.  Rep.  427. 

2Foote  v.  Hancock,  15  Blatchf.  346, 
Fed.  Cas.  No.  4,911;  McCall  v.  Han- 
cock,  10  Fed.   8,  20  Blatchf.   344. 

sBlackburn  v.  Selina,  etc.  R.  R.  2 
Flipp.  538.  Fed.  Cas.  No.  1,467;  Ash- 
ley V.  Board  of  Superv.  83  Fed.  537, 
27  C.  C.  A.  587. 

4Irvine  Co.  v.  Bond,  74  Fed.  854. 

5 Smith  V.  Kernochen,  7  How.  215, 
12  L.  ed.  666. 

GFarmington  v.  PilUbury.  114  U.  S. 
143,  29  L.  ed.  116,  5  Sup.  Ct.  Rep. 
809;  Lehigh  M.  &  M.  Co.  v.  Kelly, 
160  U.  S.  335,  40  L.  ed.  447,  16  Sup. 
Ct.  Rep.  311;  Mattocks  v.  Baker,  2 
Fed.  457 ;  Hawley  v.  Kepp,  2  Flipp. 
178.  Fod.  Cas.  No.  6.249. 

^Provident  Sav.  Soc.  v.  Ford,  114 
U.  S.  641,  29  L.  ed.  261,  5  Sup.  Ct. 
Rep.  1104:  Oakley  v.  Goodnow.  118  C. 
S.  44,  30  L.  od.  6h  6  Sup.  Ct.  Rep.  944 ; 
I-eather,  etc.  Bank  v.  Cooper.  120  U.  S. 
781,  30  L.  ed.  816.  7  Sup.  Ct.  Rep.  777 ; 


184 


Procedure]  CITIZENSHIP    OF    NATIONAL    BANKS.  §   24    [a] 

recently  that  the  joinder  of  an  obviously  sham  party  to  defeat  a  right  of 
removal  will  not  be  permitted  to  accomplish  that  result. »  The  existence 
of  an  agreement  to  reconvey  is  evidence  of  the  fictitious  character  of  a 
transfer.9  A  change  of  residence  without  intent  to  change  domicil  per- 
manently is  evidence  of  merely  colorable  scheme  to  impose  upon  Federal 
jurisdiction.! 0  But  if  a  change  of  residence  is  bona  fide,  Federal  juris- 
diction is  not  defeated  by  the  fact  that  it  was  for  the  very  purpose  of 
creating  that  jurisdiction.!  i 

To  show  a  stockholder's  suit  on  behalf  of  a  corporation  collusive,  some 
agreement  to  that  end,  direct  or  inferential,  must  be  proved.12 

§  24.     National  banks  regarded  as  citizens  of  State  for  jurisdic- 
tional purposes. 

All  national  banking  associations  established  under  the  laws  of 
the  United  States  shall,  for  the  purpose  of  all  actions  by  or  against 
them,  real,  personal,  or  mixed,  and  all  suits  in  equity,  be  deemed 
citizens  of  the  States  in  which  they  are  respectively  located ;  and  in 
such  cases  the  circuit  and  district  courts  shall  not  have  jurisdiction 
other  than  such  as  they  would  have  in  cases  between  individual  citi- 
zens of  the  same  State. "^^^  The  provisions  of  this  section  shall  not 
be  held  to  affect  the  jurisdiction  of  the  courts  of  the  United  States 
in  cases  commenced  by  the  United  States  or  by  direction  of  any 
officer  thereof,  or  cases  for  winding  up  the  affairs  of  any  such 
bank.f^J 

Act  of  Aug.  13,  18S8,  §  4,  25  Stat.  436,  U.  S.  Comp.  Stat.  1901,  p.  514. 

[a]     Denial  of  jurisdiction  of  circuit  and  district  courts. 

This  law  in  effect  repeals  the  provisions  of  R.  S.  §  563,  par.  15,  giving 
jurisdiction  of  actions  by  and  against  national  banks  to  the  district 
courts  and  of  R.  S.  §  629,  par.  10,  giving  similar  jurisdiction  to  the  cir- 
cuit courts.  It  also  supersedes  the  provision  of  the  earlier  law  of  1882,i5 
imposing  somewhat  the  same  limitation  on  Federal  jurisdiction.  The 
venue  of  suits  by  national  banks  against  the  comptroller  is  provided  by 

Carson  v.  Dunham,  121  U.  S.  426,  30  3458.     That  law  provided  that  juris- 

L.  ed.  992,  7  Sup.  Ct.  Rep.   1030.  diction   of   suits    by   or   against    na- 

SBoatmen's  Bank   v.    Fritzlen,    135  tional    banks    "except    suits   between 

Fed.  650,  68  C.  C.  A.  288.  them  and  the  United  States,  its  of- 

sCoffin   V.  Haggin,   11    Fed.   224,  7  ficers  and  agents,  shall  be  the  same 

Sawy.  509.  as.    and   not   other   than,   the   juris- 

10 Alabama,   etc.   R.   R.    v.    Carroll,  diction  for  suits  by  or  against  banks 

84  Fed.  780,  28  C.  C.  A.  207.  not  organized  under  any  law  of  the 

iiWeiner  v.  Louisville  W.  Co.  1.30  United  States  which  do  or  might  do 

Fed.  244.  banking  business  where  such  national 

I2]\lill3  v.  Chicago,  143  Fed.  430.  banking    association     may     be    doing 

15 Act  July  12,  i882,  c.  290,  §  4,  22  business  when  such  suits  may  be  be- 

Stat.  163,  U.  S.  Comp.  Stat.  1901,  p.  gun."     See  Union  Xat.  Bank  v.  Mil- 

185 


§  24   [a] 


FEDERAL    JURISDICTION    IN    GENERAL. 


[Code  Fed. 


another  enactment. is  The  enactment  does  not  affect  diverse  citizenship 
as  a  ground  of  Federal  jurisdiction,  but  still  permits  a  national  bank  lo- 
cated in  one  State  to  sue  a  citizen  of  another,  although  the  phrase  "be- 
tween individual  citizens  of  the  same  State"  is  not  happily  chosen  to  ex- 
press that  intent. 1"  The  object  was  to  place  national  banks  in  the  same 
position  as  citizens  of  the  State  where  located,  as  respects  Federal  juris- 
diction. Previously,  by  virtue  of  their  Federal  charter,  actions  to  which 
they  were  parties  were  deemed  to  arise  under  the  Federal  laws  and  t(y  be 
Federally  cognizable  originally,  and  by  removal,i8  and  regardless  of  the 
amount  involved. is  But  this  is  no  longer  true.20  Since  jurisdiction  in  a 
suit  between  a  national  bank  and  a  citizen  of  another  State  now  rests  upon 
diverse  citizenship,  judgment  in  the  circuit  court  of  appeals  thereon  is 
final.  1  B'Jt  where  a  suit  is  incident  to  the  winding  up  of  a  national  bank 
or  brought  by  the  United  States  or  its  officer  under  the  latter  portion  of 
the  above  law,  jurisdiction  exists  because  the  case  is  one  arising  under 
Federal  law  and  appeal  lies  to  the  Supreme  Court. 2  Of  course  if  an  ac- 
tion to  which  a  national  bank  is  party  is  one  arising  under  the  Federal 
Constitution  treaties  and  laws,  it  is  of  Federal  cognizance,  just  as  much 
as  though  between  other  parties. ^  Suits  against  receivers  respecting  the 
administration  of  his  trust  are  deemed  suits  arising  under  the  Federal 
laws  and  of  Federal  cognizance  either  originally,*  or  by  removal. 5  Under 
this  section  a  State  court  may  issue  mandamus  to  allow  a  stockholder 
access  to  a  national  bank's  books. 6  National  banks  may  be  sued  in 
the  local  State  courts^  even  though  a  receiver  has  been  appointed  by  the 
comptroller. 8     But  by  R.  S.  §  5242,  no  attachment,  injunction  or  execution 


ler,  15  Fed.  703;  Whittemore  v. 
Amoskeag  Nat.  Bank,  134  U.  S.  527, 
33  L.  ed.  1002,  10  Sup.  Ct.  Rep.  592. 

16  See  post,  §  415. 

1 'Petri  V.  Commercial  Nat.  Bank, 
142  U.  S.  651 ;  35  L.  ed.  1144,  12  Sup. 
Ct.  Rep.  325;  Whittemore  v.  Amos- 
keag Bank,  134  U.  S.  529,  33  L.  ed. 
1002.  10  Sup.  Ct.  Rep.  592;  First  Nat. 
Bank  v.  Forrest,  40  Fed.  705 ;  Osborn 
V.  Bank  of  United  States,  9  Wheat. 
825,  6  L.  ed.  204;  Cummings  v.  Nat. 
Bank,  101  U.  S.  155,  25  L.  ed.  903. 

isPacific  Rv.  Removal  Case^,  115 
U.  S.  1,  29  L.  'ed.  319.  5  Sup.  Ct.  Rep. 
1113. 

ifl Wilson  Co.  v.  National  Bank.  103 
U.  S.  776,  26  L.  ed.  488. 

20Ex  parte  Jones,  164  U.  S.  693,  41 
L.  ed.  602,  17  Sup.  Ct.  Rep.  223; 
Wichita  Nat.  Bank  v.  Smith.  72  Fed. 
508,  19  C.  C.  A.  42:  Leather  Mfg. 
Bank  v.  Cooper,  120  U.  S.  781,  30 
L.  ed.  816;  7  Sup.  Ct.  Rep.  777; 
Danahy  v.  Nat.  Bank,  64  Fed.  148, 
12  C.  C.   A.  75. 


lEx  parte  Jones,  104  U.  S.  693,  41 
L.  ed.  602,  17  Sup.  Ct.  Rep.  223. 

2Auten  V.  United  States  Nat.  Bank, 
174  U.  S.  125,  43  L.  ed.  920,  19  Sup. 
Ct.  Rep.  628. 

3Walker  v.  Winsor  Nat.  Bank.  56 
Fed.  76,  5  C.  C.  A.  421;  Auburn  Sav. 
Bank  v.  Haves,  61  Fed.  911;  National 
Bank  of  Com.  v.  Wade,  84  Fed.  10; 
Union  Nat.  Bank  v.  Miller,  15  Fed. 
703. 

■iGrant  v.  Spokane  Nat.  Bank,  47 
Fed.  673;  Gilbert  v.  McNulta,  96  Fed. 
83;  Bartley  v.  Ilayden,  74  Fed.  913. 
See  Wardens,  etc.  v.  Sowles,  51  Fed. 
609. 

sGuthrie  v.  Harkness,  199  U.  S. 
148,  50  L.  ed.  130,  26  Sup.  Ct.  Rpp. 
4. 

6Hot  Springs  School  Dist.  v.  First 
Nat.  Bank,  01  Fed.  417. 

TCasey  v.  Adams,  102  U.  S.  67, 
26  L.  ed.  52. 

sBank  of  Bethel  v.  Pahquio(]ue 
Bank,  14  Wall.  395,  20  L.  ed.  840; 
Calhoun  v.  Lanaux,  127  U.  S.  639,  32 
L.  ed.  297,  8  Sup.  Ct.  Ren.  1345. 


186 


Procedure]  TERRITORIAL    LIMITS    AND     EXTENT.  §  25 

shall  be  issued  against   them  or  their  property  before  final  judgment   in 
any  suit,  action  or  proceeding  in  any  State,  county  or  municipal  court.9 

[b]  Suits  by  United  States  or  its  officers  or  for  winding  up  bank's  af- 
fairs. 
The  Federal  jurisdiction  reserved  by  the  present  law  is  perhaps  broader 
than  under  the  act  of  1882  which  excepted  suits  between  national  banks 
and  the  United  States,  its  officers  and  agents.n  This  jurisdiction  is  at 
least  concurrent  in  the  Federal  court. 12  Suits  by  receivers  to  enforce  a 
stockholders  liability  are  Federally  cognizable  under  the  present  law  be- 
cause they  are  suits  commenced  by  direction  of  an  officer  of  the  United 
States  as  well  as  because  they  are  cases  for  winding  up  the  affairs  of  a 
national  bank.is  So  also  are  other  suits  to  recover  assets  by  such  re- 
ceiver.14  Suits  against  such  receiver  in  the  execution  of  his  duties,  are 
deemed  suits  arising  under  the  Federal  laws  and  therefore  of  Federal 
cognizance.15  The  amount  in  controversy  does  not  effect  the  jurisdic- 
tion.! ^  The  Federal  courts  have  the  same  jurisdiction  as  respects  the 
statutory  agents  as  against  statutory  receivers.iT  The  jurisdiction  of 
Federal  courts  over  a  creditor's  bill  to  reach  assets  conferred  by  act  of 
18761S  is  not  inpaired  by  this  enactment. 1 9 

§  25.     Territorial  limits  and  extent  of  Federal  jurisdiction. 

Within  the  several  States,  the  jurisdiction  possessed  by  the  nation 
is  limited,  though  it  is  also  paramount,  extending  to  all  persons; 
therein  and  ever}'  foot  of  soil."^^^  As  respects  other  places  and 
territories  within  the  dominion  of  the  United  States,  Federal  juri.s- 
diction  is  plenary  and  entire  as  well  as  paramount.  Sovereignty 
is  not  divided  between  State  and  nation,  but  is  complete  in  the 
nation;  and  legislative  power  is  not  limited  to  that  delegated  by 
the  States,  but  is  plenary  as  well  as  exclusive.  Places  within  ex- 
clusive Federal  jurisdiction  fall  into  several  classes.  In  the  first 
are  those  whose  acquisition  the  Constituton  directly  contemplates 

9See  §  907.  isGilbert  v.  McNulta.  06  Fed.  83: 

iiSupra,  note. [a]  Grant  v.  Spokane  Nat.  Bank,  47  Fed. 

l2Lake  Nat.  Bank  v.  Wolfeborough  673.     See  also  supra,  note. [a] 

Sav.  Bank,  78  Fed.  517,  24  C.  C.  A.  leMyers  v.  Hettinger,  94  Fed.  .370. 

195.  37  C.  C.  A.  369:  Brown  v.  Smith,  8S 

13 Armstrong  v.  Trautman,  30  Fed.  Fed.  50.5.     See  Thompson  v.  German 

270;    Stephens    v.    Bernavs.   44   Fed.  Ins  Co.  70  Fed.  892;  Rankin  v.  Herod, 

642;  Yardlcv  v.  Dickson,  47  Fed.  835;  130  Fed.  390. 

Fisher   v.    Yoder,    53    Fed.    505;    Mc-  i^McConville   v.    Gilmour,    30    Fed. 

Cartnov  v.  Earle,  115  Fed.  403,  53  C.  277,  1   L.R.A.  498;   Snohomisli   Co.  v. 

C.  A.  .392.  Puget  Cound  Nat.  Bank.  81  Fed.  518. 

i4Shore    v.    Hepburn.  75  Fed.   113,  isPost,  §  90t. 

21  C.  O.  A.  252;   Thompson  v.  Pool,  isQeorge  v.  Walla<!e,  135  Fed.  286, 

70  Fed.  725;  Price  v.  Abbott,  17  Fed.  68  C.  C.  A.  40. 
500:  Linn  Co.  Nat.  Bank  v.  Crawford, 
69  Fed.  532. 

187 


§   25    [a]  FEDERAL    JURISDICTION    IN    GENERAL.  [Code  Fed. 

and  provides  for,  viz.,  a  place  to  serve  as  a  seat  for  the  national 
government,  and  places  for  forts,  docks,  and  needful  public  build- 
ings.^ In  the  second  are  the  territories  of  the  United  States,  ac- 
quired by  purchase  or  conquest,  to  some  of  which  the  Federal  Consti- 
tution and  laws  have  been  extended  and  to  others  not.^^^  In  the 
third  are  the  reservations  and  lands  occupied  by  Indians  in  their 
tribal  relations  under  the  provisions  of  various  treaties  witli  the 
United  States,  and  which  have  not  become  part  of  any  admitted 
State.'^'^^  In  addition  to  this  fixed  territory  over  which  the  nation 
exercises  a  jurisdiction  unaffected  by  the  careful  delegation  of 
sovereignty  contained  in  the  Constitution,  international  law  recog- 
nizes the  jurisdiction  and  sovereignty  of  a  nation  over  its  public 
minister  or  military  forces  abroad;  it  recognizes  the  merchant  ves- 
sels of  a  nation  upon  the  high  seas  and  its  ships  of  war  in  all  places, 
as  detached  portions  of  its  territory. ^^^^ 
Author's  section. 

[a]     Federal  jurisdiction  within  a  State. 

As  the  Federal  government  emanates  from  the  people,  so  also  it  acts 
directly  upon  them,  and  not  merely  upon  the  States.3  Its  powers  and 
functions  may  be  exercised  and  enforced  through  its  physical  agents  on 
every  foot  of  American  soil.*  It  has  jurisdiction  over  every  foot  of  soil 
within  its  territory. 5  Within  its  sphere  the  Constitution  makes  it  su- 
preme.6  Yet  it  has  only  those  powers  given  by  the  constitution;'  and 
within  the  borders  of  a  State  Federal  jurisdiction  and  power  are  strictly 
limited.  8  The  borders  of  a  State  include  adjacent  waters  within  a  marine 
league  of  the  shore,  and  bays  not  exceeding  two  marine  leagues  in  width 
at  their  mouth. 9  Hence  vessels  lying  in  Boston  harbor  are  within  the 
borders  of  Massachusetts.!  o  Crimes  on  vessels  within  the  limits  of  a 
Stateii  except  upon  the  GreatLakes,i2  are  not  punishable  by  the  Federal 

iSee  §  26.  7 Martin  v.  Hunter,  1   Wheat.  326, 

sMcCulloch  V.  Marvland,  4  Wheat.  4  L.  ed.  07. 

405.  4  L.  ed.  601 ;  Lane  Co.  v.  Oregon,  sMcCulloch  v.  Maryland,  4  Wheat. 

7  Wall,  76.  19  L.  ed.  104;  In  re  Debs,  406,  4  L.  ed.  579;    Green  v.  Biddle,  8 

158  U.  S.  599,  39  L.  ed.  1092,  15  Sup.  Wheat.  88,  5  L.  547;  Gillman  v.  Phila- 

Ct   Rep   911    912  delphJa,  3  Wall.  725,  18  L.  ed.  90. 

4Ex  parte   Si^ebold.   100  U.   S.   395,  'f'^^'Si^^^Y'  Massachusetts,  139 

25  L.  ed  726;     In  re  Neagle.  135  U.  S.  U.  S.  2o8,  35  L    ed.   159,  11   Sup    Ct. 

60,  34  L.  ed.  70,  10  Sup.  Ct.  Rep.  660.  J^f  •  ^^f''    ?««?!«  ^-    Tjler     t    Mich. 

'            ^  ,       iroTT    o   rnr,   on  T       1  212,    /4    Am.     Dec.     /08;     People    v. 

,nS"',^°'o''^^nF-?-^^^??  Vo-  Welch.   141     K    Y.    270,  38  Am.   St. 

1092,    15     Sup.     Ct.    Rep.    911,    912;  ^^^   795^  gg  j^   ^   ^^9,  24  L.R.A.  117. 

United   States   v.   Flournoy,  etc.   Co.  loUnited     States     v.     Bevana,     3 

69  Fed.  893;   United  States  v.  Debs,  Wheat.  337   4  L.  ed.  404. 

64  Fed.  749,  751.  iiSee  ante,  §  15. [b] 

6See  ante,  §  14.  i2See  post,  §  27. 

188 


Procedure]  TERRITORIAL    LIMITS    AND    EXTENT.  §   25   [c] 

statutes  unless  they  would  be  crimes  against  the  United  States   regard- 
less of  locality. 

l_bj  Territories  of  United  States  and  Federal  legislative  power  thereover. 
Over  territories,  forts  etc.,  the  United  States  exercises  a  general  juris- 
diction.!* The  power  of  governing  acquired  territory  belongs  to  the 
United  States  to  the  fullest  extent.is  Its  authority  over  it  is  su- 
preme.16  Congress  has  full  and  exclusive  legislative  power  over  the 
territories.! 7  It  may  establish  territorial  governments  and  invest  them 
with  legislative  powers.!  s  It  has  been  settled  in  recent  decisions  that  the 
Constitution  does  not  ipso  facto  extend  to  newly  acquired  territory  upon 
its  acquisition,  but  that  the  status  of  such  territory  and  the  extent  to 
which  the  provisions  of  the  Constitution  shall  be  deemed  applicable  there- 
in, are  to  be  determined  by  Congress.! 9 

[c]     Indian  territory  and  reservations. 

Indians  living  in  their  tribal  relations  are  deemed  to  be  wards  of  the 
nation;!  in  a  state  of  pupilage. 2  Yet  they  have  a  status  as  dependent 
states,3  and  as  domestic  rather  than  foreign  dependent  nations. ■*  By  vir- 
tue of  this  distinct  and  quasi  alien  status  the  Federal  government  has 
made  treaties  from  time  to  time  with  the  different  tribes  and  nations, 
and  it  is  generally  upon  such  treaties  that  the  civil  and  political  relations 
of  any  given  tribe  primarily  rest.  Being  subject  to  the  paramount  au- 
thority of  CongressS  whose  statutes  may  operate  to  repeal  a  prior  treaty,6 
the  laws  of  Congress  as  well  as  the  Indian  treaties  are  to  be  considered 
in  ascertaining  the  legal  relations  and  obligations  of  tribal  Indians.  The 
establishment  of  reservations  for  tribal  Indians  and  their  maintenance 
thereon  has  long  been  a  feature  of  the  government  policy,  and,  commenc- 
ing with  1882,  a  later  development  has  been  the  partitioning  of  reser- 
vation lands  among  individual  Indians  with  a  view  to  ultimate  obliteration 

i^New  Orleans  V.  United  States,  10  7,  13   L.    ed.    867;     Snow    v.  United 

Pet.  737,  9  L.  ed.  573.  States,  18  Wall.  319,  21  L.  ed.  784. 

i»Amorican    Ins.    Co.   v.    Bales    of  !9Downes    v.    Bidwell.    182    U.    S. 

Cotton,  1  Pet.  543,  7  L.  ed.  242.  279,  45  L.  ed.  1103,  21  Sup.  Ct.  Rep. 

! 6 Late  Corporation,  etc.  of  Church  770;   Hawaii  v.  Mankichi,  190  U.    S. 

V.  United  States,  136  U.  S.  44,  34  L.  197,  47  L.  ed.  1016,  23  Sup.  Ct.  Rep. 

ed.  481,  10  Sup.  Ct.  Rep.  792:   Shive-  787. 

ley  V.  Bowlby,  152  U.  S.  48,    38  L.  ed.  !United  States  v.  Kagama,  118  U. 

331,  14  Sup.  Ct.  Rep.  548.  S.  383,  30  L.  ed.  228,  6  Sup.  Ct.  Rep. 

iTCohen  v.  Virginia,  6  ^^^leat.  428,  1109. 

5  L.  ed.  257;  National  Bank  v.  Yank-  2 Jones  v.  Meehan,  175  U.  S.  10,  44 

ton  Co.  101  U.  S.  133,  25  L.  ed.  1046;  L.  ed.  49,  20  Sup.  Ct.  Rep.  1. 

McAllister  v.  United   States.   141    U.  3 Cherokee  Nation  v.  Georgia,  5  Pet. 

S.  181,  35  L.  ed.  093.  11  Sup.  Ct.  Rep.  17,  8  L.  ed.  25. 

949;  Utter  v.  Franklin,  172  U.  S.  423,  4Roff  v.  Burney,  168  U.  S.  221,  42 

43  L.  ed.  498,  19  Sup.  Ct.  Rep.  183;  L.  ed.  442,  18  Sup.  Ct.  Rep.  GO. 

Simms  v.  Simmis,   175  U.  S.   168,  44  ^Stephens  v.  Cherokee  Nation,  174 

L.  ed.  115,  20  Sup.  Ct.  Rep.  58;  Unit-  U.  S.  480,  43  L.  ed.  1041,  19  Sup.  Ct. 

ed  States  v.  McMillan,  165  U.  S.  511,  Rep.  722. 

41  L.  ed.  805,  17  Sup.   Ct.  Rep.  395.  6The   Cherokee   Tobacco,    11   Wall. 

isMiners  Bank  v.  Iowa,  12  How.  016,  20  L.  ed.  227. 

189 


§  25   [dj  FEDERAL    JURISDICTION    IN    GENERAL.  [Code  Fed. 

of  the  tribal  relation  and  the  Indian  reservations.'  So  long  as  these  reser- 
vations lie  geographically  within  the  limits  of  organized  territories  of  the 
United  States  full  and  paramount  power  is  vested  in  the  nation,  which 
treats  them  as  part  of  such  territory,  or  as  separate  jurisdictions,  in  the 
light  of  its  treaties  and  according  as  one  or  the  other  policy  seemn 
suitable  in  any  given  case  and  for  any  given  purpose. s  Upon  the  ad- 
mission of  anj'  territory  containing  Indian  reservations  within  its  geo- 
grapliical  borders,  the  question  whether  such  reservations  become  part 
of  the  admitted  State  or  whether  by  reservation  of  jurisdiction,  they  remain 
exclusively  subject  to  the  jurisdiction  of  the  nation,  as  in  the  case  of  re- 
served forts.a  must  be  determined  from  the  act  of  admission.  In  some 
instances  Indian  reservations  have  been  excluded  from  the  newly  created 
State  by  force  of  treaties  and  the  act  of  admission,io  in  which  cases 
their  rights  and  status  continue  to  be  controlled  by  acts  of  Congress  and 
existing  treaties.! i  in  others,  where  there  was  no  clear  purpose  to  except 
them,  reservation  lands  have  become  part  of  the  new  State,  enabling 
it  to  punish  crimes  thereon  other  than  by  Indians,!  2  but  generally  not  to 
legislate  for  or  control  the  Indians  themselves.is  In  other  words  the 
jurisdiction  reserved  by  the  United  States  is  over  the  tribes  and  not  over 
the  territory.  The  status  of  both  reservation  Indians  and  reservation 
lands  within  a  State  is  therefore  to  be  ascertained  from  the  treaties,  acts  of 
Congress  and  terms  of  such  States'  admission.! *  In  some  cases  where 
reservation  lands  were  not  excepted  from  the  limits  of  an  admitted  State, 
such  State  has  subsequently  ceded  jurisdiction  thereover  to  the  national 
government.!  B 

[d]     Extraterritoriality — Vessels,    military    forces,    public    ministers. 

By   legal  fiction  public  armed  vessels  of  a  nation   are  regarded  as  de- 
tached parts  of  its  territory,  both  upon  the  high  seas  and  in  the  waters 

^Draper  v.  United  States,  164  U.  S.  S.)    383,   1   Dill.   276,    Fed.    Cas.   No. 

241,  41  L.  ed.  419,  17  Sup.  Ct.  Rep.  16,212:   Benson  v.  United   States,  44 

109.  Fed.  182. 

8See  Ex  parte  Crow  Dog,   109  U.  isUnitod  States  v.  Kagama,  US  U. 

S.  556,  27  L.  ed.  1030,  3  Sup.  Ct.  Rep.  S.  375,  6  Sup.  Ct.  Rep.  1109,  30  L.  ed. 

396 ;  United  States  v.  Rogers,  4  How.  231 ;    United  States  v.  43  Gallons  of 

507,  11  L.  ed.  1105.  iAHiiskey,  93  U.  S.  188.  23  L.  ed.  846; 

^Fort  Leavenworth  R.  R.  v.  Lowe,  United  States  v.  Thomas,  151   U.  S. 

114  U.  S.  538,  29  L.  ed.  264,  5  Sup.  586,  38  L.  ed.  276,  14  Sup.  Ct.  Rep. 

Ct.  Rep.  999.  426. 

10 The   State   has  no   authority   to  !  4 Numerous    cases    deal    with    the 

tax:      The  Kansa-s   Indians,   5   Wall,  taxing   and    other    powers   of   States 

737,  18  L.  ed.    672.      Nor    to  punish  as  against  Indians:    The  New  York 

crimes    therein:      LTnited     States    v.  Indians,  5  Wall.  769,   18  L.  ed.  712; 

Ewing,  47  Fed.  813;  United  States  v.  The  Kansas  Indians,  5  Wall.  737,  18 

PartelTo,  48  Fed.  670.  L.  ed.  667;  Peck  v.  Miami  Co.  4  Dill. 

!ilbid.  371,   Fed.   Cas.   No.   10,891;    Ward  v. 

i2bnitea  States  v.  McBratney.  104  Race  Horse,  163  U.  S.  515,  41  L.  ed. 

U.   S.  624,  26  L.   ed.  870;   uraper  v.  248,  16  Sup.  Ct.  Rep.  1080. 

United   States,   164  U.   S.  243.  41   L.  !5South  Dakota  did  so.     See  Laws 

ed.  420,  17  Sup.  Ct.  Rep.  108;  United  South  Dakota,  1901  c.  105.     See  also 

States    V.    Sa-Coo-da-cot,    1    Abb.    U.  post,  §  155,  where  Congress  conferred 

190 


l-tocedure]  TERRITORIAL    LIMITS    AND    EXTENT.  §   25    [d} 

of  a  foreign  power.i  They  are  not  liable  to  arrest  on  process  for  col- 
lision; 2  nor  can  our  courts  redress  torts  committed  by  them  on  the  high 
seas.3  But  a  public  armed  vessel  of  the  United  States  while  in  the  har- 
bor and  waters  of  a  State  is  so  far  within  State  jurisdiction  that  it  may 
punish  a  crime  committed  on  board.'*  This  exemption  of  public  vessels 
from  local  jurisdiction  does  not  extend  to  prize  ships  or  goods  taken  by 
them  in  violation  of  our  neutrality.5  Private  vessels  of  a  nation  are  also 
deemed  detached  portions  of  its  territory  so  long  as  upon  the  high  seas,6 
but  not  while  in  foreign  waters. ■!■  \\nien  a  private  vessel  enters  foreign 
waters  it  is  deemed  to  submit  itself  to  the  foreign  law  imless  by 
treaty  otherwise  provided. *  By  comity  however  all  matters  of  discipline 
and  things  done  on  board  affecting  only  the  vessel  and  those  on  board 
and  not  disturbing  the  peace  of  the  foreigii  port,  will  be  left  to  the 
authorities  of  the  nation  to  which  the  vessel  belongs. 9  The  Constitu- 
tion confers  upon  Congress  power  to  punish  piracies  and  felonies  upon 
the  high  seas. 10  And  under  its  power  to  regulate  commerce  with  foreign 
nations  it  has  power  to  punish  offenses  on  American  vessels,  though  with- 
in the  jurisdiction  of  a  foreign  power.i  1 

The  international  immunity  from  local  law,  of  foreign  public  ministers 
and  of  foreign  military  forcesi2  within  a  country  by  consent,  attaches 
rather  to  the  person  than  to  the  place,  and  is  not  relevant  to  the  present 
discussion.     However  the  residence  of  a  foreign  minister  is  also  by  fiction 

jurisdiction   on    Federal   courts   over  States   v.  Diekelman,    92  U.   S.   520. 

crimes  therein.  23  L.  ed.  742. 

iSchooner  Exchange  v.  McFaddon,  nVildenhus  Case,  120  U.  S.  11,  30 

7  Cranch,  116,  3  L.  ed.  2S7 ;  The  San-  L-  ed.  5G7,  7  Sup.  Ct.  Rep.  387. 

tissima  Trinidad,  7  Wheat.  283,  5  L.  lOCons.  Art.  I,  §  8,  cl.  10.    See  Ex- 

ed.  4.54.  parte  Byers,  32  Fed.   408. 

^Tiie  Pizarro  v.  Matthias,  19  Fed.  ^^^.-   S-  5346  punishes  assaults  on 

Gas   787  American  vessels  in  bays,  rivers,  etc.. 

3L'Invinoible,   1   AMieat.   252,   4  L.  2,"t^'^\the  Jurisdiction  of  any  State. 

^    g^  ihe  act  of  1890  punishes  onenses  on 

iUnited  States  v.  Bevans,  3  Wheat.  American    vessels    in    Canadian    por- 

336,  4  L.  ed.  404.  ^^«°^  ^^  t^«  gf  f  ^f^^'     ^ee   §  -. 

,'  ,          o      i-     ■             rr.  •    •  1    J        r,  Scc     also     Luit'ed    States   v.    Rogers. 

A.n      f  00!^'^  f'T  .  J""'"^^"^'      ^  150  U.  S.  249,  37  L.  ed.  1071,  14  Sup. 

meat.  283,  5  L.  ed.  454.  ^t.  Rep.  110;  United  States  v.  Ro.ss, 

sCrapo  V.  Kelly,   16  Wall.  610,  21  1  Qall.  624,  Fed.  Cas.  No.  16,196;  Ex 

L.  ed.  430;    United  States  v.  Rogers,  pa,rte   Bvers,    32     Fed.     407;    United 

150  U.  S.  249,  37  L.  ed.  1071,  14  Sup.  states   v.   Keefe.   3  Mason,  475,   Fed. 

Ct.  Rep.  115:    Chinese  Cabin  Waiters  q^^     ^o.     15.509;    United   States   v. 

Case,   13  Fed.  289,  7   Sawy.  536;    In  Hamilton,  1  Mason,  44.3,  Fed.  Cas.  No. 

re  George  Moncan,  14  Fed.  48;    The  15.991.    United   States   v.   Stevens.   4 

E.  B.  Ward,  17  Fed.  459;    IMcDonald  Wash.  C.  C.  547,  Fed.  Cas.  No.  16,394; 

V  Mallory,  77  N.  Y.  552,  33  Am.  Rep.  United  States  v.  Bennett,  3  Hu-hes, 

G68;     ihe  Lamington,  87  Fed.  754.  4^0,    Fed.    Cas.    Ko.    14,574;    United 

nViklenhus    Case.    120    U.    S.    11,  States    v.    Seagrist,    4    Blatchf.    420, 

30  L.  ed.  567,  7  Sup.  Ct.  Rep.  387.  Fed.   Cas.  No.   16.245. 

sSchooner  Exchange  v.  IMcFadden,  i2Schooner  Exchange  v.  McFadden, 

7  Cranch,  144,  3  L.  ed.  287;   United  7  Cranch,  116,  3  L.  ed.  287. 

191 


§   26   [a]  FEDERAL    JURISDICTION    IN    GENERAL.  [Code  Fed. 

deemed  part  of  the  territory  of  his  sovereign.13  The  extraterritorial 
jurisdiction  exercised  by  consular  courts  over  American  citizens  in  foreign 
semicivilized  countries,  is  a  jurisdiction  referable  to  the  person  and  not 
based  upon  any  fiction  of  sovereignty  over  the  place. 

§  26.  —  District  of  Columbia,  government  forts,  docks   and  build- 
ings. 
The  Congress  shall  have  power     ...     to  exercise  exclusive 
legislation  in  all  cases  whatsoever,  over  such  district  (not  exceeding 
ten  miles  square)  as  ma,j,  by  cession  of  particular  States,  and  the 
acceptance  of  Congress,  become  the  seat  of  the  government  of  the 
United  States"^^^  and  to  exercise  like  authority  over  all  places  pur- 
chased by  the  consent'^'^^"'^'^^  of  the  legislature  of  the  State  in  which 
the  same  shall  be,  for  the  erection  of  forts,  magazines,  arsenals, 
dock-yards,  and  other  needfiil  buildings. ^^^'^^^ 
Clause  17  of  §  8,  art  I.,  U.  S.  Constitution. 

[a]     The  District  of  Columbia. 

Pursuant  to  the  foregoing  provision,  Virginia  by  act  of  Dec.  3,  1789, 
ceded  the  county  of  Alexandria  to  the  United  States  and  Maryland  there- 
after ceded  the  county  of  Washington.  These  two  constituted  a  territory 
ten  miles  square  vs^hich  Congress  accepted,  and  organized  into  the  District 
of  Columbia,  and  set  apart  as  the  seat  of  government. i  By  act  of  July  9, 
1846,  and  in  violation  of  the  Constitution, 2  Congress  provided  for  retro- 
cession of  Alexandria  county  to  Virginia  upon  a  majority  vote  of  the 
people  thereof.  And  as  a  majority  voted  for  retrocession,  Virginia  there- 
upon passed  an  act  declaring  the  county  reannexed,  and  ever  since  that 
time  has  assumed  to  exercise  full  jurisdiction  over  it.  Since  1846  the  ter- 
ritorial limits  of  the  District  have  been  deemed  to  include  only  the  county 
of  Washington  ceded  by  the  State  of  Maryland;  and  since  the  political  de- 
partments of  the  Federal  government  and  of  Virginia  recognize  Alexandria 
as  de  facto  a  part  of  Virginia,  the  judicial  department  ascquiesces  in  its 
status  as  such,  and  vfill  not  permit  private  litigants  to  question  it  vicari- 
ously.3  Commencing  with  the  act  of  Feb.  27,  1801,  and  through  number- 
less subsequent  acts  and  parts  of  acts,  Congress  has  "exercised  exclusive 
legislation"  over  the  District.  It  has  never  been  its  policy  to  delegate  any 
legislative  powers  to  inferior  legislative  boards  in  the  District.  By  act 
of  March  3,  1901,  Congress  enacted  an  elaborate  code  of  laws  for  the 
District. 

isUnited  States  v.  Hand.  2  Wash.  lAct  July    16,   1790,   c.   28   §    1,   1 

C.     C.    435,     Fed.     Cas.    No.    15.297;  Stat.  130,  U.  S.  Comp.  Stat.  1901,  p. 

Byrne  v.  Herran,  1  Daly,  (N.  Y.)  346;  1229. 

Res^publica  v.  De  Longchamps,  1  Dall.  ^Phillips  v.   Pavne,   92  U.   S.   130, 

117,   1   L.   ed.   59;     United   States  v.  23  L.  ed.  649. 

Jeffers,   4  Cranch    (C.   C.)    704,   Fed.  sphillips   v.   Payne,  92   U.   S.    130, 

Cas.   No.    15,471.  130,  23  L.  ed.  649. 

192 


Procedure]  TERRITORIAL  LIMITS  AND  EXTENT.  §  26   [c] 

[b]  Jurisdiction  over  forts,  etc.,  acquired  by  purchase  and  State  consent. 
It  results  from  the  above  provision  of  the  Constitution  that  the  Fed- 
eral government  acquires  exclusive  jurisdiction  where  the  purchase  of 
places  for  forts,  arsenals,  etc.,  is  with  the  consent  of  the  local  State  legis- 
lature.5  To  such  consent  a  stipulation  may  be  attached  that  State  civil 
and  criminal  process  may  be  served  in  the  purchased  places,^  and  such  con- 
dition has  usually  been  attached.  7  It  has  been  doubted  whether  the  United 
States  would  have  power  to  purchase  by  local  legislative  consent  where  the 
consent  was  so  qualified  as  not  to  justify  the  exclusive  legislation  of 
Congress  there. »  Consent  is  not  to  be  implied  from  constant  occupancy, 
even  though  a  fort  like  Fort  Niagara  has  been  used  by  the  United  States 
continuously  since  the  treaty  with  Great  Britain.9  W^lere  these  condi- 
tions of  purchase  for  the  designated  objects,  and  legislative  consent,  do 
not  exist,  exclusive  jurisdiction  cannot  be  derived  from  this  clause  of  the 
Constitution,!  0  though  it  may  arise  in  other  ways.n  R.  S.  §  183S,  au- 
thorizes the  President  to  procure  the  assent  of  the  legislature  of  any 
State  where  land  has  been  purchased  for  forts,  etc.,  without  such  assent.i2 

[c]  Jurisdiction  over  forts,  etc.,  acquired  otherwise  than  by  purchase  and 

State  consent. 
The  national  government  has  acquired  lands  for  government  purposes 
in  various  other  ways  than  by  purchase  with  the  consent  of  the  local 
legislature.  Thus  within  States  created  out  of  territory  belonging  to  the 
Federal  government  in  the  beginning  or  since  acquired  from  time  to  time 
Congress  has  frequently,  upon  the  admission  of  such  States,  reserved  such 
public  lands  from  sale  as  it  deemed  necessary,  for  forts,  arsenals,  light- 
houses, etc.i4  Again,  it  is  settled  that  the  United  States  may  acquire 
lands  within  the  States  for  public  purposes  by  condemnation  in 
the  Federal  court,  or  in  the  local  State  court  with  the  State's  consent.is 
And  the  power  of  the  United  States  to  acquire  land  in  different  States  by 
direct  purchase  from  the  owners  without  legislative  consent,  is  now  con- 

Bij'ort  Leavenworth  R.  R.  v.  Lowe,  House,  39  Fed.  694;   Com.  v.   Clary, 

114  U.  S.  538,  29  L.  ed.  204,  5  Sup.  8  Mass.  72. 

Ct.  Rep.  999.  sUnited  States  v.  Cornell,  2  Mason, 

6By  R.   S.    §  4662,  it  is  expressly  60,  Fed.  Ca,s.  No.  14,867. 

provided  that  a  cession  of  jurisdic-  sPeople  v.  Godfrey,  17  Johns.  225. 

tion     over     places     for     lighthouses,  loFt.  Leavenworth  R.  R.  v.  Lowe, 

beacons,    public    piers   or   landmarks  114  U.  S.  525,  5  Sup.   Ct.  Rep.  995, 

shall  be  deemed  sufficient  though  it  29  L.  ed.  264;   In  re  Kelly,  71   Fed. 

reserves  such  right  to  serve  process;  549. 

and  that  if  it  be  not  reserved  by  the  uSee  infra,  nate.Cc] 

ceding  State,  it  shall  nevertheless  be  isUnited  States  v.  Tucker,  122  Fed. 

deemed  to  exist.     See  Hamburg,  etc.  518. 

S.  S.  V.  Grube,   196  U.  S.  408,  49  L.  i^See  Umited  States  v.  Bateman,  34 

ed.  529,  25  Sup.  Ct.  Rep.   352,   hold-  Fed.  86,  13  Sawy.  212. 

ing   that   New    Jersey    reserved    the  i^Kohl  v.  United  States,  91  U.  S. 

operation  of    its    laws    over  Sandy  367,  23  L.  ed.  449;    United  States  v. 

Hook.  Jones,   109  U.   S.  513,  519,  27  L.  ed. 

'United  States  v.  Cornell.  2  Mason,  1015,  3  Sup.  Ct.  Rep.  346;    Matter  of 

60,  Fed.  Cas.  No.  14,867;    Martin  v.  Petition  of  United  State.s,  96  N.  Y. 
Fed.  Proc— 13.                               193 


§  26   [c]  FEDERAL   JURISDICTION   IN   GENERAL.  [Code  Fed. 

ceded  though  probably  this  mode  of  purchase  was  not  thought  of  at  the 
time  of  the  adoption  of  the  Constitution.!  6  As  respects  territory  acquired 
in  modes  such  as  the  foregoing,  and  other  than  by  purchase  with  local 
legislative  consent,  it  is  plain  that  the  Constitution  does  not  confer  upon 
Congress  a  right  of  exclusive  legislation.  As  respects  all  such  lands  the 
United  States  has  undoubtedly  the  rights  of  a  proprietor.  The  States  may 
not  tax  them;  nor  in  any  other  way  impair  or  burden  their  use  by  the  Fed- 
eral government  for  national  purposes; i7  as  by  punishing  a  Federal  officer 
in  a  national  soldiers'  home  for  violation  of  a  State  oleomargarine  law.is 
But  unless  the  State  by  some  affirmative  legislative  act  cedes  its  sovereign- 
ty and  jurisdiction,  the  United  States  has  merely  its  rights  as  a  pro- 
prietor,! 9  coupled  of  course  with  the  paramount  rights  which  as  a  nation 
it  possesses  as  against  the  States  and  all  private  owners;  and  crimes  there- 
on are  pmiishable  by  the  State.20. 

It  is  settled  however  that  a  State  legislature  may  grant  or  cede  to  the 
national  government  full  sovereignty  and  jurisdiction  over  lands  acquired 
witliin  the  State,  in  the  foregoing  ways;  and  that  it  may  attach  to  such 
grant  of  sovereignty  stipulations  broader  than  those  permissible  upon  ac- 
quisition by  purchase  and  consent.  It  may  in  fact  Impose  any  conditions 
not  inconsistent  with  the  effective  use  of  the  property  for  the  intended 
public  purpose.!  Reservation  of  a  right  to  serve  civil  and  criminal  process 
in  the  ceded  place  is  very  generally  made. 2  The  reservation  by  Kansas 
of  a  right  to  tax  railroad,  bridge,  and  other  corporations,  their  franchises 
and  property  at  Fort  Leavenworth  which  the  United  States  owned  prior 
to  Kansas  statehood  and  omitted  to  reserve  on  admitting  Kansas  to  the 
union,  has  been  upheld. 3  New  York  accompanied  a  cession  of  State  lands 
and  jurisdiction  with  a  condition  protecting  canal  uses  of  the  land.* 
Nebraska  ceded  jurisdiction  over  government  forts  upon  the  condition 
that  public  roads  thereon  might  be  kept  open  and  in  repair.  5  New  York 
ceded  jurisdiction  over  the  Brooklyn  navy  yard  on  condition  that  the 
United  States  pay  an  accrued  street  assessment.6  A  reservation  by  the 
Ohio  legislature  of  the  right  of  inmates  of  Federal  soldier's  asylum  to  vote 

227;    Chappell  v.  United  States,  160  Ct.  Rep.  999;  Hamburg  A.  S.  S.  Co. 

U.  S.  510,  40  L.  ed.  514,  16  Sup.  Ct.  v.  Grube,  196  U.  S.  408,  49  L.  ed.  529, 

Rep.  400.  25  Sup.  Ct.  Rep.  352;  United  States 

! 6 Fort  Leavenworth  R.  R.  V.  Lowe,  v.   Carter,  84  Fed.  624;   In  re  Ladd, 

114  U.  S.  539,  29  L.  ed.  264,  5  Sup.  74  Fed.  31;  United  States  v.  Tucker, 

Ct.  Rep.  998.  122    Fed.    518;    Chicago,   etc.   Ry.   v. 

iTFort  Leavenworth  R.  R.  v.  Lowe,  McGlinn,  114  U.  S.  542,  29  L.  ed.  270, 

114  U.  S.  539,  29  L.  ed.  264,  5  Sup.  5  Sup.  Ct.  Rep.  1006. 

Ct.  Rep.  1002,  1003.  2See  In  re  Ladd,  74  Fed.  38,   and 

isQhio  V.  Thomas,   173  U.   S.  282,  cases  there  cited. 

43  L.  ed.  701,  19  Sup.  Ct.  Rep.  455.  sPort  Leavenworth  R.  R.  v.  Lowe, 

isPeople  V.  Godfrey,  17  Johns.  225;  114  U.  S.  538,  29  L.  ed.  270,  5  Sup.  Ct. 

United   States   v.   Bateman,   34   Fed.  Rep.  997. 

86.  4The  Fort  Porter  Mil.  Reserv.  16 

2  0United   States    v.    Bateman,   34  Ops.  Atty.  Gen.  592. 

Fed.  86;  People  v.  Godfrey,  17  Johns.  5ln  re  Ladd,  74  Fed.  35. 

225.  6 Palmer  v.  Barrett,  162  U.  S.  401, 

iFort  Leavenworth  R.  R.  v.  Lowe,  40  L.  ed.  1016,  16  Sup.  Ct.  Rep.  837. 
114  U.  S.  538,  29  L.  ed.  264,  5  Sup. 

194 


Procedure]  TERRITORIAL    LIMITS    AND    EXTENT.  §   26   [d] 

in  the  State  has  been  declared  invalid  by  the  State  supreme  court  as  giving 
the  suffrage  to  persons  not  residents  of  the  State.'?  In  ceding  Fort  Munroe, 
Virginia  reserved  a  right  a  serve  process,  the  use  and  existence  of  a  road, 
and  a  right  of  fishery. 8  A  cession  of  State  jurisdiction  is  obtained  more 
frequently  perhaps  than  a  local  legislative  consent  to  purchase.  Having 
once  ceded  jurisdiction  upon  certain  conditions  the  State  is  without  power 
thereafter  to  impose  other  conditions.9  "Where  the  State  law  merely 
ceded  "jurisdiction"  it  was  held  to  mean  concurrent  and  not  exclusive 
jurisdiction,  in  view  of  the  fact  that  a  place  for  a  soldiers'  home  was 
one  which  did  not  demand  exclusive  Federal  control  and  the  further  fact 
that  the  purchase  of  such  place  was  by  a  corporation  maintained  by  the 
United  States  and  not  by  the  United  States  as  such.io  R.  S.  §  4661  pro- 
vides that  "no  lighthouse,  beacon,  public  piers,  or  landmark,  shall  be  built 
on  any  site  vmtil  cession  of  jurisdiction  over  the  same  has  been  made  to  the 
United  States." n  And  laws  empowering  the  executive  department  to 
purchase  sites  for  government  buildings  frequently  provide  that  no  build- 
ing shall  be  erected  until  the  State  relinquish  its  jurisdiction  so  long 
as  the  United  States  remains  the  owner.i2 

[d]     Exclusive  nature  of  jurisdiction  acquired. 

\Miile  the  Constitution  merely  enumerates  this  power  o  f  exclusive 
legislation  among  the  powers  of  Congress,  the  effect  of  the  provision  is 
to  create  under  the  named  circumstances  a  Federal  jurisdiction  that  is 
ipso  facto  exclusive,  and  not  merely  to  be  made  so  at  the  option  of  Con- 
gress. All  other  authority  than  that  of  Congress  is  excluded,  i^  It  is  not 
necessary  that  the  State  expressly  cede  jurisdiction,  the  result  follows  from 
the  legislative  consent  to  the  purchase,i5  though  a  cession  of  jurisdiction 
is  perhaps  the  commoner  method  pursued,  and  sometimes  there  is  both  a 
consent  and  an  express  cession  of  jurisdiction.!  6  The  Federal  government 
may  acquire  just  as  exclusive  a  jurisdiction  where  ceded  by  the  State 
as  where  derived  under  the  Constitution  by  purchase  and  local  legislative 
consent.  However  the  ceding  State  may  grant  only  a  partial  jurisdiction, 
and  it  has  a  much  larger  power  of  imposing  conditions  than  where  Federal 
jurisdiction  is  acquired  by  purchase  and  eonsent.17 

'Sinks  V.  Reese,  19  Ohio  St.  306,  2  i4Fort  LeaveuAvorth  R.  R.  v.  Lowe, 

Am.  Rep.  397.  114  U.  S.  538,  29  L.  ed.  264,  5  Sup. 

sCrook  V.  Old  Point,  etc.  Hotel  Co.  Ct.  Rep.  999;  United  States  v.  Cor- 

54  Fed.  60G.  nell,  2  Mason,  60,  Fed.  Cas.  No.  14.- 

91n  re  Ladd,  74  Fed.  38.  868;    Sinks  v.  Reese.  19  Ohio  St.  306, 

loin   re  Kelly,  71   Fed.   545.     But  2  Am.  Rep.  397:    People  v.  fJodfrev, 

see  Foley  v.    Shriver,    81    Va.   568;  17  Johns.  225;    Foley  v.  Shriver,  81 

Sinks   V.  Reese,   19   Ohio   St.   306,   2  Va.  568. 

Am.  Rep.   397.  isUnited     States     v.     Cornell.     2 

iiOther  acts  have  permitted  con-  Mason,  60,  Fed.  Cas.  No.  14.867. 

demnation  of  such  sites.     See  Chap-  sRannon  v.   Burnes,   39   Fed.   897; 

pell  V.  United  States,  160  U.  S.  510,  United  States  v.  Tucker.  122  Fed.  518. 

40  L.  ed.  514,  16  Sup.  Ct.  Rep.  400.  i^See  supra,  note.W     Fort  Leaven- 

i2See    Martin    v.   House,    39    Fed.  worth  R.  R.  v.  Lowe,  114  U.  S.  539, 

694.  29  L.  ed.  264.  5  Sup.  Ct.  Rep.  1002; 

195 


§  26  [d]  FEDERAL    JURISDICTION    IN    GENERAL.  [Code  Fed. 

The  fact  that  the  cedhig  statute  speaks  of  retaining  a  "concurrent 
jurisdiction"  in  the  State  where  it  refers  only  to  reservation  of  a  right  to 
serve  process,  will  not  be  construed  as  making  the  Federal  jurisdiction  any- 
thing less  than  exclusive. is  The  reservation  by  a  State  of  a  right  to  serve 
process  does  not  imply  a  coricurrent  right  of  jurisdiction  or  legislation  in 
the  State  over  the  granted  lands,  but  is  merely  a  condition  annexed  to  the 
cession  and  an  agreement  of  the  new  sovereign. 1 9  Though  the  land 
when  purchased  and  ceded  was  subject  to  a  judgment  lien,  process  of 
execution  cannot  issue  from  the  State  court  after  the  title  has  passed 
to  the  United  States2  0  and  prior  taxes  may  not  be  enforced. i  Criminal 
acts  committed  in  such  places  are  crimes  against  the  United  States  and 
not  puiiishable  by  the  State; 2  and  this  is  just  as  true  where  the  juris- 
diction is  ceded,  as  where  acquired  by  purchase  and  consent. 3  The  State 
law  as  to  license  and  sale  of  liquor  is  no  longer  applicable.*  The  burden 
is  on  the  government  to  prove  that  the  offense  was  committed  in  a  place 
within  exclusive  Federal  jurisdiction. 5  But  a  State  court  has  held  that 
perjury  committed  in  a  State  court  held  in  a  building  over  which  the 
United  States  has  acquired  exclusive  jurisdiction  may  be  punished  by  the 
State.6  A  territory  has  jurisdiction  to  punish  crime  within  a  military 
fort,  as  no  question  of  separate  sovereignties  is  there  involved." 

It  is  customary  in  Federal  criminal  laws  to  extend  their  operation  to  the 
high  seas,  and  all  places  within  the  exclusive  jurisdiction  of  the  United 
States.  By  R.  S.  §  539,  and  an  act  of  July  7,  1898,  offenses  in  places  ceded 
to  and  within  the  exclusive  jurisdiction  of  the  United  States  are  made 
punishable  by  the  laws  of  the  State  where  not  within  the  prohibition  of 
any  Federal  law.  Persons  living  in  such  places  do  not  acquire  the  civil 
and  politicnl  privileges,  nor  are  they  subject  to  the  civil  duties  and  obliga- 
tions of  the  inhabitants  of  contiguous  towns  or  other  portions  of  the 
State.8    They  may  not  be  taxed  by  the  ceding  State.9    They  have  no  rights 

Chica<ro,  etc.  R.  R.  v.   McGlinn,   114  Tibbets,  17  Pick.  298;    United  States 

U.  §.'^542,  29  L.  ed.  270,  5  Sup.  Ct.  v.  Meagher,  37  Fed.  875. 

Rep.  1006.  ^See  In  re  Ladd,  74  Fed.  35;  Ben- 

isln  re  Ladd,  74  Fed.  38;   United  son  v.  United  States,  146  U.  S.  325, 

States  V.  Meagher,  37  Fed.  875.  36  L.  ed    991,  13  Sup.   Ct.  Rep.  60; 

iqtt>            ,    c!+„+«    on  Tonri    r,n^    OS  United   States   v.    Meagher,   37    Fed. 

i9Exum  V.  btate,  90   ienn.  oUl,  zo  t.t     1     00  xt    ,    om    «o 

A        o<.    T>„«    7n/i    17   Q    w    107    1^;  875;    State  v.  Mack,  23  Nev.  359,  62 

L.R:a'^8T  %lSkVv'p:;;ue?N35  Am  St.  Rep.  816,  47  Pac.  764;  United 

N.  Y.  336,  31   Am.   St.  Rep.  835.  31  ^^^J^' ^^^''^ii^'^/t,^;^;,?-^- 

K   E.   1017,   17   L.R.A.   720:     United  'J" -^/^q.  V            ?      •"     m   v^ 

States  V.  Cornell,  2  Mason,  GO;    Fed.  „„  United  States  v.  Lewis,  111  Fed. 

Cas.   No     14,867;     Com^  v.   Clary,   8  ^'[-^^^  ^    g^^^^_  ^^  ^^^^             25 

??f  •  Jl'     T  P'"T  .°/  ^ltT-,r^   Am.  St.  Rep.  700,'  17  S.  W.  108,  15 
Mete.  580;    In  re  Ladd,   ^4  Fed.  35;    j^  j^  ^    33.7  ^ 

oo'^'"  li  ?>*''*'oof  iT'^w^^opf^'      '^Te^rito^ry  v.  Burgess,  8  Mont.  67, 
28  Am.  St.  Rep.  922,  17  S.  ^\ .  1064.        ^g  ^^^  ^^^^^  L.R.A.  810. 

20Martin  v.  House,  39  Fed.  695.  sQpinion  of  the  Justices,   1   Mete. 

iBannon  v.  Burnes,  39  Fed.  897.         58O. 

2 United  States  v.  Cornell,  2  sArmorv  at  Harpers  Ferry,  6  Op. 
Mason,  60,  Fed.  Cas.  No.  14,867;  Attvs.  Gen.  577;  The  New  York  Post- 
Corn.  V.  Clary,  8  Mass.  72;  Mitchell  v.    office  Site,  10  Ops.  Attys.  Gen.  35. 

196 


Procedure]  TERRITORIAL  LIMITS  AND  EXTENT.  §  26   [e] 

against  the  contiguous  municipality  or  under  its  ordinances,  lo  The  civil 
laws  of  the  State  governing  the  use  and  enjoyment  of  property  and  not 
in  conflict  with  the  Federal  laws,  continue  in  force  in  the  ceded  place  imtil 
displaced  by  the  new  sovereign,  just  as  in  the  case  of  a  cession  of  lands 
by  a  foreign  power,  n  This  does  not  include  a  State  liquor  law  penal 
in  character.!  2 

[dd]     Cession  to  State  of  jurisdiction  over  Federal  immigrant  stations. 

The  legislation  of  Congress  shows  at  least  one  instance  of  a  cession  of 
jurisdiction  to  the  several  States.  The  alien  immigrant  law  of  1891 
provides  "that  for  the  preservation  of  the  peace  and  in  order  that  arrests 
may  be  made  for  crimes  under  the  laws  of  the  States  where  the  various 
United  States  immigrant  stations  are  located,  the  oflBcials  in  charge  of 
such  stations  as  occasion  may  require  shall  admit  therein  the  proper 
State  and  municipal  officers  charged  with  the  enforcement  of  such  laws, 
and  for  the  purposes  of  this  section  the  jurisdiction  of  such  officers  and  of 
the  local  courts  shall  extend  over  such  stations."i3 

[e]  Purposes  for  which  exclusive  jurisdiction  has  been  acquired  and  ceded. 
There  are  many  cases  in  which  the  Federal  government  has  acquired  lands 
and  a  cession  of  jurisdiction  thereover,  for  the  purpose  of  erecting  forts,i6 
magazines  and  arsenals.i7  armories,i8  dockyards  or  navy  yards.is  Among 
"other  needful  buildings,"  to  accommodate  which  exclusive  jurisdiction  has 
been  acquired  are,  places  for  an  asylum  for  disabled  volunteers,2  0  for  a 
postoffice,!  for  an  appraiser's  building,2  for  postoffice,  Federal  courts,  in 
temal  revenue  offices,  etc., 3  for  maintenance  of  locks  and  dams.*  The  Con- 
stitution creates  an  exclusive  jurisdiction  on  purchase  Avith  legislative  con- 
sent only  where  the  purchase  is  for  the  purposes  enumerated  in  the  constitu- 
tion. Hence  it  has  been  held  that  purchase  by  legislative  consent,  for  a  sol- 
diers' home,  would  not,  ipso  facto,  create  exclusive  jurisdiction,  though  the 
power  of  the  State  to  grant  such  a  jurisdiction  is  conceded.  5    Other  authori- 

loUnited    States   v.   American   W.  298;    Barrett   v.   PaJmer,   135  N.   Y. 

Works  Co.  37  Fed.  748.  340,  31   Am.  St.  Rep.  837,  31   N.  E. 

iiChicago,   etc.   R.   R.  v.  McGlinn,  1018,  17  L.R.A.  723. 

114  U.  S.  .546.  29  L.  ed.  270,  5  Sup.  Ct.  2  0See  Sinks  v  Reese,  19  Ohio  St. 

Rep.  lOOG:   In  re  Ladd,  74  Fed.  40;  306,  2  Am.  Rep.  397.     But  jurisdic- 

Crook  V.  Old  Point,  etc.  Co.  54  Fed.  tion  of  this  Ohio  site  was  afterwards 

609;   Barnett  v.  Barnett,  9  N.  Mex.  relinquished.      See    in    re    Kelly.    71 

212,  50  Pac.  338;  Barrett  v.  Palmer,  Fed.  545;    Ohio  v.  Thomas,  173  U.  S. 

135  N.  Y.  340,  31  Am.  St.  Rep.  837,  282,  43  L.  ed.  701,  19  Sup.  Ct.  Rep. 

31  N.  E.  1018,  17  L.R.A.  723;   Crook  455. 

V.  Old  Point,  etc.  Co.  54  Fed.  608.  iSee  New  York  Postoffice  Site,  10 

i2Tn  re  Ladd,  74  Fed.  40.  Op.  Attys.  Gen.  35. 

13 Section  9.  act  March  3,  1891,  c.  2 Sharon   v.    Hill,   24   Fed.   731,   11 

551,  26  Stat.  1086,  U.  S.  Comp.  Stat.  Sawy.  130. 

1901,  p.  1299.  3Martin   v.    House,    39    Fed.  694; 

isSee  United   States  v.   Cornell,  2  State  v.  Mack.  23  Nev.  365,  62  Am. 

Mason,  60,  Fed.  Cas.  Xo.   14.867.  St.  Rep.  815,  47  Pac.  764. 

i7See  Com.  v.  Clary,  8  Mass.  72.  ^United  States  v.  Tucker,  122  Fed. 

i^Sec  Armory  at  Harpers  Ferry,  6  518. 

Op.  Atty.  Gen.'  577.  sSee  In  re  Kelly,  71  Fed.  545:  In  re 

i9See  Mitchell  v.  Tibbits,  17  Pick.  O'Connor,  37  Wis.  379.     In  Foley  v. 

197 


S   26  [f]  FEDERAL  JURISDICTION  IN  GENERAL.  [Code  Fed. 

ties,  however,  do  not  seem  to  have  applied  the  rule  ejusdem  generis,  to  the 
construction  of  "other  needful  buildings,"  but  have  given  the  phrase  a 
liberal  interpretation,  and  a  late  case  maintains  that  land  for  locks  and 
dams  on  a  canal  is  within  the  phrase.6  So  also  Congress  in  its  legisla- 
tion has  gone  upon  the  theory  that  jurisdiction  might  be  acquired  over 
lands  for  national  cemeteries  under  this  clause  of  the  constitution,  though 
that  is  a  far  cry  from  lands  for  "needful  public  building."  It  has  de- 
clared that  upon  payment  of  the  purchase  price  of  lands  acquired  for  that 
purpose  exclusive  Federal  juri-?diction  shall  arise  thereover; 7  and  that 
after  the  assent  of  a  State  has  been  obtained,  complete  Federal  jurisdiction 
shall  vest  as  provided  in  the  clause  of  the  Constitution  here  under  con- 
sideration, s  So  long  as  the  State's  assent  to  a  purchase  is  accompanied  by 
a  cession  of  jurisdiction  it  is  immaterial  that  the  land  is  not  acquired  for 
"other  needful  buildings,"  in  any  proper  sense  of  that  term.  But  there 
is  no  authoritative  decision  that  lands  purchased  by  consent  for  cemeteries, 
or  for  locks  and  dams  without  any  cession  of  jurisdiction,  pass  to  the 
exclusive  jurisdiction  of  the  nation, 
[f]     Retrocession  of  ceded  lands. 

States  have  often  accompanied  a  cession  of  jurisdiction  over  lands  or 
places  acquired  by  the  United  States  with  the  condition  that  it  .shall  con- 
tinue only  while  the  United  States  shall  be  and  continue  the  owner,io  or 
continue  to  use  the  same.n  It  would  seem  that  in  cases  of  a  cession  of 
jurisdiction,  the  ceded  jurisdiction  necessarily  terminates  when  the  place 
ceases  to  be  used  for  the  granted  purpose. 12  But  where  the  exclusive 
jurisdiction  is  only  to  continue  while  the  premises  are  iised  for  the  des- 
ignated purpose,  State  jurisdiction  reattaches  when  that  use  terminates, 
e.  g.,  where  the  government  leases  the  land  for  market  purposes, is  or  for  a 
hotel.i*  .In  one  case  Congress  relinquished  the  jurisdiction  ceded  for  a 
soldiers'  home.is  The  retrocession  of  Alexandria  county  ceded  by  Vir- 
ginia as  part  of  the  District  of  Columbia  has  already  been  referred  to.is 

§  27.     Federal  jurisdiction  over  crimes  on  great  lakes. 

Every  person  who  shall,  upon  any  vessel  registered  or  enrolled 
under  the  laws  of  the  United  States,  and  being  on  a  voyage  upon 

Shriver,   81    Va.   .572.   and   Sinkes   v.  Palmer  v.  Barrett,  162  U.  S.  402,  40 

Reese,  19  Ohio  St.   306,  2  Am.  Rep.  L.   ed.    1016,   16   Sup.   Ct.   Rep.    837; 

397,  it  was  held  that  exclusive  Fed-  Crook  v.  Old  Point,  etc.  Co.  54  Fed. 

eral  jurisdiction  was  granted  bv  the  606;  United  States  v.  Carter,  84  Fed. 

State.  623. 

eUnited  States  v.  Tucker,  122  Fed.        i2Chicago,  etc.  R.  R.  v.  McGlinn, 

522.  114  U.  S.  545,  29  L.  ed.  271,  5  Sup.  Ct. 

7See  R.  S.  §  4872,  U.  S.  Comp.  Stat.  Rep.  1006. 
1901,  p.  3376,  14  Stat.  400.  1  "Palmer  v.  Barrett.  162  U.  S.  403, 

sSee  R.  S.  §  4882.  U.  S.  Comp.  Stat.  40  L.  ed.  1016,  16  Sup.  Ct.  Rep.  837. 
1901.  p.  3379,  16  Stat.  188.     See  In  re        i4Crook  v.  Old  Point,  etc.  Co.  54 

Kellv.  71  Fed.  551.  discussing  this.  Fed.  604. 

loMartin  v.  House,  39  Fed".  694;  In        1516  Stat.   399.     See   In   re  Kelly, 

re  Ladd,  74  Fed.  35.  71  Fea.  551. 

HBannon  v.  Burnes,  39  Fed.  897;        leSupra,  note.Eal 

198 


Procedure]  LOCAL  LAW   AS  TO  REMEDIES.  S   28 

the  waters  of  any  of  the  great  lakes,  namely,  Lake  Superior,  Lake 
Michigan,  Lake  Huron,  Lake  Saint  Clair,  Lake  Erie,  Lake  Ontario, 
or  any  of  the  waters  connecting  any  of  the  said  lakes,  commit  or  be 
guilty  of  any  of  the  acts,  neglects,  or  omissions,  respectively,  men- 
tioned in  chapter  three  of  title  seventy  of  the  Eevised  Statutes  of 
the  United  States  [defining  and  punishing  crimes  arising  within 
the  maritime  and  territorial  jurisdiction  of  the  United  States],  shall 
upon  conviction  thereof  be  punished  with  the  same  punishments  in 
the  said  title  and  chapter,  respectively,  affixed  to  the  same  offenses 
therein  mentioned,  respectively. 

§  1  of  act  Sept.  4,  1890,  c.  874,  26  Stat.  424,  U.  S.  Cbmp.  Stat.  1901, 
p.  3629. 

At  the  time  of  this  enactment  a  case  was  pending  and  afterwards  de- 
cided by  the  Supreme  Courti  holding  that  Federal  jurisdiction  existed  to 
punish  an  offense  upon  one  of  the  great  lakes  within  the  territorial  juris- 
diction of  the  Dominion  of  Canada,  by  virtue  of  E,.  S.  §  5346,  punishing 
offenses  on  the  "high  seas,  ...  or  in  any  river  .  .  .  within  the 
admiralty  jurisdiction  of  the  United  States  and  out  of  the  jurisdiction 
of  any  particular  state"  on  board  an  American  vessel.  This  was  upon 
the  theory  that  the  great  lakes  may  be  deemed  "high  seas"  under  the 
power  to  regulate  commerce  with  foreign  nations.  Congress  has  power  to 
punish  offenses  on  American  vessels  on  navigable  waters  though  within 
the  territorial  limits  of  a  foreign  nation, 2  and  this  enactment  of  1890  which 
was  probably  suggested  by  observations  contained  in  an  opinion  of  Mr. 
Justice  Brown  at  circuit, 3  is  valid.  The  Federal  jurisdiction  of  crimes  on 
the  great  lakes  and  connecting  waters  is  concurrent  with  the  jurisdiction 
of  Canada  when  committed  within  portions  thereof  upon  the  Canadian 
side  of  the  boundary,  and  with  the  different  States,  upon  the  American 
side.*  Another  section  of  the  act  of  1890  gives  jurisdiction  over  such 
offenses  to  the  circuit  and  district  court. 5 

§  28.     Local  law  as  to  remedies  for  improvements  applies  to  Fed- 
eral occupants. 
When  an  occupant  of  land,  having  color  of  title,  in  good  faith 
has  made  valuable  improvements  thereon,  and  is,  in  the  proper 
action,  found  not  to  be  the  rightful  owner  thereof,  such  occupant 

lUnited   States  v.  Rogers,   150  U.   United  States  v.  Coombs,  12  Pet.  72, 
S.  249,   37  L.   ed.   1071,   14  Sup.  Ct.    9  L-  ed.  1004. 
Rep.    110.       Contra,    see    Ex    parte        ^E^'  P^^**^  B-^'^''^'  ^2  Fed.  410. 

3;B.£U,w  .  N.kerson^70^Fed.  116, 

2Ex  parte    Byers,    32    Fed.    407;        sSee  post,  §  157. 

199 


S  29  FEDERAL  JURISDICTION  IN  GENERAL.  [Code  Fed. 

shall  be  entitled  in  the  Federal  courts  to  all  the  rights  and  remedies, 
and,  upon  instituting  the  proper  proceedings,  such  relief  as  may  be 
given  or  secured  to  him  by  the  statutes  of  the  State  or  Territory 
where  the  land  lies,  although  the  title  of  the  plaintiff  in  the  action 
may  have  been  granted  by  the  United  States  after  said  improve- 
ments were  so  made. 

Act  June  1,  1874,  c.  200,  18  Stat.  50,  U.  S.  Comp.  Stat.  1901,  p.  581. 

§  29.     The  law  applied  in  civil  rights  cases. 

The  jurisdiction  in  civil  and  criminal  matters  conferred  on  the 
district  and  circuit  court  by  the  provisions  of  this  title  [i.  e..  Title 
13,  covering  "The  Judiciary"],  and  of  title  "Civil  Rights,"  and  of 
title  "Crimes,"  for  the  protection  of  all  persons  in  the  United  States 
in  their  civil  rights,  and  for  their  vindication,  shall  be  exercised  and 
enforced  in  conformity  with  the  laws  of  the  United  States,  so  far 
as  such  laws  are  suitable  to  carry  the  same  into  effect;  but  in  all 
cases  where  they  are  not  adapted  to  the  object,  or  are  deficient  in 
the  provisions  necessary  to  furnish  suitable  remedies  and  punish 
offenses  against  law,  the  common  law,  as  modified  and  changed  by 
the  Constitution  and  statutes  of  the  State  wherein  the  court  having 
jurisdiction  of  such  civil  or  criminal  cause  is  held,  so  far  as  the 
same  is  not  inconsistent  with  the  Constitution  and  laws  of  the  Unit- 
ed States,  shall  be  extended  to  and  govern  the  said  courts  in  the 
trial  and  disposition  of  the  cause,  and  if  it  is  of  a  criminal  nature, 
in  the  infliction  of  punishment  on  the  party  found  guilty. 
R.  S.  §  722,  U.  S.  Comp.  Stat.  1901,  p.  582. 

This  provision  was  originally  part  of  the  civil  rights  statutes  of  1866, 
1870.7  It  has  been  said  that  it  does  not  attempt  to  prescribe  the  rule  of 
decision  but  merely  the  forms  of  process  and  remedy; 8  and  that  the  court 
is  at  liberty  to  adopt  the  State  practice  as  to  challenges  to  grand  jurors.9 
The  section  has  been  criticized  as  an  incongruous  and  meaningless  jumble.io 
Congress  has  undoubted  power  to  prescribe  the  procedure  of  Federal  courts 
both  civil  and  criminal,  n  and  to  adopt  the  punishment  for  offenses  against 

7Act,  April  9,  1866,  c.  31,  §  31,  14  sUnited  States  v.  Eagan,  30  Fed. 
Stat.  27;  Act,  May  31,  1870,  c.  114,    008. 

§  18,   16  Stat.  144.  loper    Clifford,    J.,    dissenting    in 

sin  re  Stupp,  12  Blatchf.  501,  Fed.  Tennessee  v.  Davis,  100  U.  S.  299, 
Cas.  No.  13,563.  25  L.  ed.  663. 

iiPost,  §  579. 
200 


I 


Procedure]  THE   LAW   APPLIED   IN   CIVIL   CASES.  §  29 

Federal  laws,  that  is  prescribed  by  the  States  in  like  cases.  But  if  the 
section  is  an  attempt  to  provide  the  substantive  law  to  be  administered 
or  the  rule  of  decision  in  the  cases  referred  to,  it  would  seem  ineffective 
in  denying  the  general  principles  by  which  the  Federal  courts  must  be 
governed.  12 

"Ante,   §   10. 


201 


CHAPTER  2. 

THE  SUPREME  COURT. 

§  31.     References  to  code  sections  not  herein  included. 

§  32.    Number  of  justices. 

§  33.     Precedence  of  associate  justices. 

§  34.     Vacancy  in  the  office  of  chief  justice. 

§  35.     Original  and  appellate  jurisdiction  of  Supreme  Court  declared. 

§  36.     When  original  jursidiction  exclusive  and  when  not. 

§  37.    Appellate  jurisdiction. 

§  38.     On  writ  of  error  to  State  courts. 

§  39.     From  circuit  court  of  appeals. 

§  40.     Questions  certified  up  by  circuit  court  of  appeals  for  instruction. 

§  41.     Review  by  certiorari  of  decisions  made  final  in  the  circuit  court  of 
appeals. 

§  42.     Appeals  from  circuit   and  district  courts  direct  to   Supreme  Court. 

§  43.     Anti-trust  cases  appealable  direct  from  circuit  to  Supreme  Court. 

§  44.    Anti-trust  cases  certified  to  Supreme  Court  on  division  of  opinion. 

§  45.     Appeal  from  coiirt  of  appeals  of  District  of  Columbia. 

§  46.     Certiorari  from   Supreme  Court  to  court  of  appeals  of  District  of 
Columbia. 

§  47.     Appeal  in  cases  relating  to  highways  in  the  District  of  Columbia, 

§  48.     From  supreme  court  of  Territories. 

§  49.     When   a  Territory  becomes   a   State  after  judgment   in  Territorial 
court. 

§  50.     Review   of  judgments   of  district  courts  in   cases  transferred   from 
Territorial  courts. 

§  51.     Appeals  from  Indian  Territory  direct  to  Supreme  Court. 

§  52.     From  Alaska  district  court. 

§  53.     Question  certified  in  Alaska  cases  on  which  instructions  desired. 

§  54.     Appeals  from  Territory  of  Hawaii. 

§  55.     Appeals  from  Porto  Rico  supreme  and  district  courts. 

§  56.     Error  and  appeal  from  Supreme  Court  of  Philippines. 

§  57.    Appeal  from  Oklahoma  supreme  court. 

§  58.     Appeals  from  Court  of  Claims. 

§  59.     Writ  of  error  on  conviction  of  capital  crime. 

§  GO.     Direct  appeal  in  suits  for  failure  to  alter  bridge  obstructing  navi- 
gation. 

§  61.     Appeal  in  bankrupt  cases. 

§  62.    Appeal  in  proceedings  under  name  of  Commerce  Commission. 

202 


Procedure]  PRECEDENCE  OF  ASSOCIATE  JUSTICES.  §  33 

§  63.    — in   proceedings    by   petition    to    enforce    Commerce    Commission's 

orders. 
§  64-    — in  suits  against  the  Commission  to  suspend  orders,  etc. 
§  65.     Certiorari  in  trademark  cases. 
§  66.     Appeals  in  cases  from  court  in  China. 

§  31.     References  to  code  sections  not  herein  included. 

Elsewhere  in  this  code  will  be  found  provisions  respecting  the 
allotment  of  justices  of  the  Supreme  Court  to  different  circuits;^ 
the  appointment,  tenure  and  salaries  of  judges.^  The  matter  of 
appellate  procedure  in  general;^  the  determination  of  a  cause  and 
execution  of  mandate,^  and  other  kindred  subjects,  are  contained  in 
subsequent  chapters.  Elsewhere  also  is  discussed  the  power  of  the 
Supreme  Court  to  issue  mandamus  and  prohibition  f  to  make  rules 
for  equity  admiralty  and  bankruptcy  practice,  etc.,^  and  issue  writs.'' 
The  clerks,  marshals,  reporters  and  other  officers  of  the  Supreme 
Court  are  referred  to  in  subsequent  chapters.*  The  law  as  to  appeal 
from  the  court  of  private  land  claims  is  omitted  because  temporary 
in  character,  and  because  the  work  of  that  court  is  now  virtually 
completed. 

Author's  section. 

§  32.    Number  of  Justices. 

The  Supreme  Court  of  the  United  States  shall  consist  of  a  chief 
justice  and  eight  associate  justices,  any  six  of  whom  shall  constitute 
a  quorum. 

R.  S.  §  673,  U.  S.  Corap.  Stat.  1901,  p.  558. 

As  originally  constituted  the  Supreme  Court  consisted  of  seven  members, 
but  §  1  of  an  act  of  April  10,  18G9,2o  which  became  R.  S.  §  673,  supra,  in- 
creased the  number  to  nine.  Another  section  provides  for  adjournment  in 
case  a  quorum  is  not  presenti  but  a  quorum  has  all  the  powers  of  a  full 
bench.  Hence  a  minority  of  the  court  may  constitute  a  majority  of  a 
quorum  and  and  render  a  binding  decision. 

§  33.    Precedence  of  Associate  Justices. 
The  associate  justices  shall  have  precedence  according  to  the  dates 

iPost,  §  101.  ePost,  §  802,  803. 

2Post,  §§  467,  469.  7Post,    §    841. 

sPost,  §  1886,  et  seq.  sPost,  §  558,  et  seq;  §  613.  ^^t  seq. 

*Post,  §  2105,  et  seq.  20C.  22,  16  Stat.  44. 

sPost,  §  844.  iSee  Post  §  305. 

203 


§  34  THE  SUrilEME   COURT.  [Code  Fed. 

of  their  commissions,  or,  when  the  commissions  of  two  or  more  of 
them  bear  the  same  date,  according  to  their  ages. 
R.  S.  §  674,  U.  S.  Comp.  Stat.  1901,  p.  558. 
This  was  part  of  §  1  of  the  original  judiciary  act.2 

§  34.     Vacancy  in  the  office  of  Chief  Justice. 

In  case  of  a  vacancy  in  the  office  of  chief  justice,  or  of  his  in- 
ability to  perform  the  duties  and  powers  of  his  office,  they  shall 
devolve  upon  the  associate  justice  who  is  first  in  precedence,  until 
such  disability  is  removed,  or  another  chief  justice  is  appointed  and 
duly  qualified.  This  provision  shall  apply  to  every  associate  justice 
Avho  succeeds  to  the  office  of  chief  justice. 
R.  S.  §  675,  U.  S.  Comp.  Stat.  1901,  p.  558. 

This  was  part  of  §  1  of  the  original  judiciary  acts  and  also  of  §  1  of  an 
act  of  1868.4 

§  35.     Original  and  appellate  jurisdiction  of  Supreme  Court  de- 
clared. 

In  all  cases  affecting  ambassadors,  other  public  ministers  and 
consuls,  and  those  in  which  a  State  shall  be  party,  the  Supreme 
Court  shall  have  original  jurisdiction.^^^  In  all  the  other  cases 
before  mentioned,®  the  Supreme  Court  shall  have  appellate  juris- 
diction, both  as  to  law  and  fact,  with  such  exceptions  and  under 
such  regulations  as  the  Congress  shall  make.'^''^ 
U.  S.  Const.  Art.  III.,  §  2,  cl.  2. 

[a]     Original  jurisdiction — not  exclusive,  but  may  not  be  enlarged. 

This  clause  does  not  in  terms  make  the  original  jurisdiction  exclusive, 
and  it  is  settled  that  Congress  may  confer  jurisdiction  on  inferior  courts 
over  the  cases  above  enumerated  and  then  appellate  jurisdiction  on  the 
Supreme  Court.  7  In  other  words  a  mere  affirmative  grant  of  original 
jurisdiction  does  not  make  it  exclusive,  or  negative  a  right  in  Congress 
to  confer  appellate  jurisdiction. s     Nor  does   it  negative  the   existence   of 

2Act,  Sept.  24,  1789,  c.  20,  1  Stat.  447;    Gittings    v.    Crawford,    Taney, 

73.  Dec.  1,  Fed.  Cas.  No.  5,465.     See  ante, 

3Act  Sept.  24,  1789,  c.  20,  1  Stat.  §  2.[n 
73.  sThe  contrary  was  declared  in  Mar- 

4Act  June  25,  1868,  c.  81,  15  Stat,  bury  v.  Madison,  1   Cranch,  173-176, 

80.  2  L.  ed.  60.     But  its  dictum  has  been 

6Ante,  §  2.  qualified  by  later  cases:      Cohens  v. 

7  Burs  V.  Preston,  111  U.S.  256,  277,  Virginia.  6  Wheat.  397,  5  L.  ed.  289; 

260,   28  L.  ed.  421,  4   Sup.  Ct.  Rep.  United   States  v.   Ortega,  11    Wheat. 

407,  419:  Ames  v.  Kansas,  111  U.  S.  472,  6  L.  ed.  .523.     See  U.  S.  Notes, 

469,  28  L.  ed.   490,   4  Sup.  Ct.  Rep.  Book  I.  p.  123. 

204 


Procedure]  ORIGINAL  AND  APPELLATE  JURISDICTION.  §  35   [b] 

jurisdiction  in  a  State  court.9  It  is  equally  well  settled  that  the  original 
jurisdiction  of  the  Supreme  Court  as  defined  by  the  Constitution,  may  not 
be  enlarged  by  Congress.  The  affirmative  grant  of  original  jurisdiction 
in  certain  cases  negatives  its  existence  in  all  other  eases.io  Hence,  as  the 
Supreme  Court  has  no  original  prize  jurisdiction,!  i  intervenors,  not  parties 
below,  cannot  come  in  there, 12  and  a  claim  cannot  be  interposed  there  for 
the  first  time.13  The  enumeration  of  cases  affecting  ambassadors,  etc., 
and  cases  to  which  a  State  is  party,  has  reference  to  the  grant  of  jurisdic- 
tion over  such  cases  contained  in  the  preceding  clause  of  the  same  section,i4 
and  does  not  enlarge  that  grant. 

[b]     Appellate  jurisdiction  regulated  by  Congress. 

Whether  appellate  jurisdiction  could  have  been  exercised  by  the  Supreme 
Court  in  the  absence  of  any  legislation  of  Congress  conferring  power,i6  has 
never  been  a  practical  question,  since  Congress  has  legislated  very  fully 
upon  the  subject  ever  since  the  judiciary  act  of  1789.  Any  enumeration 
by  Congress  of  cases  within  the  Supreme  Courts  appellate  jurisdiction  is 
the  equivalent  of  excepting  non-enumerated  cases  therefrom.iT  Hence 
it  is  true  that.  Congress  having  legislated,  the  Supreme  Court  has  appel- 
late power  only  in  the  cases  provided  for  by  Congress ;  1 8  and  that  where  the 
act  conferring  jurisdiction  of  particular  cases  has  expired,  the  jurisdic- 
tion ceases.!  9  While  the  appellate  jurisdiction  is  derived  from  the  Constitii- 
tion,  yet  the  power  to  regulate  and  limit  it  is  in  Congress  and,  having  been 
assumed  by  Congress  that  body  must  declare  the  right  of  appeal  in  a  given 
case  or  the  right  does  not  exist. 20  The  Constitution  must  confer  capacity 
to  take  jurisdiction  and  an  act  of  Congress  must  supply  the  requisite  au- 
thority.i     The  power  of  Congress  to  confer  appellate  jurisdiction  is  not  re- 

sDelafield  v.  Illinois,  26  Wend.  215,  States    v.    American    B.    T.    Co.    159 

2  Hill,  168.  U.  S.  549,  40  L.  ed.  255.  16  Sup.  Ct. 

lOMarburv   v.   Madison,   1   Cranch,  Rep.  69;  Ex  parte  McCardle,  7  Wall. 

173,  2  L.  ed.  60;  Cohens  v.  Virginia,  513,  19  L.  ed.  264. 
6  Wheat.  396,  5  L.  ed.  257;   United        isUnited  States  v.  Moore,  3  Cranch, 

States  v.  Ferriera,  13  How.  49,  14  L.  173,  2  L.   ed.  397;   United  States  v. 

ed.  42;  United  States  v.  Old  Settlers,  Young.  94  U.   S.  259.  24  L.   ed.   153; 

148  U.  S.  466,  37  L.  ed.  509,  13  Sup.  United   States  v.   Sanges,   144  U.   S. 

Ct.  Rep.  650;   California  v.  Southern  319,  30  L.  ed.  445.  12  Sup.  Ct.  Rep. 

Pac.  Co.  157  IT.  S.  261,  39  L.  ed.  683,  609;  National  Exch.  Bank  v.  Peters. 

15  Sup.  Ct.  Rep.  501 ;  Ex  parte  Yerg-  144  U.  S.  572,  36  L.  ed.  545,  12  Sup. 

er,  8  Wall.  98,  19  L.  ed.  332.  Ct.   Rep.   767;    Colorado,   etc.  M.   Co. 

uThe  Alicia,  7  Wall.  571,  19  L.  ed.  v.  Turck,  150  U.  S.  141,  37  L.  ed.  1030, 


14  Sup.   Ct.   Rep.   35. 


84. 

i2The   William    Bagaley,    5    Wall.  1  s United  States  v.  Boisdore,  8  How. 

412,  18  L.  ed.  591.  121,  12  L.  ed.  1009. 

isWalden  v.  Gratz,  1   Wheat.  300,  2  0Durousseau   v.  United   States,   6 

4  L.  ed.  94.  Cranch.  314.  3  L.  ed.  232;   Ex   parte 

i<See  ante,  §  2.  McCardle,  7  Wall.  512,  19  L.  ed.  264. 

isSee  Wiscart  v.  D'Auchy,  3  Dall.  iDaniels   v.   Railroad   Co.    3   Wall. 

328,  1  L.  ed.  619;  Durousseau  v.  Unit-  254,  18  L.  ed.  226;    American  Con.  Co. 

ed  States,  6  Cranch,  314,  3  L.  ed.  232.  v.   Jacksonville,    etc.   Rv.    148    U.   S. 

i7Durousseau  v.   United   States,  6  372,  37  L.  ed.  486,  13  Sun.  Ct.  Rep. 

Cranch,   314,    3   L.    ed.    232;    United  758. 

205 


§   35    [b]  THE    SUPREME    COURT.  [Code  Fed. 

stricted  to  appeals  from  Federal  courts  established  by  Congress  under  §  1 
of  article  threes  of  the  Constitution.  It  extends  to  specified  cases  and  not 
particular  courts. s  An  important  part  of  that  appellate  jurisdiction  is  over 
State  tribunals. 4  Congress  may  confer  appellate  jurisdiction  upon  the 
Supreme  Court  over  the  territorial  courts  and  over  the  court  of  private 
land  claims,  neither  of  which  is  organized  under  §  1  of  article  three. 5  But 
Congress  cannot  extend  the  appellate  power  of  the  Supreme  Court  beyond 
limits  prescribed  by  the  Constitution,  and  cannot  authorize  it  to  express 
an  opinion  on  a  case  where  its  judicial  power  could  not  be  exercised  or  its 
judgment  carried  into  effect. 6  Hence  under  an  early  law  which  made  de- 
cisions of  the  court  of  claims  merely  advisory  no  appeal  lay  to  the  Supreme 
Court. 7  But  since  the  act  of  March  17,  1866,  its  decisions  are  appealable 
just  as  the  decisions  of  other  courts,  s  The  Supreme  Court  is  a  court  of 
limited  jurisdiction  just  as  are  all  the  other  Federal  courts. 9  No  appeal 
lies  to  the  Supreme  Court  from  a  decision  of  the  Interstate  Commerce  Com- 
mission, lo 

State  laws  may  not  regulate  or  restrain  the  appellate  jurisdiction  of 
the  Supreme  Court  any  more  than  the  jurisdiction  of  other  Federal 
courts.ii  State  laws  may  not  regulate  the  right  of  review  in  the  Supreme 
Court;! 2  nor  make  a  State  decision  final  and  non-reviewable. 1 3 

Appellate  jurisdiction  is  that  jurisdiction  which  revises  and  corrects 
proceedings  in  a  cause  already  instituted  and  does  not  create  that  cause. i^ 
It  would  be  an  exercise  of  original  jurisdiction  for  the  Supreme  Court  to 
issue  mandamus  to  an  executive  officer  of  the  government,  and  Congress 
may  not  authorize  its  issuance  to  such  an  officer  except  in  cases  within 
the  original  jurisdiction  of  the  Supreme  Court  as  above  defined.is  The  is- 
suance of  the  various  writs  to  inferior  courts  is  however  an  exercise  of 

2Ante.  §  8.  148  U.  S.  466,  37  L.  ed.  524,  13  Sup. 

sMartin  v.  Hunter,  1  Wheat.  304,  Ct.  Rep.  666. 

4  L.   ed.   97;   Dodge  v.  Woolsey,    18  '^'Gordon  v.  United  States,  117  U. 

How.  331,  15  L.  ed.  401.  S.  702. 

^Bridge    Prop.    v.    Hoboken    Co.    1  ^United  States  v.  Klein,  13  Wall. 

Wall.   116,   17  L.  ed.  571.     See  post,  145,  20  L.  ed.  525;   United  States  v. 

§  38.  Jones,  119  U.   S.  477,  30  L.  ed.  440, 

5 See  American  Ins.  Co.  v.  356  Bales  7  Sup.  Ct.  Rep.  283. 

of  Cotton,  1   Pet.   511,  546,  7  L.  ed.  9  See  ante,  §  9. 

243;   Bermer  v.   Porter,  9  How.  244,  lointerstate  C.  C.  v.  Atchison,  etc. 

13  L.  ed.  123;  United  States  v.  Coe,  R.   R.   149  U.  S.   265.  37  L.   ed.  727, 

155  U.   S.  86,  39  L.  ed.   76,  15  Sup.  13  Sup.  Ct.  Rep.  837. 

Ct.  Rep.  18;  Hunt  v.  Palao,  4  How.  uSee  ante,  §  5. 

589,  11  L.  ed.  1115.    But  query,  what  i2G«lston   v.   Hoyt,  3  Wheat.   303, 

authority  has  Congress  to  confer  ap-  4  L.  ed.  396;   Boogher  v.  New  York 

pellate  jurisdiction  from  a  territorial  L.  I.  Co.  103  U.  S.  95,  26  L.  ed.  310. 

court  where  a  case  is  not  one  within  is  Wilson  v.  Mason,  1   Cranch,  91, 

the  scope  of  Federal  judicial   power  92,  2  L.  ed.  29. 

as   defined,   ante,   §   2.     Most   if   not  uMarbury  v.   Madison,   1   Cranch, 

all  such   cases   might  be   deemed   to  173,  2  L.  ed.  60. 

arise  under  Federal  laws  and  be  Fed-  isMarbury  v.   Madison,  1   Cranch, 

erally  justiciable  on  that  ground.  173,  2  L.  ed.  60.     The  law  authoriz- 

eGordon  v.  United  States,  117  U.  ing  mandamus   was  altered   to   con- 

S.  702;   United  States  V.  Old  Settlers,  form  of  the  decision.      See  post,  §844. 

206 


Procedure]         WHEN  ORIGINAL  JURISDICTION  EXCLUSIVE.  §  36   [b] 

appellate  jurisdiction! «  and  is  provided  for  by  act  of  Congress. i^  The  is- 
suance of  a  writ  of  habeas  corpus  is  deemed  a  revision  of  the  action  of  an 
inferior  court  and  therefore  an  exercise  of  appellate  jurisdiction.!  8 

§  36.     When  original  jurisdiction  exclusive  and  when  not. 

The  Supreme  Court  shall  have  exclusive  jurisdiction  of  all  con- 
troversies of  a  civil  nature  where  a  State  is  a  party,  except  between 
a  State  and  its  citizens,  or  between  a  State  and  citizens  of  other 
States,  or  aliens,  in  which  latter  cases  it  shall  have  original,  but  not 
exclusive  Jurisdiction. ^^^  And  it  shall  have  exclusively  all  such 
jurisdiction  of  suits  or  proceedings  against  embassadors,  or  other 
public  ministers,  or  their  domestics,  or  domestic  servants,  as  a  court 
of  law  can  have  consistently  with  the  law  of  nations ;  and  original, 
but  not  exclusive,  jurisdiction  of  all  suits  brought  by  embassadors, 
or  other  public  ministers,  or  in  which  a  consul  or  vice-consul  is  a 
party,  i^^^ 

R.  S.  §  687,  U.  S.  Comp.  Stat.  1901,  p.  565. 

[a]  Suits  affecting  States. 

The  foregoing  provision  has  remained  unchanged  since  the  enactment 
of  the  original  judiciary  act  of  which  it  was  a  part.!  In  this  section  Con- 
gress has  declared  as  it  has  power  to  do,2  when  the  original  jurisdiction 
conferred  by  the  Constitutions  is  exclusive  and  when  not.  Jurisdiction 
was  conferred  on  the  Supreme  Court  over  cases  affecting  States,  to  secure 
an  impartial  tribunal.*  Federal  jurisdiction  does  not  extend  to  suits 
against  States  by  citizens  of  other  States,  or  of  foreign  countries.s  The 
scope  of  Federal  jurisdiction  over  suits  between  States,6  and  by  States 
against  citizens  of  other  States  or  aliens,"  and  between  States  and  the 
United  States,*  has  already  been  considered. 

[b]  Suits  by  and  against  ambassadors,  consuls,  etc. 

R.  S.  §  711  originally  contained  a  provision  making  Federal  jurisdiction 
of  suits  against  ambassadors  and  their  servants  exclusive  of  the  several 
States.! 0     It  was  however  stricken  out  in  1875  and  is  unnecessary  in  view 

i6Ex  parte   Crane,   5   Pet.   200,   8  !§  13,  Act  Sept.  24,  1789,  c.  20,  1 

L.    ed.    96;    Ex    parte    Newman,    14  Stat.  80. 

Wall.  105,  20  L.  ed.  879;  Virginia  v.  2Ante,  §  35.[a] 

Rives,  100  U.  S.  327,  25  L.  ed.  672.  sAnte,  §  35. 

!7See  post,   §§   841,   844.  4Chisholm  v.   Georgia,  2  Dall.  475, 

!8Ex  parte  Bollman,  4  Cranch,  101,  1  L.  ed.  440. 

2  L.  ed.  563;    Ex   parte   Watkins,   7  sSee  ante,  §  7. 

Pet.  572,  8  L.  ed.  788;  Ex  parte  Vir-  eSee  ante,  §  2.[n] 

ginia,   100  b.   S.  341,  25   L.  ed.  677.  TAnte,  §  2.M 

Criticized  in  In  re  Metzger,  5  How.  SAnte,  §  2.01 

191,  12  L.  ed.  111.     See  U.  S.  Notes,  lOSee  ante,   §   15.ta] 
Book  I.  p.  122. 

207 


S  37  THE    SUPREME    COURT.  [Code  Fe± 

of  R.  S.  §  687,  supra.     The  scope  of  Federal  jurisdiction  as  respects  suits 
by  and  against  ambassadors,  consuls,  etc.,  has  already  been  considered,  n 

§  37.     Appellate  jurisdiction. 

The  Supreme  Court  shall  have  appellate  jurisdiction  in  the  cases 
hereinafter  specially  provided  for. 

R.  S.  §  690,  U.  S.  Comp.  Stat.  1901,  p.  566. 

The  scheme  of  appellate  jurisdiction  contemplated  by  this  section  when 
enacted  as  part  of  the  judiciary  act  of  1789,i3and  when  embodied  in  the 
Revised  Statutes,  was  altered  in  fundamental  particulars  in  the  act  of  1891, 
creating  the  circuit  court  of  appeals.  It  was  provided  in  §  4  of  that  acti* 
that  review  "by  appeal,  by  writ  of  error,  or  otherwise,  from  the  existing 
circuit  courts  shall  be  had  only  in  the  Supreme  Court  of  the  United  States 
or  in  the  circuit  courts  of  appeals  hereby  established  according  to  the  pro- 
visions of  this  act  regulating  the  same."  And  by  §  14  that  "all  acts  and 
parts  of  acts  relating  to  appeals  or  writs  of  error  inconsistent  with  the  pro- 
visions for  review  by  appeals  or  writs  of  error  in  the  proceeding  sections 
five  and  slxis  of  this  act  are  hereby  repealed."  The  act  of  1891  did  not, 
however,  affect  the  existing  law  respecting  review  on  writ  of  error  to  state 
courts. 16  The  circuit  court  of  appeals  act  has  been  uniformly  construed 
and  applied  to  promote  its  manifest  purpose  of  lessening  the  burden  of 
litigation  in  the  Supreme  Court. 1 7  The  general  purpose  of  the  act  was  to 
so  distribute  the  appellate  jurisdiction  as  to  permit  appeal  to  only  one 
court.18  The  Supreme  Court's  appellate  jurisdiction  and  the  necessity  for 
an  act  of  Congress  conferring  jurisdiction  in  a  particular  case,  have  already 
been  considered.is 

§  38.     On  writ  of  error  to  State  courts. 

A  final  judgment^'"''''  or  decree  in  any  suit  in  the  highest  court 
of  a  State,  in  which  a  decision  in  the  suit  could  be  had/**]  where  is 
drawn  in  question^^^'"^^^  the  validity  of  a  treaty  or  statute  of,  or  an 
authority  exercised  under,  the  United  States,  and  the  decision 
is  against™"'^^^'  their  validity;  or  where  is  drawn  in  question  the 
validity  of  a  statute  of,  or  an  authority  exercised  under  any 
State,  on  the  -ground  of  their  being  repugnant  to  the  Con- 
stitution,   treaties,    or    laws    of    the    United    States,    and    the 

iiAnte,  §  2.[h]-[j]  leSee    §    5    of    act    Mar.    3,    1891, 

isAct   Sept.  24,   1789,  c.  20,   §   13,    supra. 

1  Stat   80  i7Carev  v.   Houston,   etc.  Rv.    150 

i^A  \  kI       q    lom        C17    OR  Qfof     U.  S.  179,  37  L.  ed.  1041,  14  Sup.  Ct. 
i4Act  Mar.  3,  1891,  c.  517,  26  Stat,    j,^      63 

^^'^'  isHuguley  Mfg.  Co.  v.  G-aleton  C. 
isRelating  to  direct  appeals  from  Mills,  184  tl.  S.  295,  46  L.  ed.  540, 
circuit  and  district  to  Supreme  Court.  22  Sup.  Ct.  Rep.  452 ;  Carter  v.  Rob- 
Post,  §  42;  and  relating  to  appeals  erts,  177  U.  S.  499,  44  L.  ed.  863,  20 
to  and  from  the  circuit  court  of  ap-  Sup.  Ct.  Rep.  713. 
peals,  post,   §   39.                                            1 9 Ante,  §  35.[b] 

208 


Procedure]  ON   WRIT  OF   ERROR  TO   STATE   COURTS.  §  38   [aa] 

decision  is  in  favor  of  their  validity ;f™^"^'^™^  or  where  any 
title,  right,  privilege,  or  immunity  is  claimed  under  the  Constitu- 
tion, or  any  treaty  or  statute  of,!^^  or  commission  held  or  authority 
exercised  under,  the  United  States,^'^  and  the  decision  is  against 
the  title,  right,  privilege,  or  immimity  specially  set  up  or  claimed, 
by  either  party,  under  such  Constitution,  treaty,  statute,  commis- 
sion, or  authorit}^^"^"'^^^  may  be  re-examined  and  reversed  or  af- 
firmed in  the  Supreme  Court  upon  a  writ  of  error. 

Part  of  R.  S.  §  709,  as  amended  February  18,  1S75,  c.  80,  18  Stat.  318, 
U.  S.  Comp.  Stat.  1901,  p.  575. 

[a]     History  of  section  and  cross  references. 

The  omitted  portion  of  the  foregoing  section  deals  with  the  effect  of 
the  writ  upon  proceedings  in  the  State  court  ;i  and  with  the  scope  of  re- 
view, determination,  and  disposition  of  the  cause  in  the  Supreme  Court. 2 
The  procedure  upon  writ  of  error  to  State  courts  is  discussed  elsewhere.s 
The  section  was  originally  §  25  of  the  judiciary  act  of  17S9.  Its  validity 
was  elaborately  argued  and  upheld  in  an  early  case  from  Virginia.*  An 
act  of  18675  repealed  the  original  section,  substituting  one  very  similar,  6 
and  an  act  of  18757  gave  the  provision  the  form  which  it  has  since  re- 
tained. The  substantial  purpose  of  the  provision  is  to  vest  appelUxte 
jurisdiction  in  the  Supreme  Court  in  all  cases  where  rights  protected  by 
the  Federal  Constitution  treaties  or  laws  are  violated  by  a  State  decision.? 

[aa]     What  is  final  reviewable  judgment  in  a  State  court  suit. 

Final  judgments  in  criminal  cases  are  as  much  reviewable  as  in  civil 
cases.io  It  is  not  the  amount  of  the  controversy  that  is  material  nor 
the  citizenship  of  parties,ii  but  the  character  of  the  judgment.! 2  A  quo 
warranto  proceedingis  or  a  proceeding  for  prohibitioni4  or  mandamusis 
is  a  suit  in  a  State  eoui't  within  R.  S.  §  709.  But  an  order  of  a  judge  at 
chambers  on  habeas  corpus  is  not  a  final  judgment  of  a  court. 1 6 

iSee  post,   §  2018.  wealth,  7  Wall.  324,  19  L.  ed.  223. 

2See  post.   §   2084.  iiFrench  v.  Hopkins,  124  U.  S.  525, 

sPost.   §    1888.  31  L.  ed.  536,  8  Sup.  Ct.  Rep.  589. 

*Martin  v.  Hunter,  1   Wheat.  352,  i2Barrj'   v.   Mercoin,   5   How.    120, 

4  L.  ed.  97.  12  L.  ed.  70;    Buell   v.  Van  Ness,  8 

6Act   Feb.   5,  1867,   c.   28,   §   2,   14  Wheat.  322,  5  L.  ed.  G24. 

Stat.  386.  isBoyd  v.  Nebraska,  143  U.  S.  161, 

6See  Murdock  V.  Memphis,  20  Wall.  36  L.  ed.  103,  12  Sup.  Ct.  Rep.  375. 

590,  22  L.  ed.  437,  where  the  two  are  1 4 Weston  v.  Charleston,  2  Pet.  449, 

compared.  7  L.  ed.  481. 

TAct  Feb.   18,  1875,  c.  80,  18  Stat.  is  American  Exp.  Co.  v.  Michigan, 

318.  177  U.  S.  407,  44  L.  ed.  824,  20  Sup. 

8New  Orleans  v.  Dex\rnuis,  9  Pet.  Ct.    Rep.    695;    Hartman    v.    Greeii- 

234,  9  L.  ed.  109;  Dower  v.  Richards,  how,  102  U.  S.  675,  26  L.  ed.  271. 

151  U.  S.  666,  38  L.  ed.  305,  14  Sup.  leMcKnight   v.   James,   155   U.    S. 

Ct.  Rep.  452;  De  Lamar's,  etc.  Co.  v.  687.  39  L.  ed.  310,   15  Sup.  Ct.  Rep. 

Nesbitt,  177  U.  S.  529,  44  L.  ed.  874,  248;    Clarke  v.    -McDade.    165    U.    S. 

20  Sup.  Ct.  Rep.  715.  172,  41  L.  ed.  673,  17  Sup.  Ct.  Rep. 

10  Worcester  v.  Georgia,  6  Pet.  567,  284. 
8  L.  ed.  483;   Twitchell  v.  Common- 
Fed.  Proc— 14.                                209 


§  38   [b]  THE     SUPREME     COURT.  ICode   Fed. 

The  State  judgment  must  be  final  or  the  writ  will  not  lie.i"  In  deter- 
mining the  finality  of  a  State  judgment  the  Supreme  Court  looks  to  the 
record  sent  up; is  and  where  that  shows  merely  a  reversal  with  directions 
to  enter  judgment  below  in  accordance  with  an  order  which  does  not  appear 
therein,  the  writ  will  not  lie. is  A  decree  or  motion  to  dissolve  an  injunc- 
tion is  not  final  within  this  section; 20  neither  is  a  judgment  of  reversal 
in  the  highest  State  court  and  for  further  proceedings  below  ;i  neither  is  a 
judgment  of  dismissal  and  remand  for  further  proceedings. 2  After  further 
proceedings  have  been  had,  the  case  must  again  go  to  the  highest  State 
court  before  error  will  lie.s  Reversal  with  directions  to  dismiss  the  com- 
plaint is  final.4  And,  in  general,  if  by  any  direction  of  the  highest  State 
court,  the  entire  cause  is  determined,  the  decision,  when  reduced  to  form 
and  entered,  constitutes  a  final  reviewable  judgment.^  The  opinion  of  the 
State  court  that  a  judgment  which  it  affirms,  is  final  will  be  followed. 6 
It  makes  no  diff'erence  that  the  judgment  is  by  a  court  evenly  divided  in 
opinion  and  in  a  cause  of  original  cognizance. 7  Nor  that  it  is  based  on 
agreed  facts. 8  A  judgment  merely  for  costs  is  not  reviewable.9  An  order 
to  commissioners  in  condemnation  proceedings  to  assess  damages,  is  ordi- 
narily not  final,!  0  but  will  be  treated  as  final  where  the  State  court  does 
so. 11  A  judgment  affirming  or  reversing  a  judgment  below  is  reviewable 
though  such  judgment  refuse  a  writ  of  error  or  dismiss  one  previously 
allowed.  12 

[b]     Highest  State  court  in  which  decision  could  be  had. 

It  is  plain  from  the  wording  of  the  section  that  it  is  only  the  judgment 
or  decree  of  the  highest  State  court  in  which  a  decision  in  the  suit  could 
be  had,  that  is  reviewable  in  the  Supreme  Court.16     That  court  may,  be- 

i7Houston  V.  Moore,  3  Wheat.  434,  4 Commissioners  v.  Lucas,  93  U.  S. 

4    L.    ed.    428;    Davis   v.    Packard,    6  113,  23  L.  ed.  822. 

Pet.  49,  8  L.  ed.  312;  California  Nat.  ^Commissioners  v.  Lucas,  93  U.  S. 

Bank  v.   Stateler,   171   U.   S.  449,  43  113,  23  L.  ed.  822. 

L.    ed.  233,  19  Sup.  Ct.  Rep.  6;  Great  ewheeling.  etc.    Co.    v.  Wheeling, 

W.  Tel.   Co.   V.   Burnham,    162   U.   S.  etc.  Co.  13S  U.  S.  290,  34  L.  ed.  967, 

341,  40  L.  ed.  991,   16  Sup.  Ct.  Rep.  11  Sup.  Ct.  Rep.  301. 

850.  THartman  v.   Greenhow,   102  U.  S. 

isGoodenough.    etc.    Co.    v.    Rhode  676.  26  L.  ed.  271. 

Island,  etc.  Co.  154  U.  S.  636,  24  L.  sAldrich  v.  Aetna  Co.  8  Wall.  495, 

ed.  368,  14  Sup.  Ct.  Rep.  1180.  19  L.  ed.  473. 

isUnion  M.  L.   I.  Co.  v.  Kirchoff,  9 Wood  v.  Weimar,  104  U.  S.  792, 

160  U.  S.  378,  40  L.  ed.  461,  10  Sup.  26  L.  ed.  779. 

Ct.  Rep.  318.  lOLuxton  v.  North  R.  B.  Co.  147  U. 

20Verden  v.  Coleman,  18  How.  86,  S.  337,  37  L.  ed.  194,  13  Sup.  Ct.  Rep. 

15  L.  ed.  272.  356. 

iWinn  V.  Jackson,  12  Wheat.  135,  nWhe  ling    &    B.     Bridge    Co.   v. 

6  L.  ed.  577;  Rice  v.  Sanger,  144  U.  Bridge  Co.   138  U.  S.  287,  34  L.  cd. 

S.  197,  36  L.  ed.  403,  12  Sup.  Ct.  Rep.  967,  11  Sup.  Ct.  Rep.  301. 

G64.  12 Williams   v.    BrulTy,    102    U.    S. 

2McComb  v.  Commissioners,  91  U.  255,  26  L.  ed.  135. 

S.  2,  23  L.  ed.  185.  isAtherton  v.  Fowler,  91  U.  S.  146, 

3Brown  v.  Baxter.   146  U.   S.  620,  23  L.  ed.  265;  Fisher  v.  Perkins,  122 

36  L.  ed.  1106,  13  Sup.  Ct.  Rep.  260.  U.  S.  522,  30  L.  ed.  1192,  7  Sup.  Ct. 

210 


Procedure]  ON    WRIT    OF    ERROR   TO    STATE    COURTS.  §   38   [b] 

cause  of  the  smallness  of  the  amount  involved  or  for  other  reason,  be  in 
in  fact  an  inferior  court  such  as  a  county  court. it  Where  by  the  State 
practice  the  infringement  of  a  Federal  right  in  the  impaneling  of  a  jury 
is  not  reviewable  in  the  State  appellate  court,  it  has  recently  been  inti- 
mated that  the  Supreme  Court  will  issue  writ  of  error  to  such  trial  court 
as  the  highest  State  court  in  which  a  decision  of  the  Federal  question 
could  be  had,  though  the  case  itself  in  other  aspects  was  appealable  to  the 
appellate  State  court. is  But  if  the  writ  be  to  an  inferior  State  court  it 
must  affirmatively  appear  that  a  decision  could  not  be  had  in  the  highest 
court,  otherwise  the  writ  will  be  dismissed.is  In  those  cases  where  State 
laws  make  an  inferior  tribunal's  decision  final,  but  also  vest  a  discretion 
in  the  judge  of  the  inferior  or  appellate  court  to  allow  an  appeal  or  pro- 
vide some  other  contingency  upon  which  an  appeal  might  possibly  be 
taken,  it  must  appear  that  that  mode  cf  securing  review  in  the  highest 
State  court  has  been  attempted  and  has  failed. 20  After  the  highest  State 
court  has  refused  writ  of  error  or  other  mode  of  review  of  an  inferior 
court's  decision,  the  writ  of  error  should  issue  to  the  inferior  court  as 
the  higliest  State  court  in  which  judgment  could  be  had.i  So  if  the  high- 
est State  court  dismisses  an  appeal  for  want  of  jurisdiction  the  writ 
should  issue  to  the  lower  covirt.2 

While  the  judgment  to  be  re-examined  must  be  that  of  the  highest  court 
of  the  State  having  power  to  decide,  the  record  of  that  judgment  may  be 
brought  from  an  inferior  court  if  legally  deposited  there  and  not  in  the 
highest  court.3  Hence  where  an  appellate  court  reverses  and  remands 
with  directions  to  the  court  below  to  enter  judgment  in  accordance  with 
its  opinion  and  the  record  is  sent  down  and  not  even  a  copy  of  it  remains 
in  the  higher  court,  the  writ  is  properly  directed  to  the  lower  court- <  so 
also  where  certain  questions  only,  are  sent  to  the  higher  court  and  it  sends 
down  a  rescript  of  its  decision  therein. 5  In  those  States,  as  for  instance, 
New  York,  where  the  practice  is  for  the  highest  court  to  send  the  record 

Rep.  1227;  Mullen  v.  Western  U.  B.  S.  396,  .32  L.  ed.  487,  9  Sup.  Ct.  Rep. 

Co.  173  U.  S.   119,  43  L.  ed.  635,  19  2,   113;    Stanlev  v.  Scliwalby,  162  U. 

Sup.  Ct.  Rep.  404.  S.    269;    40    L.   ed.    96.5,    16    Sup.    Ct. 

i7The  Moses  Taylor,  4  Wall.  426,  Rep.  760;   Bacon  v.  Texas,  163  U.  S. 

18   L.    ed.    397,    or   a   district   court.  215,  41  L.  ed.   132,  16  Sup.  Ct.  Rep. 

Downliam    v.     Alexandria,     9     Wall.  1023;     Missouri,    etc.    Rv.   v.    Elliott. 

661,  19  L.  ed.  807.  184  U.  S.  539,  46  L.  ed.'673,  22  Sup. 

iSKentuckv   v.    Powers.   201    U.    S.  Ct.    Rep.    446;    Miller   v.   Joseph.    17 

1,  50  L.  ed.  633,  26  Sup.  Ct.  Rep.  387.  Wall.  656,  21  L.  ed.  741. 

li'Fisher  v.  Perkins,  122  U.  S.  522,  2Lane  v.  Wallace.  131  U.  S.  ccxix, 

30  L.  ed.  1192.  7  Sup.  Ct.  Rep.  1227;  26  L.  ed.  703. 

Mullen  V.  Western  U.  B.  Co.  173  U.  sGelston  v.  Ilovt,  3  X^Hieat.  304,  4 

S.  123,  43  L.  ed.  635,  19  Sup.  Ct.  Rep.  L.  ed.  396;  Webster  v.  Reid,  11  How. 

404.  457.  13  L.  ed.  769. 

20Gregorv    v.    McVeigh,   23   Wall.  -iLoe  v.  Johnson.  116  U.  S.  49,  29  L. 

294,    23   L.    ed.    156;     Fisher    v.   Per-  ed.  570,  6  Sup.  Ct.  Rep.  249;  Pollevs 

kins,  122  U.  S.  522.  .30  L.  ed.  1193,  7  Black  R.   I.  Co.  113   U.  S.  81,  28  L. 

Sup.   Ct.   Rep.    1227.  ed.  938,  5  Sup.  Ct.  Rep.  369. 

1  Bergenia II n   v.   Backer,   157    U.   S.  sMcGuire  v.  Com.  3  Wall.  382,   18 

659,  39  L.  0.1.  845.  15  Sup.  Ct.  R-  >.  L.  ed.  164. 
727;    Clarke   v.    Pensylvania.    128    U. 

211 


§  38   [c]  THE    SUPREME    COURT.  [Code  Fed. 

and  its  judgment  to  the  lower  court  where  it  remains,  the  writ  may  prop- 
erly be  directed  to  such  lower  court. 6  The  same  is  true  of  Massachusetts 
cases  under  a  form  of  review  whereby  only  certain  questions  are  taken  to 
the  highest  court  and  the  record  remains  in  the  Superior  Court. ^  It  has 
been  said  that  it  would  probably  be  no  ground  for  dismissal  that  the  writ 
had  issued  to  the  highest  court  in  such  a  case,  since  that  tribunal  might 
possibly  obtain  and  send  the  record. 8  But  in  cases  from  States  like  New 
York  and  Massachusetts  the  Supreme  Court  will  probably  take  notice  of 
the  local  procedure,  so  that  it  would  be  the  better  practice  to  issue  the 
writ  in  the  first  instance  to  the  lower  court  which  has  the  record  in  its 
custody.  Where  the  highest  court  is  the  custodian  of  its  own  records  and 
the  record  is  obtainable  there,  the  writ  must  be  directed  to  that  court. » 

[c]     Necessity  that  Federal  right  be  claimed  or  drawn  in  question. 

In  every  case  it  must  appear  that  the  Federal  claim  or  right  was  inter- 
posed in  the  State  court.  Plaintiff  in  error  must  bring  the  case  within 
the  letter  and  spirit  of  the  law  allowing  the  writ. 12  There  is  no  juris- 
diction to  review  State  decisions  which  do  not  raise  Federal  questions  ;13 
even  though  similar  questions  under  State  constitutional  provisions  are 
litigated;!*  and  the  writ  must  be  dismissed. is  The  mere  fact  that  a  tax 
deed  was  based  upon  a  Federal  law  does  not  give  a  right  of  review  in  the 
absence  of  any  question  growing  out  of  that  law;i6  nor  does  the  fact  that 
a  Federal  receiver  is  a  party;  i"  nor  that  an  award  recovered  by  an  attor- 
ney who  is  sued  therefor  by  the  client,  was  an  award  for  the  United 
States.  18  The  validity  of  a  statute  is  not  drawn  in  question  every  time 
rights  claimed  thereunder  are  controverted,  nor  the  validity  of  an  author- 
ty,  every  time  an  act  done  by  such  authority  is  disputed;  there  must  be 
direct  resulting  injury  from  a  denial  of  their  existence,  constitutionality 
or   legality.i9      Cases    merely    affecting   construction   do  not   question    the 

eCelston  v.  Hoyt,  3  Wheat.  246,  4  is  Walker  v.  Sanvenet,  92  U.  S.  92, 

L    ed.  396;  Green  v.  Van  Buskirk,  3  23  L.  ed.  678;   McQuade  v.  Trenton, 

Wall    450,  18  L.  ed.  245:  Atlierton  v.  172  U.  S.  639,  43  L.  ed.  581,  19  Sup. 

Fowler,  91  U.  S.  146,  23  L.  ed.  265;  Ct.  Rep.  292. 

Wurts  V.  Hoagland,  105  U.  S.  702,26  i^Howard   v.    Fleming,    191    U.    S. 

L.  ed.  1109.  126.  48  L.  ed.  121,  24  Sup.  Ct.  Eep. 

TMcGuire  v.  Com.  3  Wall.  382,  18  49. 

L.  ed.  164;  McDonald  v.  Com.  180  U.  is  Santa  Cruz  Co.  v.  Santa  Cruz  R. 

S.  311,  45  L.  ed.  542.  21  Sup.  Ct.  Rep.  R.  Ill  U.  S.  362,  28  L.  ed.  456,  4  Sup. 

389;  Rothschild  v.  Knight.  184  U.  S.  Ct.  Rep.  474;   Chapin  v.  Fve,  179  U. 

339,  46  L.  ed.  573.  22  Sup.  Ct.  Rep.  S.  129,  45  L.  ed.  121,  21  Sup.  Ct.  Rep. 

393.  71. 

sAtherton  v.  Fowler,  91  U.  S.  146,  isMcBride  v.  Hoey,  11  Pet.  172,  9 

23  L.  ed.  2bo.  L.  ed.  673. 

SAtherton  v.  Fowler,  91  U.  S.  146,  i^Bausuran     v.     Dixon,    173   U.   S. 

23  L.  ed.  265,  disapproving  dictum  in  115,  43  L.  ed.  633,  19  Sup.  Ct.  Rep. 

Gelston  v.  Hoyt,  supra,  that  tne  writ  316. 

may  be  directed  to  any  court  having  isSherman   v.   Grinnell,   144   U.   S. 

the"  record.                       "  202,  36  L.  ed.  403,  12  Sup.   Ct.  Rep. 

l2!^cott  v.   Jones,   5  How.   375,    i^  574. 

L.  ed.   181;    Home   Ins.   Co.   v.    City  laUnited  States  v.  Lynch,   137  U. 

Council,  93  U.  S.  116,  23  L.  ed.  825.  S.  285,  34  L.  ed.  700,  11  Sup.  Ct.  Rep. 

212 


Procedure] 


ON    WRIT   OF  ERROR  TO   STATE    COURTS. 


§   38   [cc] 


validity  of  a  law  or  treaty. 20  A  suit  to  try  adverse  title  to  a  mining 
claim  under  R.  S.  2326,  does  not  necessarily  involve  a  Federal  question.21 
Questions  of  comity  are  in  general  not  Federal.22 

[cc]     Decisions  upon  matters  of  purely  local  law. 

Where  the  questions  sought  to  be  presented  in  a  case  as  Federal,  fall 
entirely  within  the  powers  of  a  State,  and  pertain  to  matters  outside  the 
legislative  powers  of  Congress  and  outside  the  limitations  and  restrictions 
of  the  Constitution,  it  is  obvious  that  there  can  be  no  jurisdiction  to  re- 
view the  decision  of  the  State  court  under  R.  S.  §  709.1  The  highest  State 
court  may  administer  the  common  law  according  to  its  understanding 
thereof. 2  In  the  cases  denying  a  right  to  review  State  decisions  on  error 
because  no  Federal  question  existed  and  in  cases  admitting  a  right  of  re- 
view, but  confining  it  to  the  Federal  question  raised,  the  Supreme  Court  has 
frequently  observed  that  a  matter  decided  by  the  State  court  was  one  of 
purely  local  law  which  it  would  not  re-examine.  Some  of  these  cases  in 
which  a  re-examination  of  questions  of  local  law  has  been  refused  are  col- 
lected in  a  footnote. 3     Many  of  them  deal  with  questions  of  local  practice 


114;  ]\ruse  v.  Arlington  H.  Co.  168 
U.  S.  435,  42  L.  ed.  533,  18  Sup.  Ct. 
Rep.  Ill;  Cook  Co.  v.  Calumet,  etc. 
Co.  138  U.  S.  653,  34  L.  ed.  1110,  11 
Sup.  Ct.  Rep.  435;  Bushnell  v. 
Crooke,  etc.  Co.  148  U.  S.  689,  37  L. 
ed.  610,  13  Sup.  Ct.  Rep.  771;  Miller 
v.  Cornwall  R.  R.  168  U.  S.  133,  42 
L.  ed.  409,  18  Sup.  Ct.  Rep.  34; 
Keenard  v.  Nebraska,  186  U.  S.  308, 
46  L.  ed.  1175,  22  Sup.  Ct.  Rep.  879. 

soSouth  Carolina  v.  Seymour,  lo3 
U.  S.  358,  38  L.  ed.  742,  14  Sup.  Ct. 
Rep.  871;  Kennard  v.  Nebraska,  186 
U.  S.  308,  46  L.  ed.  1175,  22  Sup.  Ct. 
Rep.  879;  Missouri  P.  Ry.  v.  Fitzger- 
ald, 160  U.  S.  576,  40  L.  ed.  536,  16 
Sup.  Ct.  Rep.  389 ;  Southern  R.  R.  Co. 
v.  Carson,  194  U.  S.  136,  48  L.  ed.  907, 
24  Sup.  Ct.  Rep.  609. 

2iMcMillen  v.  Ferrum  M.  Co.  197 
U.  S.  433,  49  L.  ed.  784,  25  Sup. 
Ct.  Rep.  553. 

2  2 Allen  v.  Allegheny  Co.  196  U.  S. 
458,  49  L.  ed.  551,  25  Sup.  Ct.  Rep. 
311. 

iDavis  V.  Texas.  139  U.  S.  652,  657, 
35  L.  ed.  300,  11  Sup.  Ct.  Rep.  675. 

2Pennsylvani'a  R.  R.  v.  Huglies,  191 
U.  S.  477,  49  L.  ed.  268,  24  Sup.  Ct. 
Rep.  132. 

3Strader  v.  Graham,  10  How.  93, 
13  L.  ed.  337,  as  to  status  of  slaves 
taken  to  free  States;  Robertson  v. 
Coulter.  16  How.  113,  14  L.  ed.  865, 
j)owors  of  tru^ite?  under  local  statute; 

21 


Young  V.  Steamslhip  Co.  105  U.  S.  44, 
26  L.  ed.  966,  as  to  repayment  of  fees 
by  commissioner;  Susquehanna  B. 
Co.  V.  West  Branch  Boom  Co.  110  U. 
S.  58,  28  L.  ed.  69,  3  Sup.  Ct.  Rep. 
438,  as  to  corporate  powers;  Colt  v. 
Colt,  111  U.  S.  578,  28  L.  ed.  520,  4 
Sup.  Ct.  Rep.  553,  competency  of 
guardian  ad  litem;  Shreveport  v. 
Cole,  129  U.  S.  41,  32  L.  ed.  589,  9 
Sup.  Ct.  Rep.  210,  auction  to  recover 
balance  on  contract;  Beattv  v.  Ben- 
ton, 135  U.  S.  254,  34  L.  ed.  124,  10 
Sup.  Ct.  Rep.  747.  rights  under  trust 
deed  and  State  statute;  McNulta  v. 
Lochridge,  141  U.  S.  329,  35  L.  ed.  796, 
12  Sup.  Ct.  Rep.  11,  liability  of 
receiver  for  predecessors'  acts;  Dela- 
ware City  Co.  V.  Reybold,  142  U.  S. 
641,  35  L.  ed.  1141,  12  Sup.  Ct.  Rep. 
200,  claim  for  legal  services;  Mis- 
souri V.  Harris,  144  U.  S.  211,  36  L. 
ed.  407,  12  Sup.  Ct.  Rep.  838,  validity 
of  assent  to  municipal  stock  subscrip- 
tion; O'Neil  V.  Vermont.  144  U.  S. 
332,  36  L.  ed.  450,  12  Sup.  Ct.  Rep. 
693,  what  constitutes  a  .'^le  under 
liquor  statute;  Nortliern  Pac.  R.  R. 
V.  Ellis,  144  U.  S.  464,  30  L.  ed.  504, 
12  Sup.  Ct.  Rep.  724;  Yazoo,  etc.  R. 
R.  Co.  V  Adams.  180  U.  S.  20.  45  L. 
ed.  409,  21  Sup.  Ct.  Rep.  282;  and 
Adams  v.  Louisiana  Bd.  of  Liq.  144 
TJ.  S.  653,  36  L.  ed.  578.  12  Sup.  Ct. 
Rep.  756,  former  judgment  as  res 
adjudicata  or  estoppel,  and  wlint 
3 


§   38   [cc]  THE    SUPREME    COURT.  [Code  Fed. 

which  are  in  no  respect  of  a  Federal  character; 4  and  with  questions  of 
pleading; 5  and  evidence  and  variance; 6  and  competency  of  witnesses." 
State  taxation  is  primarily  a  matter  of  local  law  only  and  many  decisions 
in  tax  matters  have  been  held  not  reviewable  on    error,?    though    others 


constitutes  sale  of  bonds;  Bier  V.  Mc-  1055,      when     action     deemed     com- 

Gehee,  148  U.  S.  141,  37  L.  ed.  397,  13  menced;   Germania  Ins.   Co.  v.   Wis- 

Sup.   Ct.  Rep.  580,  rescission  of  sale  consin,  119  U.  S.  476,  30  L.  ed.  461, 

of  bond;   Snell  v.  Chicago.  152  U.  S.  7    Sup.    Ct.    Rep.    260,   as    to    proper 

198,  38  L.  ed.  408,   14  Sup.   Ct.  Rep.  service    of    process;     Thonington    v. 

489,  rights  of  heirs  ot  vender  in  fran-  Montgomerv,    147    U.    S.    494,    37    L. 

chise;    Israel    v.    Arthur,    152    U.    S.  ed.  252,  13*  Sup.   Ct.  Rep.  394,  as  to 

362,  38  L.  ed.  474,  14  Sup.  Ct.  Rep.  exclusion   of    depositions ;    Brown    v. 

583,  second    marriage    as    estopping  Massachusetts,   144  U.   S.  580,  36  L. 

right    to    avoid    divorce;     Wailes    v.  ed.   546,    12  Sup.   Ct.    Rep.   757;    and 

Smith,  157  U.  S.  275,  39  L.  ed.  698,  Gibson  v.  Mississippi,  162  U.  S.  591, 

15    Sup.    Ct.    Rep.   624,   state    comp-  40  L.  ed.  1075,  16  Sup.  Ct.  Rep.  904, 

troller's  duty  in  drawing  warrants;  as  to   objections    to   and    impaneling 

New  York  v.  Roberts,  171  U.  S.  663,  of  jurors;  Loeber  v.  Schroeder,  149  U. 

43  L.  ed.  325,  19  Sup.  Ct.  Rep.  58,  S.  585,  37  L.  ed.  856,  13  Sup.  Ct.  Rep. 
in  determining  corporate  stock  used  934,  as  to  remedy  in  law  or  equity; 
in  State;  Wilson  v.  North  Carolina,  St.  Louis,  etc.  Ry.  v.  Missouri,  15() 
169  U.  S.  593,  42  L.  ed.  865,  18  Sup.  U.  S.  484,  39  L.  cd.  502,  15  Sup.  Ct. 
Ct.  Rep.  435;  Rae  v.  Homestead  L.  Rep.  443,  prohibition  to  inferior  Stat.-; 
Co.  176  U.  S.  126,  44  L.  ed.  399,  20  court;  Moore  v.  Jilissouri,  159  U.  S. 
Sup.  Ct.  Rep.  341,  as  to  decree  for  680,  40  L.  ed.  301,  16  Sup.  Ct.  Rep. 
(niyment  in  lawful  money:  Weyer-  179,  failure  to  give  hearing  in  bank: 
hauesser  v.  Minnesota,  176  U.  S.  559,  Seneca  Nation  v.   Christy,  162   U.  S. 

44  L.  ed.  587,  20  Sup.  Ct.  Rep.  485,  288,  40  L.  ed.  970,  16  Sup.  Ct.  Rep. 
as  to  law  estoppel;  Gundliiig  v.  Chi-  828.  as  to  bar  of  statute  of  liiiiilr,- 
cago,   177   U.   S.    188,   44  L.   ed.   729,  tions;   Beaupre  v.   Noyes,   138  U.   S. 

20  Sup.  Ct.  Rep.  633,  as  to  powers  402,  34  L.  ed.  991,  11  Sup.  Ct.  Rt-p. 
of  mayor;  Forsyth  v.  Vehmeyer,  177  296,  and  Davis  v.  Texas,  139  U.  S. 
U.  S. 'l80,  44  L.  ed.  724,  20  Sup.  Ct.  653,  35  L.  ed.  300,  11  Sup.  Ct.  Rep. 
Rep.  623,  as  to  what  constitutes  675,  as  to  motion  for  new  trial, 
fraud;  New  Orleans,  etc.  Co.  v.  Louis-  sRuena  Vista  Co.  v.  lown,  etc.  Co. 
iana,  180  J.  S.  330,  45  L.  ed.  556,  21  112  U.  S.  177,  28  L.  ed.  680^  5  Sup. 
Sup.  Ct.  Rep.  378.  validity  of  incor-  Ct.  Rep.  84;  Grand  Rapids,  etc.  R. 
poration  under  Federal  laws;  Hale  R.  v.  Butler.  159  V.  S.  91,  41  L.  ed. 
V.  Lewis,  181  U.  S.  480,  45  L.  ed.  963,  85.  15  Sup.  Ct.  Rep.  991;    Abbott  v. 

21  Sup.  Ct.  Rep.  677,  as  to  estoppel  to  Tacoma  Bank,  175  U.  S.  413,  44  L. 
question  validity  of  statute;  New  Or-  ed.  217,  20  Sup.  Ct.  Rep.  153;  Yazoo, 
leans  W.  W.  Co.  v.  Louisiana,  185  etc.  Ry.  v.  Adams,  180  U.  S.  9,  4.5  L. 
U.  S.  353,  46  L.  ed.  936,  22  Sup.  Ct.  ed.  402,  21  Sup.  Ct.  Rep.  240;  Na- 
Rep.  691,  whether  bondholders  neces-  tional  F.  Co.  v.  Oconoto,  etc.  Co.  183 
sary  parties  to  quo  warranto  to  for  V.  S.  237,  46  L.  ed.  157.  22  Sup.  Ct. 
feit  charter;  Smitli  V.  Adsit,  23  Wall.  Rep.  Ill;  Allen  v.  Allegheny  Co. 
373,  23  L.  ed.  114,  what  constitutes  196  U.  S.  458,  49  L.  ed.  551,  25  Sup. 
a  trust;  Lange  v.  Benedict,  99  U.  S.  Ct.  Rep.  311. 

71,  25  L.  ed.  469,  personal  liability  of        sMartin  v.   Marks,   97   U.    S.   348, 

judge;   Forsj'th  v.  Hammond,  166  U.  24  L.  ed.  940;   California  Nat.  Bank 

S.  518,  41   L.   ed.   1095,   17   Sup.   Ct.  v.  Thomas,  171  U.  S.  446,  43  L.  ed. 

Rep.  665.  and  McCain  v.  Des  Moines,  231,    19   Sup.  Ct.   Rep.   6;     Brooks   v. 

174  U.  S.  181,  43  L.  ed.  936,  19  Sup.  Missouri,  124  U.  S.  395,  31  L.  ed.  454, 

Ct.   Rep.   644,  as   to   boundaries   and  8  Sup.  Ct.  Rep.  443. 
powers  of  municipalitv.  'i'Spies  v.  Illinois,  123  U.  S.  180,  .^1 

■iRichmond  M.  Co.  v.  Rose,  114  U.  L.  ed.  80,  8  Sup.  Ct.  Rep.  21,  22. 
S.  583,  29  L.  ed.  273,  5  Sup.  Ct.  Rep.        sSee  Bardon  v.  Land,  etc.  Co.  157  U. 

214 


Procedure]  ON   WUIT  OF    ERKOU   TO   STATE    COURTS.  §    3S    [cc] 

presenting  questions  of  State  laws  impairing  contracts,  or  denying  the 
equal  protection  of  the  laws,  etc.,  are  reviewable  where  the  Federal  consti- 
tutional right  is  adversely  decided. »  Others  are  concerned  with  questions 
arising  in  criminal  cases,  and  it  is  uniformly  decided  that  errors  in  ad- 
ministration! o  of  State  criminal  laws,  or  in  the  interpretation  of  the  State 
guaranties  to  the  accused  are  not  of  themselves  sufficient  to  justify  review 
on  error  in  the  Supreme  Court.n  There  must  be  a  denial  of  some  Federal 
right;  12  and  as  the  first  ten  amendments  do  not  apply  to  the  States 1 3 
the  Fourteenth  Amendment  is  the  commonest  basis  for  the  asserted 
Federal  right.  Decisions  as  to  the  validity  of  acts  compelled  by  the  Con- 
federate government,  or  of  payments  in  Confederate  money  or  insurance 
losses  ^ue  to  Confederate  acts,  do  not  raise  a  Federal  question;  i*  nor  is  a 

S.  332,  39  L.  ed.  719,  15  Sup.  Ct.  Rep.  46  L.  ed.  872,    22  Sup.  Ct.  Rep.  616, 

650:    kirtland   v.    Hotchkiss.    100    U.  as    to   continuance,    respite   and    mo- 

S.   498.   25   L.   ed.   558;    Louisiana   v.  tion  in  arrest:  Kohl  v.  Lehlback.  160 

New   Orleans,   108   U.    S.   569,   27    L.  U.  S.  298,  40  L.  ed.  432,  16  Sup.  Ct. 

ed.  823,  2  Sup.   Ct.  Rep.  955;   Chap-  Rep.    304,   right    of    appeal  in  State 

man  v.  Goodnow,   123   U.  S.  547,  31  court;  Wilson  v.  North  Carolina,  169 

L.  ed.  235,  8  Sup.  Ct.  Rep.  211 ;  Wells  U.  S.  595.  42  L.  ed.  865,  18  Sup.  Ct. 

V.  Goodnow,  150  U.  S.  84,  37  L.  ed.  Rep.     435,     refusal    of    jury    trial; 

1007,  14  Sup.   Ct.   Rep.  22;    Tyler  v.  O'Neil  v.  Vermont.  144  U".  S.  327,  36 

Cass  Co.  142  U.  S.  290,  35  L.  ed.  1016,  L.    ed.   450,    12    Sup.    Ct.    Rep.    693; 

12    Sup.    Ct.   Rep.    225;    Orr   v.    Gil-  consolidation  of  offenses  in  one  com- 

man,  183  U.  S.  288,  46  L.  ed.  196,  22  plaint;    Lambert  v.   Barrett.   157   U. 

Sup.  Ct.  Rep.  213;  Central  P.  R.  R.  S.   699,   39   L.    ed.   865,    15    Sup.   Ct. 

V.   Nevada,   162  U.    S.  523,  40  L.  ed.  Rep.   722;    power  of  reprieve;    In   re 

1057.  16  Sup.  Ct.  Rep.  885;   Western  Kemmler,  136  U.  S.  447,  34  L.  ed.  519, 

U.  T.  Co.  V.  Indinna,  165  U.  S.  307,  10  Sup.  Ct.  Rep.  930,  validity  of  elec- 

41  L.  ed.  725,  17  Sup.  Ct.  Rep.  345.  trocution :    Davis   v.    Burke,    179    U. 

9See  infra,  note.[m]  S.   404,   45   L.    ed.   252,   21    Sup.  Ct. 

lOGibson  v.  Mississippi,   162  U.  S.  Rep.   210.   place  of  execution. 

591.  40  L.  ed.  1075,  16  Sup.  Ct.  Rep.  isWilliams  v.  Mississippi,   170  U. 

904.  S.    213.   42   L.    ed.    1012.    18   Sup.    Ct. 

iiBrooks    V.    Missouri.    124    U.    S.  Rep.  583. 

395,   31   L.  ed.  4.54,  8   Sup.   Ct.   Rep.  i^So  the  writ  should  be  denied  or 

443;  Caldwell  v.  Texas,  137  U.  S.  698,  if  granted,  dismissed  where  the  one 

34  L.  ed.  816,  11   Sup.  Ct.  Rep.  224;  seeking   review    claims    some    act    of 

Moore  v.  Missouri,  159  U.  S.  678,  40  the  State  to  be  in  violation  of  any  of 

L.  ed.   301,    16    Sup.    Ct.  Rep.    179;  these  ten  amendments.    In  re  Kemm- 

O'Neil  V.  Vermont,  144  U.  S.  327,  36  ler,  136  U.  S.  447,  34  L.  ed.  519.   10 

L.  ed.  4.50,  12  Sup.  Ct.  Rep.  693;  and  Sup.  Ct.    Rep.    930;    O'Neil    v.  Ver- 

McDonald   v.   Massachusetts.    180   U.  mont,   144  U.   S.   .331.  36  L.   ed.   450. 

S.    313.   45   L.   ed.    547.   21    Sup.    Ct.  12  Sup.  Ct.  Rep.  693,  as  to  cruel  and 

Rep.     389.     all     dealing    witli     ques-  unusual     punishment.     See    Winous, 

tions     under     indictment     or     com-  etc.   v.  Casperson,   193  U.   S.   189,  49 

plaint;  Baldwin  v.  Kansas,  129  U.  S.  L.  ed.  675,  24  Sup.  Ct.  Rep.  431. 

57,  32  L.  ed.  6.^0.  9  Sup.  Ct.  Rep.  193,  i4Rockhold  v.   Rockhold.  92  L^.   S. 

as  to  oath  of  jurv;   Davis  v.  Texas,  130.  23  L.  ed.  507;  Grame  v.  Mutual 

139  U.  S.  651,  "35  L.  ed.  300,  11  Sup.  Ins.  Co.  112  U.  S.  275,  28  L.  etl.  716, 

Ct.   Rep.    675:    Storti    v.    :\Iassachu-  5    Sup.     Ct.    Rep.     150:     Dugger   v. 

setts.    183   V.   S.    142,   46    I,,   el.    120,  Bocock,  104  U.  S.  601.  26  L.  ed.  846; 

22  Sup.  Ct.  Rep.  72,  and   St.   Luais  Kennev  v.  Effenger.  115  U.  S.  577,  29 

C.  C.  Co.  V.  Illinois,  185   L'.   S.  206,  L.  ed.  498,  6  Sup.  Ct.  Rep.  185. 

215 


§  38   [d]  THE    SUPREME   COURT.  [Code  Fed. 

decision  as  to  insufficiency  of  notice  to  indorser  within  the  Confederate  lines 
at  the  time. IB 

A  State  court  cannot,  however,  defeat  the  right  of  review  in  the  Supreme 
Court  by  resting  decision  on  a  non-Federal  ground,  where  a  Federal  claim 
is  duly  set  up  and,  if  allowed,  would  have  required  a  different  judgment.16 

[d]     Claim  must  be  made  in  timely  and  specific  manner. 

The  record  must  show  that  the  Federal  question  was  set  up  at  the  proper 
time  and  in  the  pi"oper  way.is  The  requirement  of  R.  S.  §  709  is  specific 
on  this  point,  especially  in  cases  where  a  Federal  right  title  or  privilege  is 
set  up.  The  party  claiming  a  Federal  right  must  do  so  in  clear  terms  ;19 
though  no  particular  form  of  words  is  necessary.  20  It  must  appear  that 
the  attention  of  the  State  court  was  called  to  the  particular  clause  of  the 
Constitution  on  which  a  party  relies. 1  Objection  that  evidence  is  incom- 
petent and  irrelevant  will  not  raise  a  Federal  question. 2  The  alleged  in- 
validity of  a  law  under  the  Federal  Constitution  must  be  distinctly 
stated.3  Objection  that  act  is  "unconstitutional  and  void'"  raises  ques- 
tion of  validity  under  State,  and  not  under  Federal  Constitution. 4  Objection 
that  an  act  is  in  contravention  of  the  Federal  Constitution,  treaties  and 
laws  is  insufficient. 5  Objection  that  court  acted  without  jurisdiction  or 
color  of  authority,  is  too  vague  to  raise  the  question  of  due  process  of 
law.6  So  also  is  an  allegation  that  some  of  parties  to  decree  were  dead, 
and  others  not  duly  served.  7  An  assignment  of  error  that  a  State  decision 
is  against  the  Fourteenth  Amendment  is  too  vague ;«  so  also  is  an  alle- 
gation on  motion  for  new  trial,  that  judgment  is  "contrary  to  law." 9 

isBank  v.  McVeigh,  98  U.  S.  33.3,  Chicago.  202  U.  S.  275,  50  L.  ed.  1026. 

25  L.  ed.  110;  Allen  v.  McVeigh,  107  26   Sup.  Ct.   Rep.   617. 

U.  S.  435,  27  L.  ed.  572,  2  Sup.  Ct.  2Farney  v.  Towle,  1  Black,  3.50,  17 

Rep.  558.  L.  ed.  216;  Hoyt  v.  Sheldon,  1  Black, 

leChicago,  etc.  Ry.  v.  Illinois,  200  521.  17  L.  ed.  65;  Brooks  v.  Missouri, 

U.  S.  561,  50  L.  ed.  596,  26  Sup.  Ct.  124  U.  S.  395,  31  L.  ed.  454,  8  Sup. 

Rep.  341.     See  infra,  note  [jl.  Ct.  Rep.  443.     But  see  Bridge  Prop. 

isTexas,   etc.   Rv.   v.    Southern  P.  v.  Hoboken  Co.  1  Wall  142,  17  L.  ed. 

Co.   137  U.  S.  53,^34  L.   ed.  614,   11  571. 

Sup.  Ct.  Rep.  10;  Schuvler  Nat.  Bank  3Le\^  v.  Superior  Court,  167  U.  S. 

V.   Bollong,   150  U.   S.'  90,   37   L.  ed.  177,  42  L.  ed.   126,  17  Sup.  Ct.  Rep. 

1010,   14  Sup.   Ct.  Rep.  24;   Bobb  v.  769:    Harding  v.   Illinois,   196   h.  S. 

Jamison,  155  U.  S.  416,  39  L.  ed.  206,  78,  49  L.  ed.  394,  25  Sup.  Ct.  Rep.  176. 

15   Sup.    Ct.   Rep.    357:    Sayward   v.  4Porter  v.  Foley,  24  How.  420,   16 

Denny,  158  U.  S.  183,  39  L.  ed.  941,  L.    ed.    740;    Miller   v.    Cornwall   R. 

15  Sup.  Ct.  Rep.  777.  R.  168  L.  S.   134,  42  L.  ed.   409,   18 

i9Union  Mut.  L.  I.  Co.  v.  Kirkshoff,  Sup.  Ct.  Rep.  34. 

169  U.  S.  107,  42  L.  ed.  677,  18  Sup.  sMessenger  v.  Mason,  10  Wall.  510, 

Ct.  Rep.  260.  19  L.  ed.  1028. 

20Creen  Bay,  etc.  Co.  v.  Patten  P.  eHanford  v.  Davies.  163  U.  S.  279, 

Co.   172  U.   S.  67,  43  L.  ed.  364,  19  41  L.  ed.  157,  16  Sup.'  Ct.  Rep.  1051. 

Sup.  Ct.  Rep.  97.  "Oxley  S.  Co.  v.  Butler  Co.  106  U. 

lOxlev  Stave  Co.  v.  Butler  Co.  166  S.   660,   41   L.   ed.  1149,    17  Sup.   Ct. 

U.  S.  655,  41  L.  ed.  1149,  17  Sup.  Ct.  Rep.  709. 

Rep.   709;Coiunibia  Water  P.  Co.  v.  sciark  v.  McDade,   165  U.  S.   172, 

Street  Ry.  Co.  172  U.  S.  480.  43  L.  ed.  41   L.  ed.  673,  17  Sup.  Ct.  Rep.  284. 

521.  19  Sup.  Ct.  Rep.  247;  Hulbert  v.  sCapitol  Bank  v.  Cadiz  Bank,  172 

216 


m 


Procedure]  ON   WRIT   OF   ERROR   TO   STATE    COURTS.  S  38   [dl 

The  question  may  be  raised  in  the  pleadings,  or  in  a  petition  for  re- 
moval; lo  or  in  motion  to  set  aside  an  order  sustaining  a  demurrer;  n  or  in 
a  request  for  instructions.! 2  it  is  enough  if  the  record  clearly  shows  that 
trial  court  clearly  understood  that  the  unsuccessful  party  was  relying  on  a 
Federal  claim  is 

Where  the  Federal  question  is  first  raised  in  the  State  trial  court  after 
remand  from  the  highest  State  court,  and  is  a  attempt  to  relitigate  ques- 
tions concluded  by  the  appeal  and  not  permissible  imder  the  State  prac- 
tice, the  Supreme  Court  will  also  hold  it  to  be  too  late  and  dismiss  writ 
of  error  presented  to  the  State  judgment  on  the  second  appeal.  1* 

But  in  many  cases  the  Federal  question  may  be  first  raised  in  the  appel- 
late State  court,  and  where  it  is  there  decided  adversely,  error  will  lie;i5 
even  though  by  reason  of  the  State  practice  in  States  like  New  York  and 
Massachusetts,  the  writ  is  directed  to  a  lower  court  which  has  the  record 
and  in  which  the  Federal  question  may  not  have  been  raised.16  It  must 
however,  be  raised  before  final  judgment. 1 7.  It  is  too  late  when  first 
raised  in  the  petition  for  writ  of  error.is  It  is  too  late  when  first  raised 
in  petition  for  rehearing,  if  the  petition  is  not  granted,  and  there  is  no 
denial  of  the  contention  in  the  refusal  to  grant  it.is  It  is  too  late  when 
raised  after  denial  of  rehearing  in  application  for  oral  argument,2  0  or  in 
motion  for  transfer  to  court  in  bank.i    But  where  the  State  court  in  grant- 


U.  S.  431,  43  L.  ed.  502,  19  Sup.  Ct.  Fowler  v.  Lamson,  164  U.  S.  255,  41 

Rep.  202.  L.    ed.   424,    17    Sup.    Ct.    Rep.    112; 

lOGibson  v.  Mississippi,  102  U.  S.  California  Nat.  Bank  v.  Stateler,  171 

587,  40  L.  ed.  1075,  16  Sup.  Ct.  Rep.  U.  S.  446,  43  L.  ed.  233,  19  Sup.  Ct. 

904.  Rep.    6;    Scudder   v.   Comptroller    of 

iiMeyer  v.  Richmond.  172  U.  S.  91,  N.  Y.  175  U.  S.  -36,  44  L.  ed.  62,  20 

43  L.  ed.  374,  19  Sup.  Ct.  Rep.  106.  Sup.  Ct.  Rep.  26. 

i2National    Bldg.     etc.    Assoc,    v.  isLeeper  v.  Texas,  139  U.  S.  407, 

Braham,  193  U.  S.    635.  49  L.  ed.  823,  35  L.  ed.  225,  11  Sup.  Ct.  Rep.  577; 

24  Sup.  Ct.  Rep.  532.  California  P.  Works  v.  Davis,  151  U. 

iSLavaguino   v.   Uhlig,    198   U.    S.  S.  393,  38  L.  ed.  206,  14  Sup.  Ct.  Rep. 

443,  49  L.  ed.  1119,  25  Sup.  Ct.  Rep.  350;  Wabash  R.  R.  v.  Flannigan,  192 

716.  U.  S.  29,  49  L.  ed.  328,  24  Sup.  Ct. 

nUnion  M.  L.  I.  Co.  v.  Kirchoff,  Rep.  224;  Mulbert  v.  Chicago,  202  U. 

169  U.  S.  103,  42  L.  ed.  677,  18  Sup.  S.  275,  50  L.   ed.   1026,  26  Sup.   Ct. 

Ct.  Rep.  200;   Yazoo  &  ]\I.  V.  R.  R.  Rep.  617. 

v.  Adams,  180  U.  S.  8.  45  L.  ed.  401,  is  Susquehanna  B.  Co.  v.  Branch  B. 

21  Sup.  Ct.  Rep.  240;  Northern  P.  R.  Co.  110  U.  S.  58,  28  L.  ed.  69,  3  Sup. 

Co.  V.  Ellis,  144  U.  S.  458,  36  L.  ed.  Ct.    Rep.     438;     Texas,     etc.   Rv.   v. 

504,  12  Sup.  Ct.  Rep.  724.  Southern  P.  Co.  137  U.  S.  54,  34  L. 

isSully    v.    American    Nat.    Bank,  ed.  614,  11  Sup.  Ct.  Rep.  10;  Loeber 

178  U.  S.  298,  44  L.  ed.  1076,  20  Sup.  v.  Schroeder,  149  U.  S.  585,  37  L.  ed. 

a.  Rep.  935.  856,  13  Sup.  Ct.  Rep.  934;  Turner  v. 

isRothschild  V.  Knight,  184  U.  S.  Richardson,   180  U.  S.  92.  45   L.  ed. 

339,  46  L.  ed.    573,  22  Sup.  Ct.  Rep.  440,  21  Sup.  Ct.  Rep.  295;   lieus  of 

391.    See  supra,  note.tb]  Poydras  v.  Treasurer  of  La.  18  How. 

iTBoller  V.  Nebraska,  176  U.  S.  92,  196,  15  L.  ed.  350;  McMillen  v.  Fer- 

44  L.  ed.  385,  20  Sup.  Ct.  Rep.  287;  rum  M.  Co.  197  U.  S.  343,  49  L.  ed. 
Simraerman  v.  Nebraska,   116   U.  S.  784,  25  Sup.  Ct.  Rep.  533. 

54,  29  L.  ed.  535,  6  Sup.  Ct.  Rep.  333;  20Butler  v.  Gage.  138  U.  S.  61,  34 

Morrison  v.  Watson,   154  U.   S.   115,  L.  ed.  869,  11  Sup.  Ct.  Rep.  235. 

38  L.  ed.  927,  14  Sup.  Ct.  Rep.  995;  iDuncan    v.    Missouri,    152    U.    S. 

217 


§  38   [e] 


THE   SUPREME    COURT. 


[Code   Fed. 


ing  or  denying  the  rehearing  actually  passes  adversely  on  the  Federal  con- 
tention, error  may  lie.2  Where  the  Federal  question  involves  some  action 
of  the  trial  court  in  the  admission  of  evidence  or  general  conduct  of  the 
trial  it  must  have  been  set  up  in  the  trial  court,  and  by  familiar  rules 
cannot  be  first  raised  on  appeal.3  As  is  elsewhere  seen  a  State  decision 
that  a  party  has  lost  his  right  to  have  a  question  passed  upon  by  failure 
to  except  or  appeal,  is  not  reviewable.*  Where  the  Federal  question  is 
first  raised  after  decision  in  an  intermediate  appellate  court,  but  the  final 
State  court  ignores  it,  it  must  affirmativelj'  appear  that  this  was  not  due 
to  the  failure  to  raise  it  earlier. 5 

The  Supreme  Court  decides  for  itself,  uncontrolled  by  the  opinion  of 
the  State  court,  whether  the  Federal  question  was  sufficiently  pleaded  or 
brought  to  the  State  court's  attention. 6 

[e]     Certificate  of  State  chief  justice  that  Federal  question  raised. 

In  the  absence  of  anythirig  in  the  record  to  show  that  a  Federal  ques- 
tion was  raised,  the  certificate  of  the  chief  justice  of  the  State  court  that 
it  was,  is  insufficient  evidence-S  It  cannot  supply  a  want  of  evidence  to 
that  effect  in  the  record  and  of  itself  give  jurisdiction. 9  The  judgment 
of  the  State  court,  and  not  the  certificate  determines  the  tiuestion;io  al- 
though the  latter  is  entitled  to  great  weight  in  case  of  doubt. n  Its  pur- 
pose is  to  make  more  certain  that  which  is  too  general  or  indefinite  in  the 
record  'and  not  to  originate  the  question  or  to  overthrow  a  conclusion  ob- 
vious from  the  face  of  the  record. 12  In  the  absence  of  an  opinion  it  may 
be  resorted  to,  to  show  that  a  law  alleged  to  impair  contracts  was  up- 
held,! s  though  it  cannot  give  jurisdiction  when  failing  to  state  the  statute 
80  questioned. 14     It  is  not  a  technical  part  of  the  record; is  and  it  does  not 


383,  38  L.  ed.  485.  U  Sup.  Ct.  Eep. 
570. 

2jViallett  V.  North  Carolina,  181  U. 


'J Felix  V.  Schamweber.  125  U.  S. 
59,  31  L.  ed.  687,  8  Sup.  Ct.  Rep.  759; 
Sayward  v.  Denny,  158  U.  S.  183,  39 


S.   592,   45  L.  ed.   1018,   21    Sup.   Ct.  L.  ed.  941,  15  Sup.  Ct.  Rep.  777. 

Rep.  730;  Missouri,  etc.  Ry.  v.  Elliott,  loPowell  v.  Brunswick  Co.  150  U. 

184  U.  S.  534,  46  L.  ed.  673,  22  Sup.  S.   439.   37  L.   ed.   1134,   14   Sup.   Ct. 

Ct.  Rep.  446;    Leigh  v.  Green,  193  U.  Rep.  166. 

S.  79,  48  L.  ed.  623,  24  Sup.  Ct.  Rep.  nCaperton    v.    Bowyer,     14   Wall. 

390.  234,   20   L.    ed.    882;    Rector   v.    City 

sSpies   V.   Illinois,    123   U.   S.    181,  Dep.  Bank.  200  U.  S.  405,  50  L.  ed. 

31  L.  ed.  80,  8  Sup.  Ct.  Rep.  21,  22.  527,  26  Sup.  Ct.  Rep.  289. 

4Infra,  note.[h]-[i]  i2Dibhle   v.   Bellingham   Bay,   etc. 

sChicago,   etc.   R.   R.    v.   McGuire,  Co.  163  U.  S.  70,  41  L.  ed.  72,  16  Sup. 

196  U.  S.  129,  49  L.  ed.  413,  25  Sup.  Ct.  Rep.  939. 

Ct.  Rep.  200.  isGulf,  etc.  R.  R.  v.  Hewes,  183  U. 

6Erie  R.  R.  v.  Purdy,  185  U.  S.  152,  S.  69,  46  L.  ed.  86.  22  Sup.  Ct.  Rep. 

46  L.  ed.  847,  22  Sup.  Ct.  Rep.  605.  26.     See  Armstrong  v.  Athens  Co.  16 

sHome  for  Incurables  v.  New  York.  Pet.  286,  10  L.  ed.  965. 


i4Lawler  v.  Walker,  14  How.  152, 
14  L.  ed.  364;  Yazoo,  etc.'  R.  R.  v. 
\dams,  180  U.  S.  48,  45  L.  ed.  418, 


187  U.  S.  155,  47  L.  ed.  117,  23  Sup 
Ct.  Rep.  84,  and  cases  cited.  Rail 
road  Co.  v.  Rock,  4  Wall.  180,  18  L 

ed.  381;  Lawler  v.  Walker,  14  How.  21  Sup.  Ct.  R«p.  256 
154,  14  L.  ed.  364;  Henkel  v.  Ciincin-  isHome  for  Incurables  v.  New 
nati,  177  U.  S.  171,  44  L.  ed.  721,  20  York,  187  U.  S.  155,  47  L.  ed.  117,  23 
Sup.  Ct.  Rep.  573.  Sup.  Ct.  Rep.  84. 

218 


Procedure! 


ON  WRIT  OF  ERROR  TO   STATE    COURTS. 


§   38    [gl 


restrict  the  Supreme  Court's  power  to  determine  for  itself  whether  a  Fed- 
eral question  was  involved.is  A  certificate  by  an  associate  State  justice, 
not  shown  to  be  acting  chief  justice,  is  valueless. if  A  certificate  by  the 
whole  court  would  seem  to  be  subject  to  the  same  rules.is 

[f]  Federal   question    raised   must   not   be  wholly   fictitious    or    without 

merit. 
Since  the  adoption  of  the  Fourteenth  Amendment  it  has  been  possible 
to  raise  a  plausible  Federal  question  in  a  very  large  number  of  State 
cases,  and  the  Supreme  Court  has  endeavored  to  guard  against  the  practice 
of  invoking  its  jurisdiction  merely  for  purposes  of  delay.  Hence  the  rule 
that  the  bare  averment  of  a  Federal  question  is  not  in  all  cases  sufficient. 
It  must  be  at  least  colorable  and  not  wholly  without  merit. i  It  must  be 
real  and  not  fictitious. 2  It  must  be  such  that  its  mere  mention  does  not 
show  it  to  be  destitute  of  merit. 3  If  the  claim  be  wholly  without  merit 
the  writ  will  be  dismissed.  It  must  be  some  question,  not  explicitly  fore- 
closed by  prior  Federal  decisions.* 

[g]  Party  must  make  Federal  claim  on  his  own  behalf. 

A  party  setting  up  a  Federal  riglit  or  title  must  do  so  on  his  own  behalf 
in  order  to  obtain  a  review  of  an  adverse  State  decision  thereon. 5  Hence 
it  does  not  bring  a  case  within  R.  S.  §  709  where  a  party  in  ejectment 
alleges  an  outstanding  title  in  a  third  person  which  is  based  upon  Federal 
treaty  or  laws; 6  or  an  outstanding  title  in  the  United  States. 7  The  set- 
ting up  of  a  Federal  right  or  title  in  a  third  person  under  whom  plaintiff 
in  error  does  not  claim,     will  not  confer  a  right  of  review.s     To  entitle 


isNewport'L.  Co.  v.  Newport,  151 
U.  S.  536.  38  L.  ed.  259,  14  Sup.  Ct. 
Rep.  429 ;  Dibble  v.  Bellingham  B.  Co. 
103  U.  S.  69,  41  L.  ed.  72,  16  Sup.  Ct. 
Rep.  939. 

imavnor  v.  Xow  York.  170  U.  S. 
409,  411,  42  L.  ed.  1087,  18  Sup.  Ct. 
Rep.  631. 

isRector  v.  City  Dep.  Bank,  200  U. 
S.  405.  50  L.  ed.  527,  26  Sup.  Ct. 
Rep.  239. 

iMiUingar  v.  Hartupee,  6  Wall. 
258.  18  L.  ed.  829;  New  Orleans  v. 
Water  Works,  142  U.  S.  79.  87.  35  T.. 
ed.  946.  12  Sup.  Ct.  Rep.  142:  Wil- 
son v.  North  Carolina,  169  l^  S.  595, 
42  L.  ed.  865,  18  Sup.  Ct.  Rep.  435; 
Illinois  C.  R.  R.  v.  Chicago.  176  U. 
S.  656.  44  L.  ed.  626.  20  Sup.  Ct.  Ren. 
509;  Sawver  v.  Piper.  189  U.  S.  157, 
47  L.  ed.  759,  23  Sup.  Ct.  Rep.  033. 

2TTaml)lin  v.  Western  L.  Co.  147 
C.  S.  532,  37  L.  ed.  267.  13  Sup.  Ct. 
Rep.  353:  St.  Louis,  etc.  Ry.  v.  Mis- 
souri, 156  U.  S.  483.  39  L.  ed.  502, 
15    Sup.    Ct.    Rep.    443;    St.    Joseph, 


etc.  R.  R.   V.   Steele,   167   U.   S.   662, 
42  L.  ed.  315,   17   Sup.  Ct.  Rep.  925. 

3I\ew  Orleans  Works  v.  Louisiana. 
185  U.  S.  345.  46  L.  ed.  936.  22  Sup. 
Ct.  Rep.  691. 

■^Leonard  v.  Vicksburg,  etc.  R.  R. 
198  U.  S.  416.  49  L.  ed.  1108,  25  Sup. 
Ct.   Rep.   750. 

5W>nn  V.  Morris,  20  How.  5.  15  L. 
ed.  800. 

sowings  V.  Norwood,  5  Cranch, 
348.  3  L.  ed.  120;  Verden  v.  Coleman, 
1  Black.474, 17L.  ed.  161  ;  Henderson 
V.  Tennessee,  10  How.  323. 13  L.  ed.  434. 

TLong  V.  Lonverse,  91  U.  S.  114,  23 
L.  ed.  233;  Miller  v.  Lancaster  Bank. 
106  U.  S.  544,  27  L.  ed.  289,  1  Sup. 
Ct.  Rep.  536;  Giles  v.  Little.  134  U. 
S.  045,  33  L.  ed.  1062,  10  Sup.  Ct. 
Rep.  623;  Ludeling  v.  Chalfer.  143  U. 
S.  305,  36  L.  ed.  313.  12  Sun.  Ct.  Rep. 
439;  Texas,  etc.  Rv-  v.  .Jolinson.  151 
U.  S.  98,  38  L.  ed.  81,  14  Sup.  Ct. 
Rep.  250. 

8  Hale  V.  Gaines,  22  How.  160,  16 
L.  ed.  264. 
>19 


§  38   [h]  THE   SUPREME   COURT.  [Code  Fed. 

a  party  to  review  the  Federal  title  or  right  denied  must  be  directly  in 
issue  affecting  plaintiff  in  error  and  not  a  third  person  only. 9  One  not 
privy  to  a  contract  cannot  assert  its  impairment  so  as  to  give  the  Supreme 
Court  jurisdiction  on  error.io  A  party  having  actual  notice  is  not  en- 
titled to  writ  of  error  to  review  a  statute  claimed  to  work  a  deprivation  by 
providing  only  constructive  notice. n 

[h]  Necessity  that  State  decision  be  adverse  to  the  Federal  claim  or 
right  set  up. 
A  State  decision  sustaining  a  Federal  right,  title  or  exemption  is  not  re- 
viewable,i2  nor  one  sustaining  a  claim  under  the  ordinance  of  1787 ;i3  or 
sustaining  a  tax  exemption ;i4  or  sustaining  an  avithority  exercised  by  an 
officer  of  land  or  treasury  department ;  1 5  or  sustaining  validity  of  bank- 
ruptcy proceedings;  16  or  dismissing  a  claim  attacking  a  Federal  right. 1 7 
Where  plaintiff  in  error  is  the  one  denying  the  validity  of  a  Federal  law,  his 
suit  will  be  dismissed.!  8  A  decision  that  a  State  law  is  invalid  upon  Fed- 
eral grounds  is  not  reviewable;  19  neither  is  a  decision  that  a  Federal  law 
is  valid; 20  nor  a  State  decision  upholding  the  jurisdiction  of  a  provost 
court;!  nor  one  evading  a  decision  of  the  point  that  a  later  law  attempted 
to  alter  an  earlier  contract;  2  nor  a  decision  in  favor  of  a  title  resting  upon 
an  act  of  Congress; 3  nor  a  decision  in  favor  of  the  right  of  the  court  of 
Alabama  claims  to  disbar  an  attorney. *  A  decision  sustaining  a  conten- 
tion that  a  contract  violated  the  interstate  commerce  law  is  not  review- 
able in  the  Supreme  Court.5  As  appears  plainly  from  the  wording  of  R.  S. 
§  709,  the  Federal  statute,  authority,  right  or  title,  must  not  only  be 
drawn  in  question,  but  the  decision  must  be  against  the  right  claimed. 6 

9Conde  v.  York,  168  U.  S.  648,  42        isCongdon.   etc.    Co.    v.    Goodman, 
L.  ed.  Gil,  18  Sup.  Ct.  Rep.  234.  2  Black,  575,  17  L.  ed.  257. 

loPinney  v.    Sheppard,   etc.   Trus-        is  Bank  of  Kentucky  v.  Griffith,  14 
tees,  177  U.  S.  170,  44  L.  ed.  720,  20    Pet.  58,  10  L.  ed.  352. 
Sup.  Ct.  Rep.  573.  2  0Roosevelt  v.  Mever,  1  Wall.  517, 

iiTyler  v.  Judges,  179  U.  S.  405,  45    12  L.  ed.  500. 
L.  ed.  252,  21  Sup.  Ct.  Rep.  206.  iMechanics'  Bank  v.  Union  Bank, 

i2Missouri  v.  Andriano,  138  U.  S.    22  Wall.  297,  22  L.  ed.  871. 
499,  34  L.  ed.  1012,  11  Sup.  Ct.  Rep.        2Kreiger  v.  Shelby  R.  Co.   125  U. 
385;  Gordon  v.  Coldcluegh,  3  Cranch,    S.  46,  31  L.  ed.  675,  8  Sup.  Ct.  Rep. 
269,  2  L.   ed.  436;    Strader  v.   Bald-    752. 

win,  9  How.  262,  13  L.  ed.  130;  sFulton  v.  McAffee,  16  Pet.  152, 
Swope  V.  Leffingwell,  105  U.  S.  4,  26  10  L.  ed.  918;  Burke  v.  Gaines,  19 
L.  ed.  9.39.  How.  390,   15    L.    ed.    055;   Scott  v 

isMenard  v.  Aspasia,  5   Pet.   517,    Jones,    5   How    375,    12    L.    ed.    181; 
8  L.  ed.   207.  Verden  v.  Coleman,  1  Black,  474,  17 

i4Tyler  v.  Cass  Co.  142  U.  S.  290,   L.  ed.  161. 
35  L.  ed.  1016,  12  Sup.  Ct.  Rep.  225.        4Manning'v.  French,  133  U.  S.  192, 

i5Hale  V.  Gaines,  22  How.  160.  16    33  L.  ed.  582,  10  Sup.  Ct.  Rep.  258. 
L.  ed.  264;  Bartlett  v.  Lockwood.  100        sKizer  v.  Texarkana,  etc.  Ry.  179 
U.  S.  308,  40  L.  ed.  455,  16  Sup.  Ct.    U.  S.  201,  45  L.  ed.  152,  21   Sup.  Ct. 
Rep.    334.  Rep.  100. 

i6Linton  v.  Stanton,  12  How.  426,        cFulton  v.  McAffee,  16  Pet.  152,  10 
13  L.  ed.  1050.  L.  ed.   918;    Brown  v.  Colorado,   106 

iTReddall  v.   Bryan,  24  How.  422,   U.   S.  97,   27  L.  ed.   132,  1    Sup.   Ct. 
16  L.  ed.  740.  Rep.  175;   Winter  v.  City  Council  of 

220 


Procedure] 


ON    WRIT  OP    ERROR   TO    STATE    COURTS. 


§   38   [h] 


It  need  not  appear  that  that  decision  was  erroneous  to  enable  the  Supreme 
Court  to  take  jurisdiction,  though  of  course  it  must  be  shown  erroneous  to 
justify  a  reversal.^  A  decision  that  a  matter  became  res  adjudicata  in  a 
State  court  prior  to  a  Federal  decree  does  not  deny  effect  to  that  decree. 8 
Where  a  State  decision  does  not  deal  with  a  question  of  evidence  as  a 
Federal  question  the  Supreme  Court  will  not  do  so. 9 

But  it  is  not  always  necessary  that  the  State  court  refer  to  the  Federal 
contention  if  they  necessarily  have  decided  against  it.n  It  is  not  essen- 
tial that  the  State  court  should  specifically  notice  the  Federal  contention 
in  its  opinion.i2  It  must  appear  either  that  a  Federal  question  was  decid- 
ed, or  that  judgment  as  rendered  could  not  have  been  given  without  de- 
ciding it.13  .An  adverse  decision  of  the  Federal  question  must  have  been 
necessarily  involved  in  the  adjudication.! *  The  test  is:  could  the  judg- 
ment as  rendered,  have  been  given  without  deciding  a  Federal  quest  ion.  is 
It  is  not  every  decision  against  a  party  raising  a  Federal  question  that  is 
reviewable,  for  the  decision  may  go  against  the  party  on  many  groimds 
without  touching  the  merits  of  the  Federal  question  raised.  Thus  the 
appellate  State  court  may  rest  its  affirmance  of  the  judgment  below  on 
some  queston  of  practice  or  pleading  or  may  dismiss  the  suit  for  want 
of  jurisdiction  and  such  a  decision  is  not  adverse  to  a  Federal  right  or 
claim. 16  Or  it  may  find  that  the  party  has  waived  the  right  to  set  up 
the  Federal  claim  ;!■?   or  it  may  decide  that  judgment  should  go  against 


Montgomery,  156  U.  S.  386,  30  L.  ed.  114  U.  S.  136,  29  L.  ed.  118.  5  Sup. 

460,    15     Sup.     Ct.    Rep.    049;    Call-  Ct.   Rep.   811;    Marrow  v.   Brinkiey, 

fornia    v.    Holladay,    159  U.  S.  417,  129  U.  S.  181,  32  L.  ed.  654,  9  Sup. 

40  L.    ed.    202,     10     Sup.     Ct.   Rep.  Ct.    Rep.   207;    Hagar  v.    California, 

53;  Harrison  v.  Morton.  171  U.  S.  47,  154  U.  S.  639,  24  L.  ed.  1044,  14  Sup. 

43  L.  ed.  63,   18  Sup.  Ct,   Rep.  742;  Ct.   Rep.   1186;    Chicago,  etc.   Ry.   v. 

Weatberly  v.  Bowie.  131  U.  S.  cerv.  Illinoie.  200  U.  S.  561,  50  L.  ed.  596, 

25  L.  ed.  606;   Powell  v.   Brunswick  26  Sup.  Ct.  Rep.  341. 

Co.  150  U.  S.  440,  37  L.  ed.  1134,  14  i^Chicago,  etc.  Ins.  Co.  v.  Needles, 

Sup.  Ct.  Rep.  166;  Avery  v.  Popper,  113  U.  S.  579,  28  L.  ed.  1084,  5  Sup. 

17!)  U.  S.  314,  45  L.  ed.  207,  21  Sup.  Ct.  Rep.  681;  Williams  v.  Bruffy,  96 

Ct.  Rep.  94.  U.  S.  184.  24  L.  ed.  716. 

TFurman  v.  Nichol,  8  Wall.  56,  19  15 Walter  A.  Wood  Co.  v.  Skinner, 

L.  ed.  370.  139  U.  S.  295,  35  L.  ed.  193,  11  Sup. 

SNorthem  P.  R.  R.  v.  Ellis,  144  U.  Ct.  Rep.  528. 

S.  465,  36  L.  ed.  504,  12  Sup.  Ct.  Rep.  leMatheson  v.   Bank  of  INIobile.   7 

724.  How.  261,  12  L.  ed.  692;   Sample  v. 

sMallett  V.  North  Carolina,  181  U.  Hagar.  4  Wall.   434,   18  L.  ed.   402; 

S.  601,  45  L.   ed.   1020,   21   Sup.   Ct.  Chippell  Chem.  Co.  v.    Sulphur,    etc. 

Rep.  730.  Co.  172  U.  S.  473,  43  L.  ed.  520,   19 

iiYazoo,  etc.  Ry.  v.  Adams,  180  U.  Sup.  Ct.  Rep.  268;  Semple  v.  Hagar, 

S.  15,  45  L.  ed.  404.  21  Sup.  Ct.  Kep.  4  Wall.  434.  18  L.  ed.  402;   Smith  v. 

240;  Railroad  v.  Maryland,  21  Wall.  Adsit.   16  Wall.    188,  21   L.  ed.   310: 

469,  22  L.  ed.  678.  Commercial    Bank    v.   Rochester,   15 

i2Arrow8mith    v.    Harmoning,  118  Wall.  042,  21  L.  ed.  117;  Chouteau  v. 

U.  S.  195,  30  L.  ed.  243,  6  Sup.  Ct.  Gibson,  111  U.  S.  201,  28  L.  ed.  400, 

licit.  1023.  4  Sup.  Ct.  Rep.  340, 

isBrown  v.   Atwell,  92  U.   S.  329,  iTInfra,  note.Cil 
23  L.  cd.  511 ;  Detroit  Ry.  v.  Guthard, 

221 


§   38   [i]  THE    SUPREME    COURT.  [Code  Fed. 

the  party  on  the  merits  upon  broad  principles  of  law  which  do  not  involve 
any  consideration  of  the  Federal  question. is 

LiJ  State  decision  that  right  to  raise  Federal  question  is  lost  by  estoppel, 
waiver,  or  defect  of  procedure. 
In  a  number  of  cases  decision  has  gone  against  a  party  raising  a  Federal 
(juestion,  not  because  the  contention  was  itself  deemed  without  merit  but 
because  the  party  was,  for  technical  reasons,  not  competent  to  raise  it 
and  procure  a  decision  on  the  merits.  Such  a  decision  is  not  adverse  to 
the  Federal  question  but  merely  to  the  power  of  the  party  to  raise  it. 
Hence  a  decision  that  a  party  is  estopped  to  question  the  validity  of  a 
statute  on  Federal  grounds,  or  has  waived  a  Federal  right,  is  not  a  de- 
cision denying  a  Federal  claim  or  right,  and  is  not  reviewable.!  Neither 
is  a  decision  that  a  party  is  estopped  to  deny  the  validity  of  a  mining- 
location.  2  Where  a  party  has  claimed  a  right  of.  removal  to  the  Federal 
court,  and  the  trial  court  has  decided  adversely  he  will  not  have  a  right 
of  writ  of  error  to  the  highest  State  court  where  he  fails  to  take  a 
proper  and  timely  appeal; 3  or  where  the  appellate  court  finds  that  he 
failed  to  note  an  exception  to  the  adverse  ruling  and  so  loses  a  right  to 
have  it  reviewed.*  When  the  State  court  treats  the  Federal  contention  as 
abandoned  by  the  party  raising  it,  there  is  no  right  of  review. 5  A  failure 
to  except  to  refusal  to  allow  amendment  of  pleading  will  forfeit  a  right  to 
review. 6  A  State  decision  declining  to  pass  upon  a  Federal  question  be- 
cause not  properly  raised  below,  is  not  reviewable. v  When  by  the  settled 
State  practice  the  State  supreme  court  is  justified  in  refusing  to  pass  on  a 
Federal  question  either  because  not  assigned  or  not  argued  or  urged,  there 
is  no  right  to  writ  of  error.s 

[j]     State  decision  sustainable  on  non-Federal  ground  not  reviewable. 

Since  it  is  a  decision  against  the  Federal  right  or  claim  and  not  against 
the  party  raising  it,  that  is  reviewable,  writ  of  error  will  not  lie  where 
the  State  decision  is  sustainable  upon  non-Federal  grounds.  Hence  where 
the  record  shows  a  Federal  and  a  non-Federal  question,  and  the  case  was 
disposed  of  below  on  the  latter  there  is  no  right  of  review;  9  or  if  it  might 

isinfra,  note.lH  sTripp   v.    Santa   Rosa    St.   R.    R. 

lEustis  V.   Bolles.   150  U.    S.   3G9,  144  IT.  s.  130,  36  L.  ed.  372.  12  Sup. 

37  L.  ed.  1111.  14  Sup.  Ct.  Rep.  131;  Ct.  Rep.  655. 

Electric  Co.  v.   Dow,   166  U.   S.  492,  4Fashnacht  v.  Frank,  23  Wall.  419. 

41  L.  ed.  1088,  17  Sup.  Ct.  Rep.  645;  23  L.  ed.  81. 

Pierce  v.  Somerset  Rv.  171  U.  S.  648,  sWeatherbv   v.   Bowie,    131    U.    S. 

43  L.  ed.   316,   19   Sup.   Ct.  Rep.   64;  ccxv.  25  L.  ed.  606. 

Hale  V.  Lewis,  181  U.  S.  480,  4.5  L.  ed.  eRiplev  v.   Illinois,  170  U.  8.  187. 

963,  21   Sup.   Ct.  Rep.  677;   Western  42  L.  ed.'998,  18  Sup.  Ct.  Rep.  550. 

E.  Co.  V.  Abbeville,  etc.  Co.  197  U.  S.  7Erie  R.  R.  v.  Purdy,  185  U.  S.  154. 

299,  49  L.  ed.  765,  25  Sup.  Ct.  Rep.  46  L.  ed.  847,  22  Sup.  Ct.  Rep.  605. 

481.  SHulbert  v.  Chicago,  202  U.  S.  275, 

2Lowry  v.   Silver   City  :\I.   Co.   179  50  L.  ed.  1026,  26  Sup.  Ct.  Rep.  617. 

U.  S.  198,  45  L.  ed.  152,  21   Sup.  Ct.  sKennebec    v.    Portland    R.    R.    14 

Rep.  104.  Wall.  26,  20  L.  ed.  850;  Adams  Co.  v. 

222 


Procedure] 


ON    WRIT   OF    ERROR    TO    STATE    COURTS. 


§  38  Lj] 


have  been  so  disposed  of.io  Moreover  if  the  record  does  not  show  that 
the  decision  below  was  on  the  non-Federal  ground  yet  error  will  not  lie 
if  a  non-Federal  ground  is  apparent  upon  which  the  decision  might  be 
rested;  11  so  that  the  decision  would  have  been  the  same  if  no  Federal 
question  had  been  raised.  12  The  cases  go  even  further  and  hold  that  where 
the  decision  rests  on  grounds  broad  enough  to  sustain  judgment  irrespec- 
tive of  the  Federal  question  the  Supreme  Court  will  not  take  jurisdiction 
though  the  Federal  question  was  wrongly  decided.is  And  if  a  decision 
sustains  a  State  laAv  questioned  on  Federal  grounds,  error  will  not  lie  if 
the  judgment  in  fact  went  on  another  ground  which  left  the  statute  in- 
applicable. 1*  A  hypothetical  discussion  and  adverse  opinion  on  a  Federal 
(juestion  give  no  right  to  writ  of  error.is  Other  cases  extract  from  these 
])rinciples  the  rule  that  where  it  does  not  appear  that  the  case  was  nec- 
essarily decided  in  the  State  court  on  the  question  of  Federal  cognizance, 
or  that  the  proposition  was  essential  to  the  judgment,  error  will  not  lie.ifi 
It  results  that  where  there  are  grounds  of  local  law  upon  which  the 
State  court  rests  its  opinions,  the  case  is  not  reviewable  on  error  even 
although  the  losing  party  has  set  up  some  Federal  right  or  claim.is.  So 
where  the  State  court  rests  its  decision  upon  general  principles  of  law 
iiroad  enough  to  determine  the  case,  quite  apart  from  any  consideration  of 
the  Federal  right  claimed,  there  is  no  such  adver.se  decision  of  a  Federal 


Burlington,  etc.  R.  R.  112  U.  S.  128, 
28  L.  ed.  078.  5  Sup.  Ct.  Rep.  77; 
Hammond  v.  Johnston,  142  U.  S.  78, 
35  L.  ed.  941.  12  Sup.  Ct.  Rep.  141: 
Dower  v.  Richards.  151  U.  S.  666.  3S 
L.  ed.  305,  14  Sup.  Ct.  Rep.  452; 
-Moran  v.  Horskv.  178  U.  S.  208.  44 
L.  ed.  1039.  20  \Sup.  Ct.  Rep.  856; 
Hale  V.  Lewis.  181  U.  S.  484,  45  L. 
ed.  963,  21  Sup.  Ct.  Rep.  677:  Giles 
V.  Teaslev,  193  V.  S.  146.  48  L.  ed. 
655,  24  Sup.  Ct.  Rep.  3.59;  Leonard 
V.  Vicksburg,  etc.  R.  R.  198  U.  S. 
416,  49  L.  ed.  1108,  25  Sup.  Ct.  Rep. 
750. 

lOAUen  v.  Arguimbau,  198  U.  S. 
149,  49  L.  ed.  990.  25  Sup.  Ct.  Rep. 
622. 

iiRailroad  Co.  v.  Rock.  4  Wall. 
181,  18  L.  ed.  381;  Klinger  v.  Mis- 
souri Co.  13  Wall.  263,  20  L.  ed.  635: 
Steines  v.  Franklin  Co.  14  Wall.  23, 
20  L.  ed.  846:  Johnson  v.  Risk,  137 
U.  S.  307,  34  L.  ed.  683.  11  Sup.  Ct. 
Rep.  Ill;  Walter  A.  Wood  Co.  v. 
Skinner.  139  U.  S.  297,  35  L.  ed.  193, 
11  Sup.  Ct.  Rep.  528. 

i^Williams  v.  Oliver,  12  How.  125, 
13  L.  ed.  915. 

'SHale  V.  Akers,  132  U.  S.  564,  33 
L.  ed.  442.  10  Sup.  Ct.  Rep.  171 :  Dela- 
ware City  Co.  V.  Revbold,   142  U.  S. 


643,  35  L.  ed.  1141,  12  Sup.  Ct.  Rep. 
290;  California  P.  Works  v.  Davis, 
151  U.  S.  393,  .38  L.  ed.  206,  14  Sup. 
Ct.  Rep.  350 ;  Pierce  v.  Somerset  Rv. 
171  U.  S.  648,  43  L.  ed.  316.  19  Sup. 
Ct.  Rep.  64;  Chappell  Chem.  C-o.  v. 
Sulphur,  etc.  Co.  172  U.  S.  471,  43 
L.  ed.  517,  19  Sup.  Ct.  Rep.  265; 
Eagan  v.  Hart.  165  U.  S.  191,  41  L. 
ed.  680.  17  Sup.  Ct.  Rep.  300. 

n Missouri,  etc.  Rv.  v.  Ferris.  179 
U.  S.  605.  45  L.  ed.  339,  21  Sup.  Ct. 
Rep.  231. 

i5Central  P.  R.  R.  v.  California, 
162  U.  S.  115,  40  L.  ed.  903,  10  Sup. 
Ct.  Rep.  766;  Smith  v.  Adsit,  23 
Wall.  373,  23  L.  ed.  114. 

isGibson  v.  Chouteau,  8  Wall.  318. 
19  L.  ed.  317;  Boiling  v.  Lersner,  91 
U.  S.  595,  23  L.  ed.  366 :  Chapman  v. 
Goodnow,  123  U.  S.  548.  31  L.  ed.  235, 
8  Sup.  Ct.  Rep.  211 ;  Powell  v.  Bruns- 
wick Co.  1.50  U.  S.  440.  37  L.  ed.  1134, 
14  Sup.  Ct.  Rep.  100:  California  P. 
Works  V.  Davis.  151  U.  S.  393,  38  L. 
ed.  206,  14  Sup.  tt.  Rep.  350;  Allen 
v.  Arguimbau.  198  U.  S.  149,  49  L. 
ed.  990.  25  Sup.  Ct.  Rep.  622;  Amer- 
ican Exp.  Co.  V.  Iowa.  196  U.  S.  133, 
49  L.  ed.  417.  25  Sup.  Ct.  Rep.  1S2. 

i^Matheson  v.  Bank  of  :Mol)ile.  7 
How.  261.  12  L.  ed.  692;   Hender.son 


223 


§  38   [k]  THE  SUPREME  COURT.  [Code  Fed. 

right  or  claim  as  will  give  a  right  to  review  on  error  ;19  even  upon  the 
theory  that  there  is  a  want  of  due  process  of  law. 20  A  State  decision  rest- 
ing upon  general  principles  of  State  public  policy  as  respects  a  contract  is 
not  reviewable;!  and  it  is  said  that  the  application  by  a  State  court  of 
principles  of  public  policy  and  estoppel  is  not  reviewable. 2 

[k]     State  decision  against  validity  of  Federal  treaty  or  statute. 

If  the  State  decision  upholds  the  Federal  law,  writ  of  error  will  not  lie.* 
Nor  if  it  merely  applies  or  construes  a  law  without  questioning  it.s 
validity. 5  But  a  State  decision  against  the  validity  of  an  act  of  Congress 
is  reviewable.6  A  decision  that  a  state  of  facts  does  not  bving  a  party 
within  the  terms  of  an  act  of  Congress,  does  not  deny  its  vadidity;" 
nor  does  a  decision  which  misconstrues  it.s  An  agreement  between  two 
States,  sanctioned  by  act  of  Congress  is  not  a  Federal  statute  in  this 
sense.9 

[1]  State  decision  against  validity  of  an  authority  exercised  under  the 
United  States. 
This  has  generally  been  deemed  to  refer  to  an  authority  exercised  by 
a  public  officer  of  the  United  States;  and  the  word  "authority"  is  inap- 
plicable as  describing  water  rights  arising  upon  the  public  domain,  upon 
compliance  with  R.  S.  §  23.39; n  or  an  implied  license  to  occupj'^  public 
mineral   lands.  12     A   State   decision  against   the  validity  of  an   authority 

B.  Co.  V.  Henderson,  141  U.  S.  689,        sisreal  v.  Arthur,  152  U.  S.  362,  38 
35  L.  ed.  900,  12  Sup.  Ct.  Rep.  114;    L.  ed.  474.  14  Sup.  Ct.  Rep.  583. 
Chever  v.  Horner,  142  U.  S.   127,  35        ^Roosevelt  v.  Meyer,  1  Wall.   517. 
L.   ed.   959,   12    Sup.    Ct.   Rep.   184;    17  L.  ed.  500. 

Yesler  v.  Washington  H.  L.  Comrs.  sCameron  v.  United  States,  146  U. 
146  U.  S.  657,  36  L.  ed.  1119,  13  Sup.  S.  536,  36  L.  ed.  1077,  13  Sup.  Ct. 
Ct.  Rep.  190;  Remington  P.  Co.  v.  Rep.  184;  Kennard  v.  Nebraska,  186 
Watson,  173  U.  S.  451.  43  L.  ed.  762,  U.  S.  .304,  46  L.  ed.  1175,  22  Sup.  Ct. 
19  Sup.  Ct.  Rep.  456.  See  also  supra.  Rep.  879;  Missouri  Pac.  R.  v.  Fit<- 
note.Ccc]  gerald,  160  U.  S.  576,  40  L.  ed.  536. 

1 9  West  Tennessee  Bank  V.  Citizens'    16  Sup.  Ct.  Rep.  389. 
Bank,  13  Wall.  433,  20  L.  ed.  514;  Ten-        ePickering   v.    Lomax,    145    U.    S. 
nessee  Bank  v.  Bank  of  Louisiana,  14    314,  36  L.  ed.  716,   12  Sup.  Ct.  Rep. 
Wall.   10,  20   L.  ed.   514;    New  York    860;   Trebilcock  v.  Wilson,   12  Wall. 
L.  I.  Co.  V.  Hendren.  92  U.  S.  287,    692,  20  L.  ed.  460. 
23    L.    ed.    709;     United    States    v.        ^Crary  v.  Devlin.  154  U.  S.  619.  23 
Thompson,   93   U.   S.   589,   23   L.   ed.    L.  ed.  510,  14  Sup.  Ct.  Rep.  1190. 
982;    New  Orleans  v.    New    Orleans        sMontgomerv     v.      Hernandez,     12 
W.  Works,  142  U.  S.  84,  35  L.  ed.  943,    Wheat.   132,  6L.  ed.  575. 
12  Sup.  Ct.  Rep.  142;  Gillis  V.  Shirch-         apeople   v.    Central,   etc.    R.   R.    12 
field,  159  U.  S.  600,  40  L.  ed.  295,  16    Wall.  456,  20  L.  ed.  458.     But  see  as 
Sup.  Ct.  Rep.   131.  to  Virginia  compact  and  act  of  ad- 

?oMarrow  v.  Brinklev,    129   U.   S.    mission    of    Kentucky.     Wedding  v. 
181,  32  L.  ed.   654.  9  S\ip.   Ct.  Rep.    Meyler,  192  U.  S.  573,  48  L.  ed.  570, 
267;    Sayward   v.   Denny.    158  U.    S.    24  Sup.  Ct.  Rep.  322. 
186,  39  L.  ed.  941,  15  Sup.  Ct.  Rep.        uTelluride  P.  T.  Co.  v.  Rio  Grande 
777.  W.  Co.  175  U.  S.  645,  44  L.  ed.  305, 

iDelmas  v.  Insurance  Co.  14  Wall.    20  >:5up.  Ct.  Rep.  247. 
066,  20  L.  ed.  757;  Tarver  v.  Keach,        i2Mining    Co.    v.    Boggs,   3    Wall. 
15  Wall.  68,  21   L.  ed.  82.  310,  18  L.  ed.  245. 

224 


Procedure  J  ON   WRIT  OF  ERROR  TO   STATE   COURTS.  §  38   [m] 

derived  from  the  secretary  of  the  treasury  is  within  this  clause; is  or 
denying  the  authority  of  government  ofiicers  sued  as  trespassers  on  land.i* 
A  State  decision  against  a  right  to  sell  liquor  under  Federal  license,  is  re- 
viewable on  error;  15  so  is  a  State  decision  against  the  claim  of  a  United 
States  marshal  to  property  taken  from  his  possession. 1 6  Where  a  marshal 
is  sued  for  trespass  arising  from  improper  levy  of  process  and  justifies 
under  the  Federal  writ  of  attachment,  decision  against  that  defense  is 
reviewable  under  this  section.!"  Admission  of  land  entry  in  evidence, 
over  objection  that  it  was  cancelled  by  department,  does  not  question  de- 
partmental authority.is  But  a  decision  against  a  deed  of  Indian  lands 
approved  by  the  President,  questions  the  validity  of  a  Federal  authority,!  ^ 
so  also  a  decision  against  the  authority  of  the  Federal  district  court  to 
make  a  particular  order.2  0  The  act  of  1867,  which  first  introduced  the 
provision,  found  in  the  present  law,  as  to  a  right,  title  or  privilege  claimed 
under  an  "authority  exercised  under  the  United  States," i  broadened  the 
scope  of  the  statute  considerably  and  probably  made  cases  reviewable  on 
error  which  had  been  held  outside  the  scope  of  the  clause  as  to  denial  of 
the  validity  of  a  Federal  authority. 2  The  old  law  did  not  permit  review 
where  the  mere  existence  and  not  the  validity  of  a  Federal  authority  was 
denied. 3  There  is  a  plain  distinction  between  a  denial  of  a  Federal  author- 
ity and  of  a  right,  title,  privilege  or  immunity  claimed  under  it.4 

[m]  State  decisions  upholding  State  law  or  authority  questioned  upon 
Federal  grounds. 
It  is  well  settled  that,  on  error  to  a  State  court,  the  Supreme  Court 
will  not  adjudge  the  repugnancy  of  a  State  law  to  the  State  constitution. 6 
The  decision  of  the  State  court  as  to  the  validity  of  a  law  under  the  State 
constitution,  and  as  to  its  proper  meaning,  application  and  construction.' 

isNeilson   v.   Logan.    7   How.    775,  zoQ'Brien  v.  Weld,  92  U.  S.  85,  23 

12  L.  ed.  90S.  L.  ed.  675. 

^Stanley  v.   Schwalby.   147   U.  S.  Unfra,  note.m 

519,  37  L.  ed.  269,  13  Sup.  Ct.  Rep.  ^E.  g.  Mining  Co.  v.  Boggs,  3  Wall. 

418.  310,  18  L.  ed.  245. 

isMcGuire  v.  Cx)m.  3  Wall.  385,  18  „,PpJ^;"g^^  Z'    Hartupee,    6    Wall. 

L.  ed.  164.  -^-'  1^  L.  ed.  829. 

icni          i.         T>           M  -LT         Ana  ■! Baltimore,  etc.  R.  R.  v.  Hopkins, 

leClements  v.  Berry,  11  How.  408,  jg^  ^    g    ^j^.  923,  32  L.  ed.  913,  9 

.r^     '.        .,  ,u   X.    o  TXT  „    o.n    ,o  Sup.  Ct.  Rep.  503;  Abbotc  v.  Tacoma 

ivBuck  V.  Colbath,  3  Wall.  340    18  ^/^    Bank,  175  U.  S.  413,  44  L.  ed. 

L.  ed.  257;  Ethendge  v.  S-perry,  139  217,  20  Sup.  Ct.  Rep.  154.  155 
U.  S.  267,  35  L.  ed.  171,  11  Sup.  Ct.        eCalder  v.  Bull,  3  Bail.  392,  1   L. 

Rep.   565.     But   there   is   no   review  p^   g4g.  Pennsvlvania  College  Cases, 

wlipre  the  authoraty  of  a  marshal  to  13  Wall.   212    20  L.   ed    550-    Amey 

make  levy  is  not  questioned.     Day  v.  ^  Mavor,  24  How.  375,  16  L.  ed.  614; 

Oallup,  2  Wall.  106.  17  L.  ed.  855.  filler   v.  Cornwall  R.   R.   168  U.   S. 

isOook  Co.  V.  Calumet,  etc.  Co.  138  134,  42  L.  ed.  409,  18  Sup.  Ct.  Rep. 

U.  S.  652,  34  L.  ed.  1110,  11  Sup.  Ct.  34. 
Rep.  435.  'Commercial  Bank  v.  Buckingham, 

laPickering  v.   Lomax,    145   U.   S.  5  How.  .342,  12  L,  ed.  169;  Louis-villo. 

314,  36  L.  ed.  716.  12  Sup.  Ct.  Rep.  etc.  R.  R.  v.  Louisville,  166  U.  S.  715, 

860.  41  L.  ed.  1173,  17  Sup.  Ct.  Rep.  725. 
Fed.  Proc— 15.                               225 


LuiJ 


iiK    SUl'UKMK     COUUT. 


[Code  Fed. 


will  be  accepted  by  the  Federal  Supreme  Court. «  R.  S.  §  709  requires  that 
the  validity  of  the  law  be  challenged  upon  Federal  grounds  and  that  the 
State  decision  be  adverse  to  the  Federal  claim. 9  It  will  not  do  to  show 
merely  that  the  statute  may  be  so  construed  as  to  violate  the  constitution.!  o 
If  the  State  court  sustain  the  Federal  claim  and  declare  the  statute  void, 
no  writ  of  error  lies;ii  neither  will  it  lie  if  the  State  court  declines  to 
pass  upon  the  Federal  question  because  not  properly  raised  below,  i^  i5ut 
the  fact  that  the  State  court  was  correct  in  overruling  the  Federal 
claim  does  not  defeat  the  writ.i3  When  the  invalidity  is  alleged  and 
directly  involved  the  State  court  is  bound  to  pass  thereon  and  decision 
against  the  contention  is  reviewable.i*  The  writ  lies  in  criminal  cases 
challenging  a  State  statute,  as  well  as  in  civil.is 

Any  State  enactment  though  not  by  the  State  legislature,  enforced  as 
law  in  a  State,  is  a  law  within  R.  S.  §  709  giving  writ  of  error  where 
upheld  though  challenged  on  Federal  grounds.ifi  A  confederate  enactment 
adopted  and  enforced  is  such  a  law.i^  But  the  State  law  questioned  must 
be  an  enactment  of  one  of  the  States  of  the  Union.  Territorial  laws  are 
not  comprehended  by  the  act; is  nor  the  alleged  laws  of  a  body  not  organ- 
ized or  admitted  to  the  Union.is  An  objection  that  a  legislature  is  not 
organized  under  acts  of  Congress  and  the  Constitution,  is  not  an  objection 
to  the  validity  of  a  State  law  on  Federal  grounds. 20 

A  decision  upholding  a  State  election  law  challenged  on  Federal  grounds 
is  reviewable  on  error;  1  so  also  is  a  decision  upholding  a  railroad  law  com- 
pelling trains  to  stop  at  coiuity  seats,  when  challenged  as  interference 
with  the  transmission  of  mails; 2  and  a  decision  denying  a  contention  that 


sNesmitn  v.  Sheldon,  7  How.  818, 

12  L.  ed.  925;  Gill  v.  Oliver,  11  How. 
546,  13  L.  ed.  799;  Marshall  v.  Ladd, 
1.31  U.  S.  xc,  19  L.  ed.  153;  Glenn 
V.  Garth,  147  U.  S.  369.  37  L.  ed.  203, 

13  Sup.  Ct.  Rep.  350;  Powell  v. 
Brunswick  Co.  1.50  U.  S  442,  37  L. 
ed.  1134,  14  Sup.  Ct.  Rep.  166; 
Bacon  v.  Texas,  163  U.  S.  225.  41  L. 
ed.  132,  16  Sup.  Ct.  Rep.  1023.  See 
ante,  §  12.[h] 

sWeston  v.  Citv  Council.  2  Pet. 
464,  7  L.  ed.  481 ;  "McKinnev  v.  Car- 
roll, 12  Pet.  70,  9  L.  cd.  1002;  Mc- 
Pherson  v.  Blacker,  146  U.  S.  23,  36 
L.  ed.  869,  13  Sup.  Ct.  Rep.  3. 

10 Castillo  v.  McConnieo.  168  V.  S. 
680,  42  L.  ed.  622,  18  Sup.  Ct.  Rep. 
229. 

11  Walker  v.  Taylor,  5  How.  68,  12 
L.  ed.  52;  Boyd  v.  Alabama,  94  U. 
S.  649,  24  L.  ea.  302. 

i2Erie  R.  R.  v.  Purdy,  185  U.  S. 
154,  46  L.  ed.  847,  22  Sup.  Ct.  Rep. 
605. 


13  Chicago,  etc.  Ins.  Co.  v.  Needles, 
113  U.  S.  574,  28  L.  ed.  1084,  5  Sup. 
Ct.  Rep.  681. 

i4Railroad  v.  Maryland,  21  Wall. 
469,  22  L.  ed.  678. 

i5\vard  V.  Maryland,  12  Wall.  423, 
20  L.  ed.  449. 

16 Williams  v.  Bruffv.  96  U.  S. 
183,  24  L.  ed.  716. 

17  Ford  v.  Surget,  97  U.  S.  603,  24 
L.  ed.  1018. 

isMiners  Bank  of  Dubuque  v. 
Iowa,  12  How.  7,  13  L.  ed.  867. 
ftiate  decision  upholding  territorial 
law  is  not  covered  by  R.  S.  §  709; 
Mason  v.  Messenger,  10  Wall.  510, 
19  L.   ed.   1028. 

i9Scott  V.  Jones,  5  How.  378,  12 
L.  ed.  181. 

20  Scott  V.  Jones,  5  How.  376,  12  L. 
ed.  181. 

iMcPherson  v.  Blacker,  146  U.  S. 
23,  36  L.  ed.  869,  13  Sup.  Ct.  Rep. 
3. 

2lllinois   C.  R.  R.  v.  Illinois.   163 


226 


■ 


Procedure]  ON   WRIT   OF    ERROR   TO   STATE    COURTS.  §  38   [mm] 

a  State  legislature  has  no  power  to  regulate  the  duties  of  a  national  bank 
cashier.3 

The  Fourteenth  Amendment  has  been  the  basis  of  a  Federal  claim  in 
many  cases  challenging  a  State  law  a-s  invalid  thereunder,*  as  well  as  in 
cases  alleging  that  some  proceeding  or  action  of  a  State  or  its  officers 
other  than  a  statute,  has  denied  rights  arising  therefrom.s  A  State  decision 
that  a  statute  providing  ex  parte  court  proceedings  in  organizing  irrigation 
districts  is  not  a  deprivation  of  property  under  that  Amendment  is  re- 
viewable. 6 

There  seem  to  be  no  cases  in  which  review  on  error  has  been  sought 
respecting  a  State  decision  sustaining  an  authority  exercised  imder  a 
State,  questioned  upon  Federal  grounds.  It  has  been  held  that  the  author- 
itj^  of  a  State  court  to  determine  its  cases  is  not  the  authority  here  re- 
ferred  to.  7 

[mm] — statutes  alleged  to  impair  obligation  of  contracts. 

In  many  cases  claim  uas  been  made  in  a  State  court  that  a  statute  violat- 
ed some  prior  contract  right  of  the  party,  and  the  writ  will  lie  if  the 
claim  is  denied.*  although  the  State  court  justifies  vmder  some  general 
rule  of  law, 9  or  declares  there  never  was  any  valid  contract,  or  any  con- 
tract at  all, 10  or  that  the  statute  in  question  has  not  the  effect  of 
violating  it.n  The  impairment  must  be  by  some  law,  not  merely  by  a 
State  decision;  12  and  mere  refusal  of  State  to  perform  its  contract  or  dec- 

U.  S.  153,  41  L.  ed.  107,  16  Sup.  Ct.  hamton  Bridge,  3  Wall.  72,  18  L.  ed. 

Rep.  1096.  137 ;  Home  Ins.  Co.  v.  City  Council, 

sWaite  v.   Dowley,   94   U.   S.   532,  93  U.  S.  121,  23  L.  ed.  825;  Williams 

24  L.  ed.  181.  v.    Bruffy,    96    U.    S.    183.    24    L.    ed. 

■»Yesler  v.   W\ishington  Harbor  L.  716;  Illinois  C.  R.  A.  v.  Chicago,  176 

Comrs.  146  U.  S.  656,  36  L.  ed.  1119,  U.  S.  656,  44  L.  ed.  626,  20  Sup.  Ct. 

13  Sup.  Ct.  Rep.  190 ;  Covington,  etc.  Rep.     509;    Yazoo,    etc.     R.     R.     v. 

Co.  V.  Sandford,  164  U.  S.  580,  41  L.  Thomas,    132   U.    S.    184,    33    L.    ed. 

ed.  560,  17  Sup.  Ct.  Rep.  198;  Wheel-  302,   10   Sup.   Ct.  Rep.  68;   New  Or- 

er  V.  New  York,  etc.  R.  R.  178  U.  S.  leans  v.  Benjamin,  153  U.  S.  424.  38 

323,  44  L.  ed.  1086,  20  Sup.  Ct.  Rep.  L.   ed.   764,  14   Sup.   Ct.  Rep.   905. 

949;    Spencer   v.    Merchant,    125    U.  sGiven  v.   Wright,   117   U.   S.  656, 

S.  358,  31  L.  ed.  763,  8  Sup.  Ct.  Rep.  29  L.  ed.  1021.  e'^Sup.  Ct.  Rep.  907; 

921;    Walston    v.    Nevin.    128    U.    S.  lOColumbia    Water    Power   Co.   v. 

583,  32  L.  ed.  544,  9  Sup.   Ct.  Rep.  Street    Ry.     172,    U.     S.   489,   43   L. 

192;   Tregla   v.   Undesto   Irrig.   Dist.  ed.     521,     19     Sup.     Ct.      Rep.      247: 

164  U.  S.  185,  41  L.  ed.  395,  17  Sup.  Wilson     v.     Standefer,     184     U.     S. 

Ct.  Rep.  52.  411,  46  L.  ed.  612.  22  Sup.  Ct.  Rap. 

sinfra,  note.[n]  384;    Walsh  v.  Columbus,  etc.   R.  R. 

«Trogea  v.  Undesto  Irrig.  Dist.  164  176  U.  S.  476.  44  L.  ed.  452.  20  Sup. 

U.  S.  186,  41  L.  ed.  395,  17  Sup.  Ct.  Ct.  Rep.  393;  University  v.  People.  99 

Rep.  52.  U.  S.  321,  25  L.  ed.  387:  [Mobile,  etc. 

'Betihel  v.  Demaret,   10  Wall.  540,  R.   R.    v.    Tennessee,    153   U.    S.    -U15, 

19  L.  ed.  1007.  38  L.  ed.  793,   14  Sup.  Ct.  Rep.  \)6S. 

^Richmond,  etc.  R.  R.  v.  Louisiana  But   see  Bacon   v.   Texas,   163   U.   S. 

R.  R.  13  How.  80,  14  L.  ed.  55;  Piqua  219,  41  L.  ed.  1.32.  16  Sup.  Ct.  1023. 

Bank  v.  Knoop.   16  How.  391,   14  L.  uSee  ante,  S  12.[i] 

ed.  977:   Delmas  v.  Insurance  Co.  14  isRailroad    Co.    v.    Rock,    4    Wall. 

Wall.  667,  20  L.  ed.  757;   The  Bing-  181,  18  L.  ed.  381;  Winona,  etc.  R.  R. 

227 


§  38   [n]  THE    SUPREME    COURT.  [Code  Fed. 

laration  of  intent  to  violate  it,  without  any  actual  impairment  thereof,  is 
not  reviewable.!  3  Where  a  State  decision  denies  the  existence  of  any  con- 
tract obligation  upon  grounds  independent  of  the  law  claimed  to  impair  the 
same,  there  is  no  right  to  writ  of  error.i*  A  State  decision  at  variance 
with  construction  given  to  law  by  earlier  case  is  not  therefore  reviewa- 
ble. 15  A  decision  admitting  the  validity  of  charter  tax  exemption,  but 
declaring  certain  property  not  within  the  intent  of  the  law,  is  not  re- 
viewable.! 6  And  where  the  State  decision  holds  no  contract  ever  existed 
because  of  failure  to  comply  with  original  statute,  and  gives  judgment 
without  reference  to  the  alleged  impairing  contract,  error  will  not  lie.i'^ 
It  must  appear  that  the  State  court  gave  effect  to  an  impairing  statute; i* 
and  has  not  merely  misconstrued  an  admittedly  valid  statute. 1 9  But 
a  decision  may  be  actvially  in  support  of  an  impairing  statute  and  there- 
fore reviewable  without  referring  to  it. 20  ^Vhere  there  is  no  impairing 
statute  subsequent  to  the  time  the  alleged  contract  arose,  there  can  be 
no  right  to  writ  of  error.  1  A  decision  against  the  claim  that  a  constitu- 
tional amendment,2  or  a  grant  of  a  franchise^  impaired  a  contract  is 
deemed  one  upholding  a  statute  challenged  on  Federal  grounds. 

[n]  State  decision  against  a  title,  right,  privilege  or  immunity  claimed 
under  Federal  Constitution,  treaties  or  laws — in  general. 
The  act  of  1867  introduced  a  change  in  this  clause  by  substituting  the 
word  "immunity"  for  "exemption."5  In  some  cases  both  parties  to  a  suit 
may  claim  title  under  Federal  law,  and  in  others  what  one  claims  as  a 
right  under  Federal  law  may  in  the  converse  be  asserted  by  the 
other  as  an  immunity  under  that  same  law.    Hence  it  follows   that  there 

V.   Plainview,    143  U.   S.   39.'?,   30   L.  isKreiger  v.  Shelbv  R.  R.   125  U. 

ed.  191.  12  Sup.  Ct.  Rep.  530;  Knox  S.  44,  31  L.  ed.  675,  8  Sup.  Ct.  Hep. 

v.  Exchange  Bank,   12  Wall.  3S3,  20  752;   Bacon  v.  Texas,  163   'J.  S.  219, 

L.  ed.  414;  Lehigh  W.  Co.  y.  Easton,  41  L.  ed.  132,  10  Sup.  Ct.  Rep.  1023. 

121  U.  S.  392,  30  L.  ed.  1059,  7  Sup.  isCentral  L.  Co.  v.  Laidley.  159  U. 

Ct.   Rep.   916;    St.  Paul,   etc.  Ry.  v.  S.  109,  40  L.  ed.  91,  16  Sup.  Ct.  Rep. 

Todd   Co.    142   U.    S.    287,   35   L.   ed.  80. 

1014,  12  Sup.  Ct.  Rep.  281.  soMcCullough  v.  Virginia,  172  U. 

isBrown  v.  Colorado,  106  U.  S.  98,  S.  116,  43  L.  ed.  382,  19  Sup.  Ct.  Rep. 

27  L.  ed.  132,  1   Sup.  Ct.  Rep.   175;  134,   Plouston,   etc.   R.    R.   v.    Texas, 

St.  Paul  Gas  Co.  v.  St.  Paul.  181  U.  177  U.  S.  77,  44  L.  ed.  680,  20  Sup. 

S.  151,  45  L.  ed.  793,  21  Sup.  Ct.  Rep.  Ct.  Rep.  545. 

575.  iTurner  v.   Wilkes   Co.   173  U.   S. 

i4New  Orleans  Works  v.  tiDuisiana,  463,  43  L.  ed.  768,  19  Sup.  Ct.  Rep. 

S.  Co.  125  U.  S.  38,  31  L.  ed.  607,  8  464. 

Sup.  Ct.  Rep.  741.  2Wil]ianis  v.  Louisiana,  103  U.  S. 

iBHopkins  v.  McLure,  133  U.  S.  380,  639,  26  L.  ed.  595. 

33  L.  ed.  660,  10  Sup.  Ct.  Rep.  407;  sWright  v.   Nagle,  101  U.   S.  794, 

Bacon   v.    Texas,    163    U.    S.    220,    40  25  L.  od.  921. 

L.  ed.  132,  16  Sup.  Ct.  Rep.  1023.  5 See  Murdock  v.  Memphis,  20  Wall. 

i6St.    Paul,    etc.    Ry.   v.   Torld    Co.  590.  22  L.  ed.  437,  where  thf  nets  of 

142  U.  S.  287,  35  L.  ed.  1014,  12  Sup.  1789   and    1867   are  compared  as   to 

Ct.  Rep.  281.  this  section. 

iTBacon   v.  Texas,   163  U.    S.   219, 
41  L.  ed.  132,  16  Sup.  Ct.  Rep.  1023. 

228 


Procedure] 


ON    WRIT    OF    ERROR    TO    STATE    COURTS. 


§   38   [u] 


are  many  case^  under  this  clause  of  R.  S.  §  709,  which  are  reviewable  in  the 
Supreme  Ckjurt  no  matter  which  way  the  State  court  decides.  6  In  cither 
event  it  decides  against  a  Federal  right  or  immunity,  and  the  Supreme 
Court  is  enabled  to  insure  a  uniform  construction  of  Federal  laws. 7  It  was 
early  decided  that  a  State  case  where  both  parties  claim  title  under  an  act 
of  Congress  is  reviewable  in  the  Supreme  Court,  s  The  same  is  true  where 
both  parties  claim  a  right  under  an  act  of  Congress. s  Allegation  that  State 
decision  of  an  election  contest  violates  guaranty  of  republican  government, 
gives  no  right  to  writ  of  error  where  all  departments  of  State  government 
are  peacefully  operating  according  to  fundamental  law.io  A  State  decision 
that  an  assessor  is  not  personally  liable  for  damages  for  erroneous  assess- 
ment of  national  bank  stock  raises  no  Federal  question. n  It  is  held  also 
that  state  injunction  against  suit  in  a  Federal  court  involves  no  Federal 
()uestion.i2  Error  will  not  lie  to  State  disbarment  decision  based  upon 
vituperative  language  used  in  a  Federal  court  pleading.is  Where  the  con- 
tention is  that  the  Federal  Constitution,  or  a  Federal  treaty,  or  law,  is 
violated  otherwise  than  by  a  State  law,  as,  for  instance  by  a  contract,i* 
or  court  proceeding,!  5  or  by  some  threatened  State  or  municipal  acts,i6 
the  right  to  review  depends  upon  this  clause  and  not  upon  the  clause  re- 
specting State  decisions  upholding  State  laws. 1 7  Where  a  State  court  de- 
nies a  Federal  right  by  excluding  Africans  from  a  jury,  writ  of  error  will 
lie;  18  as  also  where  a  proceeding  for  street  assessment  is  claimed  to  be 
without  due  process; 1 9  or  a  State  tax  on  telegraph  messages  is  claimed  to 


6See  McCormick  v.  Market  Nat. 
Bank,  165  U.  S.  538,  40  L.  ed.  817, 
17  Sup.  Ct.  Rep.  433.  So  a  State 
decision  sustaining  a  Federal  author- 
ity may  reject  a  Federal  title;  Ma- 
guire  V.  Tyler,  1  Black,  203,  17  L.  ed. 
137.  A  State  decision  that  a  carrier 
has  the  right  to  sliift  the  burden 
of  the  war  tax  to  a  customer  denies 
the  right  of  the  ciistomer  under  the 
law  t-o  have  the  carrier  pav.  Amer. 
Exp.  Co.  V.  Mavnard.  177  U.  S.  407, 
44  L.  ed.  824,  20  Sup.  Ct.  Rep.  005. 

^Matthews  v.  Zane.  4  Cranch.  383, 
2  L.  ed.  654. 

sMatthews  v.  Zane.  4  Cranch,  383, 
2  L.  ed.  654;  Ross  v.  Barland,  1  Pet. 
664,  7  L.  ed.  302;  .Mobile  v.  Eslava, 
16  Pet.  242,  10  L.  ed.  943;  Silver  v. 
Ladd.  6  Wall.  440.  18  L.  ed.  828; 
Wallace  v.  Parker,  6  Pet.  687,  8  L. 
ed.  543. 

9Buel  V.  Van  Ness.  8  Wheat.  324, 
5  L.  ed.  624. 

lOTaylor  v.  Beckham,  178  U.  S. 
580,  44  L.  ed.  1187,  20  Sup.  Ct.  Rep. 
890,  1009. 


11  Williams  v.  Weaver.  100  V.  S. 
548.  25  L.  ed.  708. 

i2ln  re  Craft,  124  U.  S.  374,  31  L. 
0(1.  449,  8  Sup.  Ct.  Rep.  509. 

i3ln  re  Green,  141  U.  S.  326,  35 
L.  ed.  765,  12  Sup.  Ct.  Rep.  11. 

i4Railroad  v.  Richmond.  15  Wall. 
7.  21  L.  ed.  118. 

isHanford  v.  Da%nes,  163  U.  S.  279, 
41  L.  ed.  157,  16  Sup.  Ct.  Rep.  1051 : 
Backus  V.  Fort  Street,  etc.  Co.  169 
U.  S.  575,  42  L.  ed.  853,  18  Sup.  Ct. 
Rep.  445;  Bohanan  v.  Nebraska,  118 
U.  S.  231,  30  L.  ed.  71,  6  Sup.  Ct. 
Hep.  1049. 

16 Walla  Walla  v.  Water  Co.  172  U. 
S.  11,  43  L.  ed.  341,  19  Sup.  Ct.  Rep. 
77;  Taylor  v.  Beckham,  178  U.  S.  575, 
44  L.  ed.  1199,  20  Sup.  Ct.  Rep.  890, 
1009. 

1  "Supra,  note.[ni] 

isNeal  V.  Delaware.  103  U.  S.  393. 
20  L.  ed.  567. 

isBellingliam  Bav,  etc.  Co.  v.  New 
Whatcom,  l/:i  U.  S."317,  43  L.  ed.  460, 
19  Sup.  Ct.  Rep.  873. 


229 


§   38   [nn]  THE  SUPREME   COURT.  [Code   Fed. 

violate  a  Federal  law. 20  Writ  of  error  has  also  been  held  allowable  where 
the  decision  was  adverse  to  contentions  based  upon  the  Federal  commerce 
power;  1  or  upon  the  war  power  and  its  exercise;  2  or  adverse  to  a  right 
of  removal  claimed;  3  or  adverse  to  a  claim  of  Federal  citizenship.^ 

[nn]     Decisions  against  Federal  light  privilege  or  immunity,  in  general. 

A  State  decision  adverse  to  a  right  to  sell  liquor  asserted  under  Federal 
revenue  license  is  against  a  Federal  right  and  reviewable  on  error; 6  so 
also  is  a  decision  against  an  immunity  conferred  by  act  of  Congress;''  and 
adverse  to  an  exemption  from  liability  claimed  under  the  Federal  Constitu- 
tion ;S  and  against  a  right  derived  from  act  of  Congress  and  the  decision  of 
the  land  department; 9  and  adverse  to  a  Federal  receiver's  contention  that 
he  is  privileged  from  suit  in  the  State  court;  10  and  adverse  to  the  conten- 
tion that  United  States  obligations  are  not  taxable.n  Rights  and  immu- 
nities claimed  under  revenue  laws  and  denied  by  a  State  decsion  create  a 
right  to  writ  of  error.  12  A  State  decision  against  a  right  to  damages  for 
libelous  matter  in  a  Federal  court  pleading,  is  reviewable  because  against 
a  Federal  right,  where  the  decision  is  claimed  to  be  a  deprivation  of  plain- 
tiff's property  right  to  his  reputation. 1 3  A  State  decision  that  a  munici- 
pality authorized  to  borrow  "money"  exceeded  its  powers  by  promising  to 
pay  "in  gold  coin  of  the  United  States,"  has  been  held  to  deny  a  right 
claimed  undt"  the  Federal  Constitution  and  laws.i*  A  decision  denying 
riparian  rights  under  a  Federal  grant  is  reviewable  on  error.is     A  State 


20 Western   U.  T.   Co.   v.  Alabama,  to  be  a   citizen   of   a   certain   State. 

132  U.  S.  473,  33  L.  ed.  409.  10  Sup.  Hunt  v.  Hunt,  131  U.  S.  CLXVI,  24 

Ct.  Rep.  161.  L.  ed.  1109. 

iHennington  v.  Georgia,  163  U.  S.        cMcGuire  v.  Com.  3  Wall.  385,  U 

302.  41  L.  ed.   106,  16  Sup.  Ct.  Rep.  L.  ed.  164. 

1086:    Edwards   v.   Elliott.   21   Wall.        ^Stewart  v.  Kahn,  llWall.  502,  20 

550.  22  L.  ed.  487.  L.  ed.  176. 

2 Mathews  v.  MeStea,  20  Wall.  649,        sDaniels    v.    Tearney,    102    U.    S. 

22  L.  ed.  448;  Bond  v.  Moore,  93  U.  418,  26  L.  ed.  187. 
S.  594,  23  L.  ed.  983.  sCunningliam   v.    Ashley,  14   How. 

sKanouse  v.   IMartin,   14  How.  24,  389,  14  L.  ed.  462. 
14  L.  ed.  310;  Oaklev  v.  Goodnow,  118        lOMcNulta  v.  Loekridge.  141  U.  S. 

U.  S.  44,  30  L.  ed.  61,  6  Sup.  Ct.  Rep.  331.  35  L.  ed.  796,  12  Sup.  Ct.  Rep.  11. 
944;    Missouri   P.   Ry.  v.   Fitzgerald,         nBanKS  v.  Mayor,  7  Wall.  22,   19 

160  U.  S.  582,  40  L.  ed.  536,  16  Sup.  L.  ed.  57. 

Ct.   Rep.   389;   Missouri,   etc.   Ry.   v.        i2The    Collector    v.    Hubbard,    12 

Commissioners,    183   U.    S.   58.   46   L.  Wall.  9.  20  L.  ed.  272;  Hall  v.  Jordan, 

ed.    78,   22    Sup.    Ct.    Rep.    18.      But  15  Wall.  395,  21  L.  ed.  72;    Ruckman 

error  will  not  lie  where  adverse  rul-  v.    Bergholz,    131    U.    S.    CXLIV.,   23 

ing    not    excepted    to;    Fashracht    v.  L.  ed.   1008. 

Frank,   23   Wall.   419,   9S   L.   ed.   81;         isAbbott  v.  Tacoma  Nat.  Bank.  175 

or  where  no  appeal  to  the  State  su-  U.  S.  413,  44  L.  ed.  217,  20  Sup.  Ct. 

preme  court  was  prosecuted.     Tripp  Rep.    153. 

V.   Santa  Rosa   St.   R.   R.    144   U.   S.         1 4 Woodruff  v.  Mississippi.   162  U. 

130.  36  L.  ed.  372,  12  Sup.  Ct.  Rep.  S.  299,  40  L.  ed.  973,  16  Sup.  Ct.  Rep. 

655.  820. 

4Boyd  V.  Nebraska.  143  U.  S.  161,         is  French-Glenn    Co.    v.    Springer, 

36  L.  ed.   103,  12  Sup.  Ct.  Rep.  375.  185  U.  S.  53,  46  L.  ed.  800,  22  Sup. 

But  not  where  State  decides  a  party  Ct.  Rep.  563. 

230 


Procedure]  ON  WRIT  OF   ERROR  TO   STATE   COURTS.  §  3S  [o] 

decision  is  reviewable  if  adverse  to  the  sufficiency  of  Federal  confiscation 
proceedings ;  1 'i'  and  against  a  water  right  claimed  under  act  of  Congress 
and  contract  with  government ;  i «  and  against  a  right  of  action  or  defense 
based  upon  an  act  of  Congress ;i9  or  a  claim  depending  upon  an  act  of  Con- 
gress; 20  or  a  mortgage  priority  by  recording  lien  against  vessel; 21  or  a 
right  based  on  contract  with  the  United  States. 2  2  A  State  decision  con- 
forming to  a  compromise  of  the  parties,  but  contrary  to  the  Supreme 
Court's  decision  on  error  will  not  be  deemed  a  denial  of  a  Federal  right. 2  3 
Discretionary  refusal  of  liquor  license  violates  no  Federal  right. 2  4  Refusal 
of  State  court  to  acquiesce  in  circuit  court  decision,  is  no  ground  for  er- 
ror. 2  5  One  alleging  himself  the  owner  of  land  for  thirty  years  does  not 
set  up  any  Federal  title,  right,  privilege  or  immunity.2  6  A  State  court 
deciding  against  a  corporation  created  under  Federal  laws  does  not  nec- 
essarily decide  against  a  Federal  right  or  immunity.i  Construction  of  an 
agreement  to  procure  a  railroad  right  of  way  over  public  lands  does  not 
involve  a  decision  against  a  Federal  right. 2 

[0]     Decisions  denying  full  faith  and  credit. 

In  a  number  of  cases  the  Federal  right  claimed  and  denied  in  the  State 
court  has  been  based  on  the  clause  requiring  State  courts  to  accord  full 
faith  and  credit  to  judgments  of  sister  States.*  Error  will  not  lie  where 
the  State  judgment  does  not  deny  full  faith  and  credit; 5  or  where  the 
judgment  set  up  is  that  of  a  foreign  country; 6  or  where  the  decision  merely 

iTPhoenix  Bank  v.  Risley,   111  U.  146  U.  S.  054.  36  L.  ed.  1119,  13  Sup. 

S.  126,  28  L.  ed.  374.  4  Sup.  Ct.  Rep.  Ct.   Rep.    190. 
322.  iTexas,   etc.    Ry.   v.   Johnson,    151 

isGreen  Bav,  etc.  Co.  v.  Potter  P.  U.   S.  98,  38  L.  ed.  81,   14  Sup.   Ct. 

Co.   172  U.  S.'  66,  43  L.   ed.   304,   19  Rep.  250. 
Sup.  Ct.  Rep.  97.  2]\li.ssouri  Pac.  R.  R.  v.  Fitzgerald, 

isAnderson  v.   Carkins.   135   U.  S.  160  U.  S.  577.  40  L.  ed.  536,  16  Sup. 

486,  34  L.  ed.  272,  10  Sup.  Ct.  Rep.  Ct.  Rep.  389. 
905.  4 Green   v.    Van    Buskirk,    5   Wall. 

20Talbot  V.   First  Nat.  Bank,   185  310,    18    L.    ed.    599;     Carpenter    v. 

U.  S.  180,  46  L.  ed.  857,  22  Sup.   Ct.  Strange,  141  U.  S.  103,  35  L.  ed.  640, 

Rep.  612.  11    Sup.   Ct.   Rep.    960;    Winona,  etc. 

21  Walton  V.   Cotton.  19  How.  356,  R.   R.   v.   Plainview,   143   U.   S.   390, 

15  L.  ed.  658;  Aldrich  v.  Aetna  Ins.  36  L.  ed.  191,  12  Sup.  Ct.  Rep.  530; 

Co.  8  Wall.  495,  19  L.  ed.  473.  Huntington  v.  Attrill,  146  U.  S.  606, 

22Green  Bav  Co.  v.  Patten  P.  Co.  36  L.  ed.  1123,  13  Sup.  Ct.  Rep.  224; 

172  U.  S.  66, '43  L.  ed.  364,  19  Sup.  Hancock  Xat.  Bank  v.  Farnum.   176 

Ct.  Rep.  97.  U.  S.  642,  44  L.  ed.  620,  20  Sup.  Ct. 

23Mills  Co.  v.   Chicago,  etc.  R.  R.  Rep.  506;  Jacobs  v.  :\larks,  182  U.  S. 

Co.  107  U.   S.  567,  27   L.   ed.  578,  2  587,  45  L.  ed.  1244.  21  Sup.  Ct.  Rep. 

Sup.  Ct.  Rep.  654.  865:  Hollander  v.  Feckhein:er,  162  U. 

24Crowley  v.   Christensen,    137    U.  S.  325,  40  L.  ed.  985.  10  Sup.  Ct.  Rep. 

S.  94,  34  L.  ed.  620,  11  Sup.  Ct.  Rep.  795;  Crapo  v.  Kelly,  10  Wall.  021,  21 

13.  L.  ed.  430. 

25Winona,  etc.  R.  R.  v.  Plainview,        sLynde   v.   Lvnde,    181   U.   S.    186, 

143  U.  S.  390,  36  L.  ed.  191,  12  Sup.  45  K  ed.  814,  21   Sup.  Ct.  Rep.  555. 
Ct.  Rep.  530.  6Roth  v.  Ehman,  107  U.  S.  319,  27 

26Yesler  v.  Washington  H.  L.  Com.  L.  ed.  499,  2  Sup.  Ct.  Rep.  312. 

231 


§  38   [p] 


THE   SUPREME    COURT. 


[Code  Fed. 


construes  and  does  not  denyJ  No  Federal  law  or  constitutional  right  is 
aliected  by  a  State  court's  decision  as  to  the  conclusiveness  of  a  prior  judg- 
ment in  the  same  State. «  Where  a  State  court  fails  to  give  effect  to  a 
valid  Federal  judgment,  error  will  lie.9  But  there  is  no  right  of  review 
where  the  State  decision  is  in  favor  of  the  circuit  court's  jurisdiction  in 
another  case;lo  or  where  the  Federal  judgment  was  not  between  the 
same  parties.il  A  decision  that  a  matter  was  first  res  adjudicata  in  the 
State  court  does  not  deny  effect  to  a  Federal  decree.  12 

[p] — decision  against  Federal  titles. 

In  many  cases  writ  of  error  has  been  allowed  to  review  State  decisions 
adverse  to  land  titles  claimed  under  United  States  patent;i*  or  adverse 
to  entry  of  land  allowed  by  land  department; is  or  against  the  title  of 
the  United  States  as  proprietor; I6  or  against  title  conferred  by  Federal 
government;  17  or  adverse  to  other  rights  claimed  under  Federal  land 
laws.is  But  State  decisions  respecting  titles  derived  from  Mexican  grants, 
where  no  Federal  law  is  involved;  are  not  reviewable.! 9  A  State  decision 
adverse  to  title  to  personalty  derived   from  Federal  execution  sale; 20   or 


TBa.n'holzor  v.  New  York  L.  I.  Co. 
178  U.  S.  40G,  44  L.  ed.  1126,  20  Sup. 
Ct.  Rep.  972. 

sSan  Francisco  v.  It^J'^U.  133  U.  S. 
6fi,  33  L.  ed.  570,  10  Sup.  Ct.  Rej. 
241 ;  California  v.  Holladay,  159  U.  S. 
417,  40  L.  ed.  202,  16  Sup.  Ct.  Rep. 
53 ;  Phenix  F.  Ins.  Co.  v.  Tennessee. 
161  U.  S.  184,  40  L.  ed.  660,  16  Sup. 
Ct.  Rep.  471 ;  Newport  L.  Co.  v.  New- 
port, 151  U.  S.  539,  38  L.  ed.  259,  14 
Sup.  Ct.  Rep.  429. 

9Embry  v.  Palmer,  107  U.  S.  9, 
27  L.  ed.  346,  2  Sup.  Ct.  Rep.  25; 
Crescent  L.  S.  Co.  v.  Butchers  Union, 
etc.  Co.  120  U.  S.  146,  31  L.  ed.  614, 
7  Sup.  Ct.  Rep.  472;  Central  Nat. 
Bank  v.  Stevens,  169  U.  S.  460.  42 
L.  ed.  807,  18  Sup.  Ct.  Rep.  403;  Pen- 
dleton V.  Russell,  144  U.  S.  644, 
36  L.  ed.  574,  12  Sup.  Ct.  Rep.  743; 
Dowell  V.  Applegate,  152  U.  S.  346, 
38  L.  ed.  463,  14  Sup.  Ct.  Eep.  611; 
Werlein  v.  New  Oneans,  177  U.  S. 
396,  44  L.  ed.  817,  20  Sup.  Ct.  Rep. 
682. 

10 Abbott  V.  Tacoma  Bank  of  Com- 
merce, 175  U.  S.  412,  44  L.  ed.  217, 
20  Sup.  Ct.  Rep.  153. 

iiGiles  V.  _bittle.  134  U.  S.  649,  33 
L.  ed.  1062,  10  Sup.  Ct.  Rep.  623. 

i2Northern  Pac.  R.  R.  v.  Ellis,  144 
U.  S.  465,  36  L.  ed.  504,  12  Sup.  Ct. 
Rep.  724. 

14  Bell  V.  Hearne,  19  How.  263,   15 


L.  ed.  614;  Cousin  v.  Labatut,  19 
How.  207,  15  L.  ed.  601;  Reicliart 
V.  Felps,  6  Wall.  165,  18  L.  ed.  849; 
Johnson  v.  Trosley,  13  Wall.  80,  20 
L.  ed.  485;  Baldwin  v.  Stark,  107 
U.  S.  464,  27  L.  ed.  526,  2  Sup.  Ct. 
Rep.  473;  Doolan  v.  Carr,  125  U.  S. 
620,  31  L.  ed.  844,  8  Sup.  Ct.  Rep. 
1228;  Shively  v.  Bowlby,  152  U.  S. 
9;  38  L.  ed.  331,  14  Sup.  Ct.  Rep. 
548. 

isLytle  V.  Arkansas,  22  How.  203, 
16  L.  ed.  306. 

lestanley  v.  Schwalby,  162  U.  S. 
278,  40  L.  ed.  960,  16  Sup.  Ct.  Rep. 
754. 

i"Berthold  v.  McDonald,  22  How. 
339,  16  L.  ed.  318. 

isMoore  v.  Robbins,  96  U.  S.  531, 
24  L.  ed.  848;  Hussman  v.  Durham, 
105  U.  S.  147,  41  L.  ed.  664,  17  Sup. 
Ct.  Rep.  253;  Minnesota  v.  Bachilder, 
1  Wall.  116,  17  L.  ed.  551;  Northern 
Pac.  R.  R.  V.  Colburn,  164  U.  S.  386, 
41  L.  ed.  479,  17  Sup.  Ct.  Rep.  98. 

isKennedy  v.  Hunt,  7  How.  593,  12 
L.  ed.  829 ;  San  Francisco  v.  Scott, 
111  U.  S.  769.  28  L.  ed.  593,  4  Sup. 
Ct.  Rep.  6S8;  Phillips  v.  Mound  uity 
Assn.  124  U.  S.  611,  31  L.  ed.  588, 
8  Sup.  Ct.  Rep.  657;  California  Pow- 
der Wks.  v.  Davis,  151  J.  S.  395,  38 
L.  ed.  206,  14  Sup.  Ct.  Rep.  350. 

2  0Gregorv  v.  McVeigh,  23  Wall. 
307,  23  L.  ed.  156. 


232 


il 


Procedure]  ON   WRIT  OF   ERROR  TO   STATE    COURTS.  §   -.iS   Ipl 

depending  upon  act  of  Congress,2i  is  reviewable.  It  is  immaterial  whether 
a  State  denies  validity  to  a  Federal  title  upon  a  question  of  fact  or  one 
of  law.2  2  If  a  title  set  up  under  Federal  laws  is  rejected,  the  writ  will 
lie,  even  though  the  decision  rejecting  the  title  does  so  by  sustaining  an 
authority  exercised  by  the  surveyor  general.2  3  A  State  decision  deny- 
ing riparian  rights  under  a  Federal  grant  gives  right  to  wTit  of  error.2  4 

A  State  decision  upon  land  titles  involving  only  the  State  land  laws  is  not 
reviewable.!  Neither  is  a  decision  in  an  action  to  correct  a  name  in  a  Fed- 
eral confirmation  of  title. 2  A  State  decision  against  a  particular  survey 
is  not  against  a  Federal  grant  where  the  act  of  Congress  respecting  the 
grants  recognized  their  validity  but  not  the  validity  of  any  particular 
survey.s  A  decision  refusing  prohibition  against  State  harbor  commis- 
sioners improperly  locating  harbor  lines,  is  not  against  any  Federal  right 
or  title  or  littoral  owners. <  The  crop  raised  on  land  by  pre-emptors'  labor 
and  expense  does  not  affect  a  que.stion  of  title.  5  Decision  that  the  statute 
of  limitations  runs  from  accrual  of  right  to  patent  and  not  from  issuance 
violates  no  Federal  right  or  title;  6  neither  does  the  converse  holding." 
The  question  whether  a  Federal  survey  would  constitute  a  technical  evic- 
tion so  as  to  justify  suit,  is  not  Federal. s  No  Federal  question  can  be 
deemed  involved  in  a  suit  to  recover  purchase  price  paid  at  tax  sale,  from 
fact  that  exemption  of  such  property  from  taxation  is  of  Federal  origin.!" 

A  partition  suit  between  parties  who  have  taken  patent  from  the  United 
States  as  tenants  in  common,  is  not  reviewable; lo  nor  a  boundary  dispute 
between  patentees.il  Nor  is  a  controversy  between  parties  claiming  from 
a  common  grantor  whose  title  from  the  United  States  is  not  disputed.i2 
And  a  State  decision  refusing  to  aid  either  of  two  claimants  to  land  which 
the  Supreme  Court  has  declared  belongs  to  the  United  States,  is  not  review - 

2iAtherton  v.  Fowler,  91  U.  S.  145,        sMartin   v.   Thompson,    120  U.    S. 

23  L.  ed.  2G5.  376,   30  L.   ed.   679,   7   Sup.   Ct.  Rep. 

2  2Lytle  V.  Arkansas,  22  How.  193,  586. 

16  L.  'ed.  306.  eDibble  v.  Bellingham  Bay,  etc.  Co. 
23Maguire  v.  Tyler,   1   Black,  203,  163  U.  S.  73,  41  L.  ed.  72,  16  Sup.  Ct. 

17  L.  ed.  1.37.  Rep.  939. 

2 < French-Glenn  Co.  v.  Springer,  185  ^Carothers    v.    Mayer,    164    U.    S. 

U.  S.  53,  46  L.  ed.  800,  22  Sup.  Ct.  .327,  41  L.  ed.  453,  17   Sup.  Ct.  Rep. 

Rep.  563.  106. 

iGalvp«ton,  etc.  Rv.  v.  Texas,  170  sReene  v.  Clark,  10  Pet.  292.  9  L. 

U.  S.  241,  42  L.  ed.  1017,  18  Sup.  (^t.  ed.  429. 

Rep.  603;  Michigan  v.  Flint,  etc.  R.  sTyler  v.   Cass  Co.  142  U.   S.  291, 

R.   152  U.   S.  368,  38  L.   ed.  478,  14  35  L.  ed.  1016,  12  Sup.  Ct.  Rep.  225. 

Sup.  Ct.  Rep.  586:   Shaffer  v.  Sard-  loDownes  v.  Scott,  4  How.  502,  11 

day,  19  How.  21,  15  L.  ed.  592:  Cook  L.  ed.  1075. 

Co.  V.  Calumet,  etc.  Co.  138  U.  S.  651,  nMoreland  v.  Page,  20  How.  523, 

34  L.  ed.  1110,  11  Sup.  Ct.  Rep.  435.  15  L.  ed.  1009:  Lanfcar  v.  Hunley,  4 

2Carpentcr   v.    vVilliams,    9    Wall.  Wall.  209,  18  L.  ed.  325:   Sweringen 

780.  19  L.  ed.  827.  v.  St.  Louis,  185  U.  S.  45,  4<3  L.  ^ed. 

3McDonough  v.  Millandon,  3  How.  795.  22  Sup.  Ct.  Rep.  569. 

707,  11  L.  ed.  787.  i2Romie  v.  Casanova,  91  U.  S.  381, 

<Yesler     v.     Washington     H.     L.  23  L.  ed.  374;   Hastings  v.  Jackson, 

Comrs.    146    U.    S.    654,    36    L.    ed.  112  U.  S.  237,  28  L.  ed.  712,  5  Sup. 

1119,  13  Sup.  Ct.  Rep.  190.  Ct.  Rep.  113. 

233 


§   38   [q]  THE     SUPREME     COURT.  [Code  Fed. 

able.13  In  a  number  of  cases  the  Supreme  Court  has  disclaimed  jurisdic- 
tion on  error,  over  suits  respecting  hinds  and  other  property  rights. n  and 
foreclosure  suits, is  because  the  questions  were  purely  local  and  no  Federal 
right  or  title  was  involved  or  denied. 16 

[q] — decisions  affecting  mining  titles  or  claims. 

W'hile  mines  and  mining  claims  very  generally  involve  rights  or  titles 
resting  upon  Fedei'al  law,  there  are  many  questions  respecting  them,  even 
controversies  between  rival  vlainiants,i8  that  may  be  decided  by  State  courts 
without  creating  a  right  to  writ  of  error.  It  has  been  held  that  no  Fed- 
eral question  is  involved  in  deciding  that  abandonment  for  fourteen  years 
bars  a  right  to  a  mining  claim; is  in  deciding  against  lessee's  right  to  re- 
locate; 20  in  holding  party  estopped  to  deny  validity  of  location; 21  in 
liolding  that  cotenant  relocating,  became  trustee  for  the  others; 22  and 
ihat  patent  bars  right  to  antecedent  defenses  in  ejectment. 2  3  But  if  a 
state  court  deny  effect  to  a  relocation  of  a  forfeited  claim,  error  will  lie. 2  4 

[r] — titles  or  claims  under  treaty. 

In  a  number  of  cases  State  decisions  against  title  claimed  iinder  a 
treaty,i  and  against  other  claims  under  a  treaty,2  have  been  reviewed  on 
error.  But  the  party  must  claim  under  a  treaty  in  his  own  behalf  and 
not  set  up  a  title  thereunder  in  a  third  person  and  in  which  he  has  no 
interest;  3   or   set   up   a  right   against   the  treaty.*      If  the  decision   rests 

isGaines  v.  Hale,  93   U.   S.    4    23  U.  S.  198,  45  L.  ed.  152,  21  Sup.  Ct. 

L.  ed.  782.                                           '  104. 

i4See  Maney  v.  Porter,  4  How.  58,  2iSpeed   v.    McCarthv,    181    U.    S. 

11  L.  ed.  873; 'Cornell  Univ.  v.  Fiske,  275.  45  L.  ed.  858,  21  Sup.  Ct.  Rep. 

136  U.  S.  174,  34  L.  ed.  427,  10  Sup.  G13. 

Ct.  Rep.  775;  Almovester  v.  Kenton,  22Speed    v.    McCarthy,    181    U.   S. 

9  How.  9,  13  L.  ed.  21;  Long  v.  Bui-  276.  45  L.  ed.  859.  21   Sup.   Ct.  Rep. 

lard,  117  U.  S.  621,  29  L.  ed.  1004,  6  613. 

Sup.  Ct.  Rep.  917;    Bushnell  v.  Croke  23Carothers   v.    Mayer,    164   U.    S. 

M.   Co.    148    IT.    S.    689,    37    L.   ed.  327,  41  L.  ed.  453,  17  Sup.   Ct.  Rep. 

010,  13  Sup.  Ct.  Rep.  771;  Tnrner  v.  106. 

New  York,   168  U.   S.   95,  42   L.   ed.  24Lavaguino   v.    Uhlig,    198   U.    S. 

392,  18  Sup.  Ct.  Rep.   38;   Columbia  443,  49  L.  ed.  1119,  25  Sup.  Ct.  Rep. 

W.   P.   Co.  V.   Columbia.  St.   Rv.   172  710. 

U.    S.   492,   43   L.   ed.    521,    19    Sup.  iMartin  v.  Hunter,  1  Wheat.  352, 

Rep.  247.  4  L.  ed.  97 ;  Henderson  v.  Tennesses, 

T  sWood    V.    Brady,    150  U.   S.    23,  10  How.  323,  13  L.  ed.  434. 

37   L.   ed.   981,    14   Sup.   Ct.   Rep.   6;  2Ker  v.  Illinois,  119  U.  S.  441,  30 

French   v.   Hopkins,    124   U.    S.    524,  L.    ed.    421.    7    Sup.    Ct.    Rep.    225: 

31   L.  ed.  536,  8  Sup,   Ct.   Rep.   589;  Burthe  v,    Denis,    133   U,   S.   520,   33 

Avery  v.   Popper,    179  U.   S.   315,  45  L.  ed.  708.  10  Sup.  Ot.  Rep.  335;  Wor- 

L.  ed.  207,  21  Sup.  Ct.  Rep.  94.  cester   v.   Georgia,   6   Pet.   541,   8   L. 

ifiSee  also  supra  note.Ccc]  ed.  483. 

isBlackburn  v.    Portland,   etc.    Co.  sQwings  v.  Norwood.  5  Crancli,  348, 

175  U.  S.  579,  44  L.  ed.  276,  20  Sup.  3  L.  ed.  120;  Henderson  v.  Tennessee. 

Ct.  Rep.  222.  10  How.  323,  13  L.  ed.  434;  Verden  v. 

laMoran  v.  Horsky,  178  U.  S.  215,  Coleman,  1  Black,  474,  17  L.  ed.  161. 

44  L.  ed.  1042,  20  Sup.  Ct.  Rep.  856.  See  supra,  note.[&] 

2  0l^wry  V.  Silver  City  Min.  Co.  179  4 United  States  v.  Old  Settlers,  148 

234 


Procedure]  ON  WRIT   OF    ERROR   TO    STATE    COURTS.  §  38   [t] 

upon  other  ground  such  as  the  statute  of  limitations  there  is  no  right  of 
review; 5  nor  where  the  State  court  merely  settles  conflicting  claims  to 
the   amount   of   a   treaty   award ;«    or   to   a   grant   recognized   by   treaty.- 

[s]— decisions  affecting  rights,  titles  or  privileges  under  bankruptcy  laws. 

Error  will  lie  to  a  State  decision  against  a  claim  that  a  sale  or  tranr^fer 
was  fraudulent  under  the  bankrupt  law;H>  or  against  any  other  claim  si-t 
up  under  the  baakrupt  lawjH  or  against  a  title  based  on  such  law;i2  oj 
against  a  claim  of  immunity  set  up  by  a  bankrupt  under  his  discharge.is 

But  the  legal  effect  of  a  new  promise  to  pay  after  discharge,!  5  or  of  pre- 
sentation of  a  check  as  an  equitable  transfer  two  months  before  bank- 
ruptcy; is  or  the  question  whether  a  bankrupt  is  really  trustee  for  a 
client  as  to  certain  property,!"  or  has  no  title  to  property  in  question,i8 
have  all  been  held  to  give  no  right  to  review  on  error  to  a  State  court. is 
A  State  court's  decision  as  to  what  should  be  deemed  sufficient  evidence 
of  fraud  in  a  conveyance  or  its  application  of  the  rule  laid  down  to  the 
facts  of  the  case  at  hand,  gives  no  right  to  Federal  review  where  no  Fed- 
eral right,  title  or  privilege  is  denied.2  0  A  decision  in  favor  of  the  im- 
munity claimed  under  a  bankruptcy  discharge  is  not  reviewable.2i  A  State 
decision  refusing  to  set  aside  a  bankruptcy  discharge  because  of  laches, 
does  not  deny  a  Federal  right. 2  2 

[t] — under  patent  laws. 
A  State  decision  merely  construing  and  enforcing  a  contract  respecting 

U.  S.  468,  37  L.  ed.  509.  13  Sup.  Ct.  S.    453,    30    L.    ed.   462,    7    Sup.    Ct. 

Rep.  650.  Rep.  281;   Palmer  v.  Hussev,  119  U. 

sSeneca  Nation  v.  Christv,  162  U.  S.  98.  30  L.  ed.  362.  7  Sup.'  Ct.  Rep. 

S.   289.   40   L.   ed.   970,    16  "Sup.    Ct.  158;  Robv  v.  Colehorn,  146  U.  S.  160, 

Rep.  828.  36  L.   ed'  922,   13   Sup.   Ct.   Rep.   47. 

fiCiill    V.   Oliver,    11    How.    547,    13  But  see   Smallev  v.   Langomour,   19o 

L.  ed.  799.  U.  S.  93,  49  L.'ed.  400,  25  Sup.  Ct. 

7McDonough   v.  Willandon,  3  How.  Rep.  216. 

707,  11  L.  ed;  787.  i5Linton  v    Stanton,  12  How.  426, 

loSharpe  v.  Doyle,  102  U.  S.  688,  13  L.  ed.  1050. 

26  L.    ed.   277;    Factors   Ins.   Co.   v.  leBoatmans    Bank    v.    State    Sav. 

Murphy.  Ill  U.  S.  741.  28  L.  ed.  582,  Assn.   114  U.   S.   268,  29  L.  ed.   174, 

4  Sup.  Ct.  Rep.  679.  5  Sup.  Ct.  Rep.   878. 

uMays  V.  Fritton.  131  U.  S.  CXV.,  iTRoby     v.     Colehour,     146    U.    S. 

21  L.  ed.  127;  Williams  v.  Heard,  140  161,  30  L.  ed.  922,  13  Sup.  Ct.   Rep. 

U.  S.  535,  35  L.  ed.  550,  11   Sup.  Ct.  47. 

Rep.  885;   Dushane  v.   Beall.  161   U.  isScott  v.  Kellv,  22   Wall.   59,   22 

S.  518.  40  L.  ed.  791,  16  Sup.  Ct.  Rep.  L.  ed.  729. 

637;   Jenkins  v.  Loewenthal,    110  U.  i9MeKerina  v.  Simpson,  129  U.  S. 

S.  222.  28  L.  ed.  129.  3  Sup.  Ct.  Rep.  ,511,   32  L.  ed.   771,  9  Sup.  Ct.  Rep. 

638;  Trallo  v.  Clews,  115  U.  S.  534,  365. 

29  L.  ed.  467,  6  Sup.   Ct.  Rep.   155.  2  0Strader  v.  Baldwin,  9  How.  262, 

i2New  Orleans,  etc.  R.  11.  v.  Dela-  13  L.  ed.  130. 

ware.    114   U.   S.   506.   29   L.    ed.   244  2iSee   vSmallev   v.    Langcnour,    196 

5  Sup.  Ct.  Rep.  1009.  U.  S.  93,  49  L.'  ed.  400,  25  Sup.   Ct. 

isDiniock  v.  Revere  C.  Co.  117  U.    Rep.  216,  also  note.  20. 
S.  564.  29  L.  ed.  994,  6  Sup.  Ct.  Rep.        2  2Calcote  v.  Stanton,  18  How.  245, 
8.55;   Winchester  v.  Heiskell,   119  U.    15  L.  ed.   348. 

235 


§  38   [u]  THE    SUPREME  COURT.  [Code  Fed. 

a  patent, 1  or  rescinding  such  a  contract,2  or  deciding  between  two  claim- 
ants to  ownership  of  a  patent  and  that  one  of  them  is  estopped,3  is  not 
reviewable  on  error  where  no  question  is  made  of  any  right,  title  or  im- 
munity under  the  patent  laws. 4  The  question  when  a  case  is  deemed  to 
arise  under  the  patent  laws  is  elsewhere  discussed. 5 

[u] — decisions  under  national  bank  laws. 

A  State  court's  decision  that  the  making  of  a  lease  was  not  permissible 
*.s  an  incidental  preliminary  matter  which  a  national  bank  is  authorized 
V)  do  before  receiving  its  authorization  to  do  business  from  the  comp- 
troller, is  reviewable  on  error.T  So  also  is  a  decision  where  powers  of  a 
national  bank  are  called  in  question; 8  or  an  exemption  claimed  under  the 
national  bank  law;  9  or  a  liability  to  pay  notes  issued  while  national  bank 
was  a  State  bank;!")  or  a  liability  to  pay  assessment  on  savings  bank 
stock  on  ground  of  ultra  vires,  n 

But  there  is  no  right  to  writ  of  error  to  review  a  decision  allowing 
an  exemption  claimed;  12  nor  where  a  case  involves  merely  questions  gov- 
erned by  the  laws  of  a  State  and  no  right,  title  or  immunity  under  the 
national  bank  laws,  such,  for  instance,  as  the  validity  of  gift  of  bank 
shares;  13  or  whether  funds  in  a  bank's  hands  belong  to  plaintiff; l* 
or  whether  transferee  of  shares  is  liable  for  failure  to  fill  in  an 
indorsement  in  blank  of  the  shares. 1 5  A  State  decision  refusing  to  en- 
force a  usurious  contract  of  a  national  bank  involves  no  Federal  ques- 
tion; is  nor  one  holding  that  claim  for  breach  of  lease  is  an  existing  claim 
against  a  bank  at  time  of  insolvency.!'? 


iMarsh  v.  Nichols,  140  U.  S.  354,  lOMetropolitan  Nat.  Bank  v.  Clag- 

35  L.  ed.  417,  11   Sup.  Ct.  Rep.  798.  get,   141    U.   S.    526,    35   L.   ed.   841, 

2Wade  v.   Lawder.   165   U.   S.  627,  12  Sup.  Ct.  Rep.  60. 

41    L.  ed.  851,  17   Sup.  Ct.  Rep.  425.  nCalifornda  Nat.  Bank  v.  Kenne- 

sPittsburgh,  etc.  Co.  v.  Cleveland,  dy,  167  U.  S.  300,  42  L.  ed.  198,  17 

etc.  Co.  178  U.  S.  279,  44  L.  ed.  1068,  Sup.  Ct.  Rep.  831. 

20  Sup.  Ct.  Rep.  931.  i2Bank  of  Commerce  v.  Tennessee, 

nVade  V.   Lawder,   165  U.  S.   627,  161  U.  S.  145,  40  L.  ed.  645,  16  Sup. 

41  L.  ed.  851,   17  Sup.  Ct.  Rep.  425;  Ct.  Rep.  456. 

Pratt  V.  Paris  Gas  Co.  168  U.  S.  259,  isLeyson   v.   Davis,    170  U.   S.   39, 

42  L.  ed.  458,  18  Sup.  Ct.  Rep.  62.  42  L.  ed.  939,  18  Sup.  Ct.  Rep.  500. 
5 See  ante  §  15;  post  §  120.  k  Capital  Bank  v.  First  Nat.  Bank 
nicCormick  v.  Market  Nat.  Bank,  of  Cadiz.  172  U.  «.  432,  43  L.  ed.  502, 

165  U.  S.  538,  41  L.  ed.  817,  17  .sup.  19  Sup.  Ct.  Rep.  202. 

Ct.    Rep.    433;    Seeberger   v.    McCor-  isLe  Sassier  v.  Keimedy,  123  U.  S. 

mick,   175   U.   S.  278,  ^4  L.  ed.   161,  524,  31  L.   ed.  262,  8  Sup.   Ct.  Rep. 

20   Sup.  Ct.  Rep.   128.  244. 

sSwope   V.    Leffingwell,    105   U.    S.  leUnion   Nat.   Bank  v.   Louisville, 

4,  26  L.  ed.  939;  California  Nat.  Bank  etc.  Ry.  163  U.  S.  331,  41  L.  ed.  177, 

V.  Kennedy,  167  U.  S.  365,  42  L.  ed.  16  Sup.  Ct.  Rep.  1039. 

198.  17  Sup.  Ct.  Rep.  831.  1 7 Chemical  Bank  v.  Hartford,  etc. 

9Logan  Co.  Bank  v.  Townsend,  139  Co.   161   U.  S.   10,  40  L.   ed.  595,  16 

U.  S.  72,  35  L.  ed.  107,  11  Sup.  Ct.  Sup.  Ct.  Rep.  439. 
Rep.   496. 

236 


Procedure]  FROM  CIRCUIT  COURT  OF  APPEALS.  S   39   [a] 

[v]  State  decision  against  a  title,  right,  privilege  or  immunity  claimed 
under  a  Federal  commission  or  authority. 
The  act  of  1867  substituted  the  word  '•immunity"  for  '-exemption"  in 
this  clause,  and  added  after  "commission"  the  words  "or  authority  exer- 
cised under"  the  United  States.20  A  State  decision  declaring  a  liability  for 
attorney's  fees  on  Federal  injunction  bond  is  reviewable  on  error,  where 
it  is  contended  that  by  the  Federal  practice  an  attorney  fee  is  not  an  ele- 
ment of  damages.  21  Denial  by  a  State  court  of  a  claim  that  a  proceeding 
was  barred  by  an  order  of  the  circuit  court,  is  reviewable  on  error. 2  2  But 
it  is  not  a  denial  of  a  Federal  right  for  a  State  court  to  proceed  with  a 
cause  over  which  the  circuit  court  has  refused  jurisdiction. 2  3  Where  a 
Federal  attachment  suit  has  been  abandoned,  a  State  court's  decision  that 
it  had  control  of  the  property  garnished,  involves  no  Federal  question.2  4 
A  decision  against  a  claim  that  Federal  foreclosure  proeeedings  had  dis- 
charged a  lien,  is  against  a  right  claimed  under  Federal  authority; 25  so 
also  is   a  decision  against  the  validity  of  Federal  execution  sale.2  6 

§  39.     From  circuit  court  of  appeals. 

In  all  cases  not  hereinbefore,  in  this  section,  made  final [i.  e.  in 
cases  appealable  to  the  circuit  court  of  appeals  other  than  cases  in 
which  the  jurisdiction  is  dependent  entirely  upon  the  opposite 
parties  to  the  suit  or  controversy  being  aliens  and  citizens  of  the 
United  States  or  citizens  of  different  States,  and  other  than  cases 
arising  under  the  patent  laws,  under  the  revenue  laws,  and  under 
the  criminal  laws,  and  other  than  admiralty  cases ^]  there  shall  be 
of  right  an  appeal  or  writ  of  error  or  review  of  the  case  by  the  Su- 
preme Court  of  the  United  States  where  the  matter  in  controversy 
shall  exceed  one  thousand  dollars  besides  costs. 

Part  of  §  6  act  March  3,  1891,  c.  517,  26  Stat.  828,  U.  S.  Comp.  Stat. 
1901,  p.  550. 

[a]     Cross  references  to  other  parts  of  the  section. 

Other  portions  of  §  6  confer  upon  the  circuit  court  of  appeals  a  certain 
appellate  jurisdiction  over  district  and  circuit  courts; 3   authorize  the  cer- 

20Oompare  the  two  in  Murdock  v.  160  U.  S.  582,  40  L.  ed.  536,  16  Sup. 

Memphis,  20  Wall.  590,  22L.  ed.  437.  Ct.  Kep.  389. 

2iTullock   v.   Mulvane,    184   U.    S.        s^Iissouri  Pac.  Ry.  v.  Fitzgerald, 

504,  46  L.  ed.  663,  22  Sup.  Ct.  Rep.  160  U-  S.  578,  40  L.  ed.  536,  16  Sup. 

372;    Missouri,    etc.     Ry.    v.    Elliott,  Ct.  Rep.  389. 

184  U.  S.  539,  46  L.  ed.  673,  22  Sup.      ,  "^^"So'f^'c^^^A^-^'.,^;  ""-^    /,«• 
Ct  Rpn    dxa  '  f     ^^^    Q^    J 72  U.  S.  507,  43  L.  ed.  528. 

■  ^^'  19  Sup.  Ct.  Rep.  238. 

2  2Texas,  etc.  Ry.   v.  Johnson,   151        2  6Erwin  v.  Lowry,  7  How.  179,  12 
U.  S.  99,  38  L.  ed.   81,  14  Sup.  Ct.    l_  ed.   655. 
I^«P-  250.  1  See  post,  §  77. 

2»Missouri  Pac.  Ry,  v.  Fitzgerald,        sPost,    §   77. 

237 


§   39   [b]  THE   SUPREME    COURT.  [Code  Fed. 

tifying  of  questions  to  the  Supreme  Court  ;^  and  provide  for  review  of  the 
circuit  court  of  appeals  decisions  by  certiorari  from  the  Supreme  CJourt 
at  the  discretion  of  the  latter.  5 

[b]     Scope    of  appellate  jurisdiction  under  this  section. 

It  is  obvious  that  appellate  jurisdiction  conferred  on  the  Supreme  Court 
by  this  section  is  to  be  determined  by  ascertaining  the  extent  of  the  ap- 
pellate jurisdiction  granted  to  the  circuit  court  of  appealss  and  eliminating 
therefrom  the  cases  made  final  in  that  court. f  Cases  arising  under  laws  of 
the  United  States  other  than  the  patent,  revenue,  admiralty  or  criminal 
laws,  involving  the  construction  but  not  the  validity  of  such  laws,  would 
seem  to  be  the  chief  class  of  cases  in  which  an  appeal  lies  to  the  Supreme 
Court  from  the  circuit  court  of  appeal,  s  There  are  certain  cases  in  which 
the  aggrieved  party  has  a  choice  of  appeal  to  the  circuit  court  of  ap- 
peals or  to  the  Supreme  Court  direct. 9 

As  cases  to  which  a  Federal  corporation  is  party  are  deemed  to  arise 
under  the  Federal  laws,  they  are  appealable  from  the  circuit  court  of 
appeals  to  the  Supreme  'Coui't,  although  in  no  other  respect  involving  a 
Federal  question  or  law.io  So  an  action  to  which  a  national  bank  re- 
ceiver appointed  by  the  comptroller,  is  party,  is  one  arising  under  Federal 
laws  and  thus  cognizable  in  the  Supreme  Court ;  1 1  and  an  action  against  a 
Federal  marshal  for  acts  officially  done  by  him,  even  though  other  parties 
were  joined  as  to  whom  jurisdiction  rested  upon  diverse  citizenship  ;12 
and  an  action  for  infringement  of  a  trademark  under  the  act  of  1881. u 
Appeal  lies  to  the  Supreme  Court  from  the  circuit  court  of  appeals  in  an 
action  involving  the  interpretation  of  "mineral  lands"  excepted  from 
a  railroad  land  grant ;i*  also  in  a  suit  to  cancel  a  patent  as  that  is  not 
deemed  to  arise  under  the  patent  laws  or  to  be  therefore  finally  cognizable 
in  the  circuit  court  of  appeals. is  But  an  action  upon  common  law  right 
of  literary  property  and  not  under  the  copyright  laws  is  not  appealable 
from  the  circuit  court  of  appeals. 1 6  Even  though  a  suit  is  one  arising 
under  the  patent  or  revenue  laws  and  ordinarily  final  in  the  circuit  court* 
of  appeals,  yet  if,  in  plaintiff's  original  statement  of  his  case,  it  also 
shows  a  constitutional  question  of  the  kind  appealable  direct  from  the 
circuit  to  the  Supreme  Court,!^  the  circuit  court  of  appeals  judgment  may 

*       4Post,    §  40.  i2Sonnentheil  v.  Christian,  etc.  Co. 

BPost,  §  41.  172  U.  S.  401,  43  L.  ed.  492,  19  Sup. 

ePost,  §  77.  Ct.  Rep.  233. 

7Post,  §  77.[&]  isWarnerv.  Searle,  etc.  Co.  191  U. 

^Florida,  etc.  R.  R.  v.  Bell.  176  U.  S.    195,   48   L.   ed.    145,   24    Sup.    Ct. 

S.  327,  44  L.  ed.  490,  20  Sup.  Ct.  Rep.  Rep.  79. 

399.  i^Northern  Pac.  Ry.  v.  Soderberg. 

9 See  post,  §  42.[d]-[dd]  188    U.    S.    526.    47  "L.    ed.  575,  23 

lONorthern  Pac.  R.   R.  v.  Amato,  Sup.  Ct.  Ren.  365. 

144  U.  S.  472.  36  L.  ed.  506,  12  Sup.  i5United  States  v.  American  B.  T. 

Ct.  Rep.  740;  Union  Pac.  Ry.  V.  Har-  Co.    159    U.    S.    554,    40   L.    ed.    255, 

Tis,   158   U.    S.   327,   39   L.   ed.    1003,  16  Sup.  Ct.  Rep.  69. 

15  Sup.   Ct.  Rep.   843.  isPress   Port   Co.    v.   Monroe,    164 

iiAuten     V.     United     States    Nat.  U.  S.  105,  41  L.  ed,  367,  17  Sup.  Ct. 

Bank,   174  U.   S.   141.  43  L.   ed.  920,  Rep.  40. 

19  Sup.  Ct.  Rep.  628.  ivPost,   §   42. 

238 


Procedure]  FROM   CIRCUIT    COURT   OF   APPEALS.  §   ;;:i   [i : 

be  appealed  to  the  Supreme  Court.is  This  is  only  so,  however,  if  the  con- 
stitutional question  relied  on  to  sustain  the  second  appeal  is  decided  against 
appellant  and  not  in  his  favor.is  A  controversj'^  between  a  citizen  and  a 
foreign  state  not  being  made  final  in  the  circuit  court  of  the  United  States, 
may  go  to  the  Supreme  Court.20.  A  habeas  corpus  case  is  not  one  in  which 
the  matter  in  controversy  has  a  money  value  ;i  and  where  the  case  is 
such  that  appeal  j^roperly  lay  from  the  circuit  court  to  the  circuit  court 
of  appeals,  it  is  not  again  appealable  to  the  Supreme  Court. 2  Suits  against 
the  United  States  brought  in  the  circuit  court  are  in  the  absence  of  special 
constitutional  or  jurisdictional  questions,  of  the  class  appealable  first  to 
the  circuit  court  of  appeals. 3 

LcJ     Cases  made  final  in  the  circuit  court  of  appeals. 

A  suit  to  limit  liability  of  shipowners  is  deemed  an  admiralty  cause 
and  final  in  the  circuit  couit  of  appeals; 6  so  also  is  a  suit  to  review  an 
appraiser's  decision,  because  arising  under  the  revenue  laws."  If,  originally 
as  shown  by  the  original  pleadings,  the  jurisdiction  depended  entirely  on 
diverse  citizenship,  no  api>eal  can  lie  from  the  circuit  court  of  appeals  to 
the  Supreme  Court,  s  In  such  a  case  if  a  constitutional  question  arose  at 
the  trial  permitting  appeal  direct  to  the  Supreme  Court,  yet  if  the  party 
has  elected  to  go  to  the  circuit  court  of  appeals  its  decision  is  final,  and  he 
cannot  then  appeal  on  the  constitutional  question  to  the  Supreme  Court.!> 
And  where  the  Federal  question  arising  is  not  such  as  to  permit  a  direct  ap- 
peal from  the  circuit  to  the  Supreme  Cotirt  judgment  is  final  in  the  circuit 
court  of  appeals  notwithstanding  the  Fetleral  question.  10  Where  plaintiff 
relied  on  general  principles  of  law  and  nowhere  asserts  a  right  that  would 

isSpreckels  S.  R.  Co.  v.  McClain,  eQregon  R.  R.  Co.  v.  Balfour,  179 

192  U.  S.  409,  48  L.  ed.  499,  24  Sup.  U.  S.  56,  45  L.  ed.  84;   21   Sup.   Ct. 

Ct.  Rep.  376.  Rep.  28. 

isEmpire.  etc.   Co.  v.  Hanley,   198  "Anglo  California  Bank  v.  United 

U.   S.  292.   49  L.   ed.   1056,   25   Sup.  States,  175  U.  S.  37,  44  L.  ed.  64,  20 

Ct.  Rep.  691.  Sup.  Ct.  Rep.  19. 

20Columbia  v.  Cauca  Co.  190  U.  S.  *Ex   parte   Jones,    164   U.   S.    691, 

524,  47  L.  ed.  1159,  23  Sup.  Ct.  Rep.  ^  L.  ed.  601,  17  Sup.  Ct.  Rep.  222; 

704  Pope  V.   Louisviiie,   etc.    Rv.   173   U. 

licrf,  .r    Tvr^ffiff     n-   TT    Q    ^«7     S.   573,   43    L.   ed.    814,   19   Sup.    Ct. 
iKurtz  V.   MofBtt,   11»  U.   S.   48/,  '       p  ,        ,       x  '  p  4,       , 

29  L.  ed.  458,  6  Sup.  Ct.  Rep.  148;  f-^■^Jl.,ooo■^r^^nin^l 
Whitney  V.  Dick.  202  U.  S.  132,  50  L.    ^^^   ^r,     r,      '  ?^    \  ' 

ed.963,'26Sup.  Ct.Rep.584.  f,T    ?-o  ?t%    fn'«  ^nT™T'ioQ- 

!)T       r.     T>           ri   \  A  <^4.  ^       lAi  Idler,   lo9  U.   S.  408,  40  L.   ed.   199, 

.^\^\9\f^^\^]^'^'\ff^'''  If;^  16  Sup.  Ct.  Rep.  34;   Spencer  v.  Du- 

U.  S.  4^,  36  L.  ed.  344.  12  Sup.  Ct.  j^^  5*5,^  Co.  191  U.  S.  526,  48  L.  ed. 

Rep.  o\i.     See  infra,  note.M  287.  24  Sup.  Ct.  Rep.  174.     See  also 

30gden  v.  United  Stj^tes,  148  U.  S.  §  77. [p} 

390,  37  L.  ed.  493,  13  Sup.  Ct.  Rep.  !>Carv  Mfg.   Co.  v.  Acme,  etc.   Co. 

602;     United   States   v.   Coundert,  73  i87  U.'S.  427,  47  L.  ed,  244,  23  Sup. 

Fed.   505,   19   C.    C.   A.   543;    United  ct.  Rep.  211. 

States  V.  Harsha,  172   U.  S.   567,  43  lOThinl  St.   Ry.  v.  Lewis,   173  U. 

L.   ed.   556,    19    Sup.    Ct.    Rep.    294;  S.   457,   43   L.   ed.   766,    19   Sup.    Ct. 

United  States  v.  American  B.  Tel.  Co.  Rep.    451 ;    Avres   v.    Polsdorfer,    187 

159  U.  S.  548,  40  L.  ed.    255,  16  Sup.  U.  S.  585,  47  L.  ed.  314,  23  Sup.  Ct. 

Ct.   Rep.   69.  Rep.  196.     See  also  §  77. [&1 

239 


S   ^9    [lij  Tiiij    SUPREME   COURT.  [Code   Fed. 

be  sustained  by  one  construction  of  the  Federal  Ck>nstitution  or  laws  and 
defeated  by  another,  the  jurisdiction  of  the  circuit  court  of  appeals  must 
be  deemed  to  have  rested  upon  diverse  citizenship.il  Where  jurisdiction 
of  a  case  rests  upon  the  fact  that  it  is  ancillary  to  another  case  in  which 
Federal  jurisdiction  rests  upon  diverse  citizenship,  decision  in  the  ancillary 
suit  is  also  final  in  the  circuit  court  of  appeals.  12  Where  citizens  of 
different  states  claim  under  land  grants  of  ditferent  states  the  jurisdiction 
rests  on  diverse  citizenship  exclusively.  The  same  is  true  where  a 
cause  is  removed  for  local  prejudice; is  or  where  a  suit  brought  by  a  nation- 
al bank,  rests  on  diverse  citizenship.  1 4  An  affirmance  by  the  circuit  court 
of  appeals  of  a  judgment  dismissing  an  assignee's  suit  for  failure  to  show 
assignor's  citizenship  is  final  and  non-appealable.  15 

[d]  Only  final  judgments  reviewable — certified  questions. 
Interlocutory    orders    or    decrees    are    not    appealable    to    the    Supreme 

Court;  1'?  but  the  judgment  must  be  final.is  A  decree  reversing  and  specific- 
ally directing  the  decree  which  the  circuit  court  is  to  enter,  is  final; i9 
but  a  reversal  with  directions  to  the  circuit  court  to  remand  a  removed 
case  to  the  State  court  is  not  a  final  judgment,  but  merely  a  refusal  to  ad- 
judge.2  0     Reversal  for  further  proceedings  below  is  not  final.i 

[e]  Necessity  for  $1,000  value  in  dispute. 

A  clause  conferring  appellate  jurisdiction  only  where  a  certain  value 
is  in  dispute  is  uniformly  recognized  as  a  denial  of  appellate  jurisdiction 
over  certain  classes  of  cases  where  the  matter  is  in  dispute  is  not  sus- 
ceptible of  pecuniary  measurement.  Thus  on  habeas  corpus,  where  the  dis- 
pute is  a  question  of  individual  freedom,  or  even  whether  a  fine  shall  be 
paid,  or  a  question  of  both  fine  and  imprisonment  there  is  no  value  in  dis- 
pute and  no  right  of  appeal  under  this  section.2  This  matter  is  also 
discussed  in  the  annotation  of  other  similar  provisions.3 

iiBankers,  etc.  Co.  v.  Minneapolis,        isMacLeod  v.  Graven,  79  Fed.  84, 

etc.  R.  R.   192  U.   S.   371,  48  L.  ed.  24  C.  C.  A.  449. 

484,  24  Sup.  Ct.  Rep.  325.     See  also        isMerrill  v.  National  Bank,  173  U. 

Arbuckle  v.  Blackburn. 191  U.  S.  405,  S.    134,   43   L.   ed.   640,    19   Sup.    Ct. 

48  L.ed.  239,  24  Sup.  Ct.  Rep.  148.  Rep.  3G0. 

i2Stevenson  v.  Fain,  195  U.  S.  1C5,        2  0German  Nat.  Bank  v.  Speckert, 

49  L.  ed.  142,  25  Sup.  Ct.  Rep.  G.  181  U.  S.  409,  45  L.  ed.  927,  21  Sup. 
See  ante.  §  3.[i]  Ct.  Rep.  688. 

isCocliran  v.  Montgomery  Co.  199  lUnited  States  v.  Krall,  174  U.  S. 

U.  S.   260.    50    L.    ed.   182,   26   Sup.  385,    43    L.    ed.    1017,    19    Sup.    Ct. 

Ct.  Rep.   58.  Rep.   712. 

i4  0ontinental  Nat.  Bank  v.Buford,  2Kurtz  v.  Moffitt,   115  U.   S.  487, 

191  U.  S.  119,  48  L.  ed.  119,  24  Sup.  29  L.  ed.  458,  6   Sup.  Ct.  Rep.  148; 

Ct.  Rep.  54.  \Miitney    v     Dick.    202    U.     S.    132, 

isBenjamin  v.  New  Orleans.  169  U.  50  L.  ed.  963,  26  Sup.  Ct.  Rep.  584; 

S.  161,  42  L.  ed.  700.  18  Sup.  Ct.  Rep.  Law  Ow  Bew  v.  United  States,  144 

298.  U.  S.  47,  36  L.  ed.   344,  12  Sup.  Ct. 

iTKirwan    v.    Murphy,    170    U.    S.  Rep.  517. 

208,  42  L.  ed.  1009,  18  Sun.  Ct.  Rep.  sPost,  §  45,  [c] ;  48  [c]. 
592. 

240 


Procedure]  QUESTIONS  CERTIFIED.  S  40  [b] 

§  40.     Questions  certified  up  by  circuit  court  of  appeals  for  in- 
struction. 

In  every  such  subject  within  its  appellate  jurisdiction  [i,  e., 
in  every  case  in  which  the  judgment  or  decree  of  the  circuit  court 
of  appeals  is  made  final]/  the  circuit  court  of  appeals  at  any  time 
may  certify  to  the  Supreme  Court  of  the  United  States  any  ques- 
tions or  propositions  of  law  concerning  which  it  desires  the  in- 
struction of  that  court  for  its  proper  decision.  And  thereupon 
the  Supreme  Court  may  either  give  its  instruction  on  the  ques- 
tions and  propositions  certified  to  it,  which  shall  be  binding  upon 
the  circuit  court  of  appeals  in  such  case,  or  it  may  require  that 
the  whole  record  and  cause  may  be  sent  up  to  it  for  its  considera- 
tion, and  thereupon  shall  decide  the  whole  matter  in  controversy 
in  the  same  maimer  as  if  it  had  been  brought  there  for  review 
by  writ  of  error  or  appeal. ^^^'^''^ 

Part  of  §  6  of  act  Mar.  3,  1891,  chap.  517,  26  Stat.  828,  U.  S.  Comp. 
Stat.   1901,  p.  550. 

[a]    Other  parts  of  section  and  cross-references. 

The  other  portions  of  §  6  of  the  act  of  1891,  and  their  place  in  the 
text  are  stated  elsewhere. s 

[bj     Construction  of  clause  as  to  certifying  questions. 

It  is  said  that  the  foregoing  clause  is  to  be  interpreted  in  the  light  of 
similar  provisions  in  earlier  laws  regarding  certified  questions  from  the 
circuit  court.  9  The  questions  certified  must  each  contain  a  definite  in- 
dependent point  of  law  clearly  stated  and  without  an  admixture  of  facts.io 
Each  question  must  be  stated  as  a  distinct  point,  answerable  without 
reference  to  other  issues  of  law  in  the  case  and  a  certificate  which  neces- 
sitates an  answer  to  questions  not  propounded  must  be  dismissed. n 
Only  questions  of  gravity  and  importance  should  be  sent  up.2  And  if  the 
cause  is  appealable,  the  circuit  court  of  appeals  has  no  power  to  certify 
questions. 3     A  question  certified  may  be  answered  although  the  certificate 

7See  post.  §  77.  S.  600,  42  L.  ed.  614,  18  Sup.  Ct.  Rep. 

sAnte,  §  39  [a].  242. 

sGraver  v.  Paurot.  162  U.  S.  437,  nUnited  States  v.  Union  Pae.  Rv. 

40  L.ed.  10.30,  10  Sup.  Ct.  Rep.  799.  168  U.  S.  512,  42  L.  ed.  559,  18  Sup. 

lOEmsheimer  v.  New  Orleans.  186  Ct.  Rep.   167. 

n.  S.  46,  46  L.  ed.  1042,  22  Sup.  Ct.  2Lau  Ow  Bew,  Petitioner,  141  U.  S. 

Rep.  770;  Felsenheld  V.  United  States,  587,  35  L.  ed.  868,  12  Sup.  Ct.  Rep. 

186  U.  S.  134,  46  L.  ed.  1085,  22  Sup.  43. 

Ct.  Rep.  740;  Graver  v.  Faurot,  162  sTexas  &  P.  Ry.  v.  Gentry,  57  Fed. 

U.  S.  437,  '0  L.  ed.  1030,  16  Sup.  Ct.  422,  6  C.  C.  A.  -tl3. 
Rep.  799;  McHenry  v.  Alford,  168  U. 

Fed.  Proc— 16.  241 


§   40   [b]  THE    SUPREME    COURT.  [Code  Fed. 

has  been  recalled  where  the  result  in  any  event  is  the  dismissal  of  a 
writ  of  error  from  the  circuit  court  of  appeals.* 

The  circuit  court  of  appeals  has  refused  a  certificate  where  the  ques- 
tions of  law  and  fact  were  not  new  and  were  so  mixed  that  the  former 
could  not  be  segregated  without  sending  up  the  whole  case; 5  and  has  re- 
fused merely  because  a  proposed  question  was  novel; 6  or  because  a  supreme 
court  decision  of  the  only  point  seemed  ill-considered.^  It  will  certify 
only  when  in  doubt  and  upon  its  own  motion. s  Where  the  circuit  court 
of  appeals  certifies  the  question  of  jurisdiction  to  the  Supreme  Court,  it 
should  suspend  decision  upon  the  merits  until  the  jurisdictional  question  is 
determined; 9  but  perhaps  will  not  generally  withhold  a  decision  if  another 
question  is  sent  up.io 

The  whole  case  must  not  be  brought  up  by  splitting  it  into  questions.12 
Nor  is  a  general  question  which  is  capable  of  being  separated  into  specific 
queries,  a  proper  one.is  The  certificate  should  contain  a  sufficient  statement 
of  the  facts  on  which  the  questions  depend  and  not  merely  refer  to  the  rec- 
ord, i*  The  court  must  not  be  compelled  to  search  all  through  the  record. is 
Less  than  a  quorum  of  the  court  cannot  certify  a  question.  1 6  The  certifi- 
cate must  further  show  that  an  answer  to  the  questions  is  necessary  to  a 
decision  because  the  judges  are  in  doubt  or  diff'er  in  their  opinions  there- 
on.i7  Hence  a  certificate  prior  to  argument  in  the  circuit  court 
of  appeals  is  properly  refused. is  So  also  a  certificate  which  shows  that 
the  judges  are  unanimous  in  their  opinion  but  differ  from  the  views  and 
decision  in  another  circuit  must  be  dismissed.is  A  certificate  reciting 
a  conflict  between  prior  decisions  of  the  Supreme  Court   and  asking  ad- 

4Good  Shot  V.  United  States,   179  Ct.    Rep.    733;    German    Ins.    Co.   v. 

U.  S.  87,  45  L.  ed.  101,  21   Sup.  Ct.  Hearne,  118  Fed.  134,  55  C.  C.  A.  84; 

Rep.  33.  Warner  v.   New  Orleans,   167   U.   S. 

5Fabre  v.  Cunard,  etc.  Co.  59  Fed.  4G7,   42  L.ed.   239,   17   Sup.   Ct.  Rep. 

500.  8  C.  C.  A.  199.  892. 

6The  Majestic,  69  Fed.  844,  13  C.        isMcFenry    v.    Alford,   168  U.   S. 

C.  A.  676.  660,  42  L.  ed.  614,  18  Sup.  Ct.  Rep. 

7Lau  Ow  Bew  V.  United  States,  144  242. 
U.  S.  47,  36  L.  ed.  344,  12  Sup.  Ct.        i4Cincinnati,  etc.  R.  R.  v.  McKeen, 

Rep.  517.  149  U.  S.  261,  37  L.  ed.  725,  13  Sup. 

^Andrews  v.  National,  etc.   Co.  77  Ct.  Rep.  840.     This  means  the  funda- 

Fed.  774,  23  C.  C.  A.  454.     The  cer-  mental  and  not  the  evidential  facts: 

tifying  of  a  question  is  discretionary  Sigafus  v.  Porter,  85  Fed.  689,  29  C. 

and  cannot  be  demanded  as  of  right;  C.  A.  391. 

Cella  V.  Brown,  144  Fed.  742, (C.        isFelsenheld  v.  United  States.  186 

C.  A.)  .  U.  S.  134,  46  L.  ed.  1085,  22  Sup.  Ct. 

9 United  States  v.  Jahn,   155  U.  S.  Rep.  740. 
114,  39  L.  ed.  87,  15  Sup.  Ct.  Rep.        1 6 Cincinnati,  etc.  R.  R.  v.  McKeen, 

39.  149  U.  S.  261,  37  L.ed.  725,  13  Sup. 

10 Sigafus  v.   Porter,   84   Fed.   430,  Ct.  R«p.  840. 
28  C.  C.  A.  443.  iTGerman  Ins.  Co.  v.  Hearne.   118 

i2Del  Monte  M.  Co.  v.  Last  Chance  Fed.  134,  55  C.  C.  A.  84. 
Co.  171  U.  S.  55,  43  L.  ed.  72,  18  Sup.        isLouisville,   etc.   Ry.  v.   Pope,   74 

Ct.  Rop.  895;Emsheimer  v.  New  Or-  Fed.  1,  20  C.  C.  A.  253. 
leans,  ISO  U.  S.  42,  46  L.  ed.  1042,  22        laColumbus     W.     Co.     v.   Robbins, 

Sup.   Ct.   Rep.   770;    Cross  v.  Evans,  148  U.  S.  269,  37  L.  ed.  445,  13  Sup. 

167   U.  S.  62,  42  L.  ed.  77,  17   Sup.  Ct.  Rep.  594. 

242 


Procedure]  REVIEW    BY    CERTIORARI.  §  41    [bl 

vice  as  to  which  to  follow  is  not  good  and  will  be  dismissed.  20  The  same 
is  true  of  a  question  asking  whether  a  certain  prior  case  is  applicable  to 
the  one  in  hand.i 

§  41.  Review  by  certiorari  of  decisions  made  final  in  the  cir- 
cuit court  of  appeals. 
In  any  such  case  as  is  hereinbefore  made  final  in  the  circuit  court 
of  appeals  [i,  e.,  cases  in  which  the  jurisdiction  is  dependent  en- 
tirely upon  the  opposite  parties  to  the  suit  or  controversy  being 
aliens  and  citizens  of  the  United  States,  or  citizens  of  different 
States,  cases  arising  under  patent,  revenue  and  criminal  laws,  and 
admiralty  cases^^]^'^^''^'^^  it  shall  be  competent  for  the  Supreme 
Court  to  require,  by  certiorari  or  otherwise,  any  such  case  to  be 
certified  to  the  Supreme  Court  for  its  review  and  determination 
with  the  same  power  and  authority  in  the  case  as  if  it  had  been 
carried  by  appeal  or  writ  of  error  to  the  Supreme  Court. 

Part  of  §  6,  act  Mar.  3,  1891,  chap.  517,  26  Stat.  826,  U.  S.  Comp.  Stat. 
1901,  p.  550. 

[a]  Other  parts  of  section  and  cross-references. 

The  other  portions  of  §  6  of  the  act  of  1891  and  their  place  in  the  text, 
are  stated  elsewhere.12  When  questions  are  certified  up  by  the  circuit 
court  of  appeals  the  Supreme  Court  may  issue  certiorari  to  bring  up  the 
whole  record.13  R.  S.  §  716,  empowers  the  Federal  courts  to  issue  certio- 
rari in  aid  of  their  jurisdiction.!* 

[b]  Issuance  of  writ. 

The  power  to  bring  up  final  decrees  for  review  by  certiorari  "or  other- 
wise" means  other  writs  similar  thereto,  and  does  not  include  appeals.is 
The  power  to  issue  certiorari  is  entirely  discretionary,  and  the  Supreme 
court  has  declared  that  it  should  be  exercised  only  in  cases  of  gravity 
and  importance,  or  in  order  to  secure  uniformity  of  decision.16     It  is  an 

20Graver  v.  Eaurot,  162  U.  S.  438,        isAmerican  Const.  Co.  v.  Jackson- 

40  L.  ed.  1030,  16  Sup.  Gt.  Rep.  799.  ville,   Tampa    &   Key   West,    148   U. 

iWarner  v.   City  of  New  Orleans,  S.  372,    37    L.    ed.  486,  13  Sup.   Ct. 

167  U.  S.  467,  42  L.  ed.  239,  17  Sup.  Rep.  758;    Forsythe  v.  Haraond,  166 

Ct.  Rep.  892.  U.  S.  506,  41  L.  ed.  1095,  17  Sup.  Ct. 

iiPost   8  77  Rep.    665;    United    States    v.    Three 

i2Ant;,  §  39:[a]  Friends,  166  U.  S.  1    41   L.  ed.  897, 

i,A    iJ   e   An  17    Sup.   Ct.   Rep.    49a;    In   re   John 

13 Ante,  ^  40.  Woods.  143  U.  S..  202,  36  L.  ed.  125, 

i^Post,  §  841.  12  Sup.  Ct.  Rep.  417;   Lau  Ow  Bew 

isHuguley  Mfg.  Co.  v.  Galeton  C.  v.  United  SUtes,  144  U.  S.  47,  36  L. 

Mills,  184  U.  S.   294,  40  L.  ed.  546,  ed.     340,     12    Sup.    Ct.    Rep.     517; 

22  Sup.  Ct.  Rep.  452,  refusing  to  use  Sniitli  v.  \'ulcan  Iron  Works.  1G5  U. 

it  to  perfect  a  defective  record  in  a  513,  41  L.  ed.  810,  17   Sup.  Ct.  Rep. 

case  not  properly  appealable.  407. 

243 


§  41  [c] 


THE    SUPREME    COURT. 


[Code  Fed. 


appropriate  remedy  if  the  lower  court  erred  or  its  judgment  is  void.i'' 
This  power  may  be  exercised  regardless  of  the  status  of  the  case  in 
the  circuit  court  of  appeals,is  at  any  stage  of  the  proceedings  and  in 
advance  of  judgment ;19  though  ordinarily,  not  until  after  final  judgment.20 
It  may  issue  after  the  mandate  has  gone  down,  if  a  transcript  of  the 
record  is  still  in  the  circuit  court  of  appeals.  1  But  it  will  not  issue  to 
require  sending  up  of  case  over  which  circuit  court  of  appeals  has  no 
jurisdiction,  where  it  has  not  rendered  a  decision. 2  Certiorari  sought  near- 
ly three  years  after  the  judgment  below,  has  been  refused. 3  Error  in  dis- 
solving receivershij),'*  or  in  dismissing  instead  of  affirming  an  appeal, 5  and 
decisions  on  questions  of  local  State  law,<>  do  not  warrant  issuance  of  the 
writ.  But  questions  of  national  or  international  importance  do.^  Where  the 
record  is  before  the  Supreme  Court  on  return  to  rule  on  petition  for  man- 
damus, or  otherwise,  the  court  will,  if  it  decides  that  certiorari  is  proper, 
issue  the  writ  and  let  the  record  sent  up  in  response  to  the  rule,  stand 
as  a  return  to  the  certiorari,  s  It  is  only  cases  made  final  in  the  circuit 
court  of  appeals  that  may  be  taken  up  on  certiorari. »  Habeas  corpus  cases 
which  involve  no  question  giving  a  right  of  direct  appeal  from  the  circuit 
to  the  Supreme  Court  and  which  are  therefore  appealed  to  the  circuit 
court  of  appeals  belong  to  the  class  of  cases  made  final  there  and  may 
be  taken  by  certiorari  to  the  Supreme  Court. 10  It  seems  that  the  writ 
may  be  applied  for  any  time  within  one  year  of  the  judgment  below,  by 
analogy  to  the  time  allowed  for  writ  of  error.n 

[c]    Effect  of  writ  and  scope  of  review. 
The  awarding  of  certiorari  suspends  action  in  the  circuit  court  of  ap- 


I'^In  the  majority  of  cases  the 
writ  is  refused.  At  the  October  term 
1900,  76  applications  were  refused 
and  27  granted. 

18 Aspen  M.  Co.  v.  Billings,  150  U. 
S.  37,  37  L.  ed.  986,  14  Sup.  Ct.  Rep. 
4. 

isForsyth  v.  Hammond,  166  U.  S. 
513,  41  L.  ed.  1095,  17  Sup.  Ct.  Rep. 
665. 

2  0United  States  v.  The  Three 
Friends,  166  U.  S.  1,  41  L.  ed.  897, 
17  Sup.  Ct.  Rep.  495;  American  C. 
Co.  V.  Jacksonville,  etc.  Ry.  148  U. 
S.  383,  37  L.  ed.  486,  13  Sup.  Ct.  Rep. 
758.  It  has  been  refused  where  the 
judgment  below  was  not  final.  Chi- 
cago, etc.  Ry.  V.  Osborne,  146  U.  S. 
354,  3G  L.  ed.  1002,  13  Sup.  Ct.  Rep. 
281. 

iThe  Conqueror.  166  U.  S.  113,  41 
L.  ed.  937,  17  Sup.  Ct.  Rep.  510. 

2Goodshot  V.  United  States,  179  U. 
S.  89,  45  L.  ed.  101,  21  Sup.  Ct.  Kep. 
33. 


sBonin  v.  Gulf  Co.  198  U.  S.  115, 
49  L.  ed.  970,  25  Sup.  Ct.  Rep.  608. 

^American  Con.  Co.  v.  Jacksonville, 
etc.  Ry.  148  U.  S.  385.  37  L.  ed.  486, 
13  Sup.  Ct.  Rep.  758. 

5  Smith  V.  Vulcan  I.  Works,  165  U. 
S.  526,  41  L.  ed.  810,  17  Sup.  Ct.  Rep. 
407. 

6  In  re  Woods,  143  U.  S.  206,  36  L. 
ed.  125,  12  Sup.  Ct.  Rep.  417. 

"United  States  v.  Three  Friends, 
166  U.  S.  1,  41  L.  ed.  897,  17  Sup. 
Ct.  Rep.  495. 

sAmeiiican  S.  R.  Co.  v.  New  Or- 
leans, 181  U.  S.  283,  45  L.  ed.  862. 
21  Sup.  Ct.  Rep.  646. 

sUnited  States  v.  The  Three 
Friends,  166  U.  S.  1,  41  L.  ed.  897,  17 
Sup.  Ct.  Rep.  495. 

lOLau  Ow  Bew  v.  United  States, 
144  U.  S.  47,  36  L.  ed.  344,  12  Sup. 
Ct.  Rep.  517. 

iiThe  Conqueror,  166  U.  S.  110, 
41  L.  ed.  937,  17  Sup.  Ct.  Rep.  510, 


244 


Procedure]     APPEALS  FROM  CIRCUIT  AND  DISTRICT  COURTS.     §  42   [aj 

peals;  but  where  that  court's  mandate  has  ah'eady  gone  to  the  trial  court, 
the  latter  has  no  power  to  set  aside  orders  made  in  obedience  to  that 
mandate.i2  The  Supreme  Court  has  power  to  examine  the  entire  ease  on 
certiorari  including  the  action  of  the  circuit  court  of  appeals  on  a  former 
appeal;  13  but  it  will  confine  itself  to  the  errors  assigned  by  petitioner.i* 

§  42.  Appeals  from  circuit  and  district  courts  direct  to  Su- 
preme Court. 

Appeals  or  writs  of  error  may  be  taken  from  the  district  courts  or 
from  the  existing  circuit  courts  direct  to  the  Supreme  Court  in  the 
following  cases  'M^ 

In  any  case  in  which  the  jurisdiction  of  the  court  is  in  issue  ;^^^ 
in  such  cases  the  question  of  jurisdiction  alone'^''^  shall  be  certified 
to  the  Supreme  Court  from  the  court  below  for  decision.'^*^^"^'^^ 

From  the  final  sentences  and  decrees  in  prize  causes.  ^^^ 

In  cases  of  conviction  of  a  capital  crime,  i^'^ 

In  any  case  that  involves  the  construction  or  application  of  the 
Constitution  of  the  United  States. ^^^ 

In  any  case  in  which  the  constitutionality  of  any  law  of  the 
United  States,  or  the  validity  or  construction  of  any  treaty  made 
under  its  authority,  is  drawn  in  question. "^^^^ 

In  any  case  in  which  the  constitution  or  law  of  a  State  is 
claimed  to  be  in  contravention  of  the  Constitution  of  the  United 
States."! 

§  5  of  act  Mar.  3,  1891,  chap.  517,  26  Stat.  827,  as  amended,  29  Stat.  492, 
U.  S.  Comp.  Stat.  1901,  p.  549. 

[a]     Cross-references  and  enactments  repealed  or  superseded  by  above. 

Other  cases  are  appealable  to  tlie  circuit  court  of  appeals. i  The  general 
effect  of  the  circuit  court  of  appeals  act  on  Federal  appellate  jurisdiction 
is  elsewhere  considered. 2  A  right  of  direct  appeal  also  exists  in  a  few 
other  cases. 3  A  previous  act  of  Feb.  25,  1889,4  governing  appeals  from  the 
circuit  court  is  superseded  by  the  act  of  1891.  So  also  R.  S.  §  695,  as  to  ap- 
peal in  prize  cases  from  the  district  to  the  Supreme  Court,  is  superseded.  R. 
S.  §  651  and  §  698,  as  to  certificates  of  division  of  opinion  in  the  circuit 
court  are  superseded  by  this  section. 5  The  provision  of  the  commerce  act  of 
1887  giving  an  appeal  from  the  circuit  to  the  Supreme  Court  is  also  super- 

i2Louisvilie.  etc.  Ry.  v.  Trust  Co.  iPost,  §  77. 

78  Fed.  Go9.  2Ante,  §  37. 

i3Panama    R.    R.   v.    Napier,    etc.  3Post,  §§  60.  62. 

Co.  166  U.  S.  284,  41  L.  ed.  1004,  17  425  Stat.  693. 

Sup.  Ct.  Rep.  572.  ^United  States  v.  Rider,  163  U.  S. 

i4Hubbard  v.  Tod,  171   U.   S.  494,  139,  41  L.  ed.  101,  16  Sup.   Ct.  Rep. 

43  L.  etl.  246,  19  Sup.  Ct.  Rep.  14.  983. 

245 


§   42   [bj  THE   SUPREME   COURT.  [Code  Fed. 

seded,6  though  afterwards  restored.^  The  time  for  taking  an  appeal  or 
writ  of  error  under  this  section,  and  the  procedure  on  appeals  are  dis- 
cussed elsewhere. 

[b]     When  circuit  courts'  jurisdiction  deemed  in  issue. 

The  meaning  of  this  clause  has  frequently  been  misunderstood.  It  ia 
necessary  to  distinguish  between  power  to  take  jurisdiction,  and  its  exer- 
cise; between  power  in  the  court  under  admitted  facts,  and  whether  cer- 
tain facts  create  a  case  within  admitted  powers.  The  lower  Federal  courts 
possess  only  the  jui'isdiction  granted  by  Congress,  and  the  purpose  of 
the  provision  here  under  consideration  would  seem  to  be  to  afford  a  speedy 
and  authoritative  construction  of  such  Congressional  grant.  It  is  not  de- 
signed to  permit  review  of  questions  of  the  propriety  of  relief  given  or  de- 
nied in  the  exercise  of  jurisdiction,  or  questions  of  the  existence  or  non- 
existence of  facts,  which,  when  once  established,  leave  no  room  for  doubt  as 
to  the  powers  of  the  court.  The  jurisdictional  question  must  be  one  arising 
in  the  pending  suit  and  not  a  question  of  the  courts  jurisdiction  to  render 
a  decree  in  a  prior  cause. 9  It  must  be  a  question  of  the  circuit  or  district 
court's  power  as  a  Federal  court,  and  not  merely  the  question  whether  any 
court  of  equity  would  have  the  power  challenged  or  denied,  lo  The  ques- 
tion whether  a  state  court  or  the  circuit  court  had  priority  of  possession 
and  the  resulting  right  of  exclusive  control  is  not  a  question  of  jurisdic- 
tional power  which  may  be  certified.^!  The  question  of  a  district  court's 
power  to  punish  for  contempt  where  it  had  admitted  jurisdiction  over 
party  and  subject-matter  is  one  of  the  merits,  and  not  jurisdictional;  12 
and  the  same  is  true  of  its  determination  respecting  bankruptcy  exemp- 
tions.! 3  Dismissal  of  a  removed  case  for  want  of  jurisdiction  in  the  State 
court  does  not  involve  a  jurisdictional  question  that  may  be  certified.!-! 

Questions  of  the  power  of  a  circuit  or  district  court  as  a  Federal  court 
may  involve  questions  of  the  competency  of  parties  und&r  the  Federal 
laws,i6   or  of  the  existence  of  a  subject-matter  of  Federal  cognizance,i7 

6 Interstate  Commerce  Com.  v.  At-  S.  89,  49  L.  ed.  398,  25  Sup.  Ct.  Rep. 

chison,  etc.  Rv.  149  U.  S.  264,  37  L.  208. 
ed  727,  13   Sup.  Ct.  Rep.  837.  !iLouisville  T.    Co.  v.  Knott,   191 

7Post  §§  62,  63.  U.  S.  225,  48  L.  ed.  159,  24  »up.  Ct. 

sPost  §   1902,  et  seq.  Rep.  119. 

sQarey  v.  Houston  v.  T.  C.  R.  R.        !20'Neal  v.  United  States,   190  U. 

150  U.  S.  170,  37  L.  ed.  1041,  14  Sup.  S.  36,  47  L.  ed.  946,  23  Sup.  Ct.  Rep. 

Ct.  Rep.  63.  776. 

loSmith  V.  McKay,  161  U.  S.  355,        isLucius    v.    Cawthon-C.    Co.    196 

40  L.  ed.  731,  16  Sup.  Ct.  Rep.  490:  U.    S.    149,   49   L.    ed.    425,   25   Sup. 

Blythe  v.  Hinckley,  173  U.  S.    501,  43  Ct.  Rep.  214. 

L.    ed.   783,    19   Sup.   Ct.    Rep.    497;        i4Courtnev  v.  Pradt,  196  U.  S.  89, 

Mexican  C.  R.  R.  v.  Eckman.  187  U.  49  L.  ed.  398^,  25  Sup.  Ct.  Rep.  208. 
S.  432,  47  L.  ed.  247,  23  Sup.  Ct.  Rep.        leE.  g.   Mexican  C.  R.  R.  v.  Eck- 

211;   Louisville  T.  Co.  v.  Knott,  191  man,  187  U.  S.  432,  47  L.  ed.  247,  23 

U.  S.  225,  48  L.  ed.  159,  24  Sup.  Ct.  Sup.  Ct.  Rep.  211. 
Rep.  119;   Schweer  v.  Brown.  195  U.        !7E.  g.  Excelsior  W.  P.  Co.  v.  Pa- 

S.    171,   49   L.   ed.    144,    25   Sup.    Ct.  cific  B.  Co.  185  U.  S.  284,  46  L.  ed. 

Rep.  15;   Courtney  v.  Pradt,   196  U.  913.  22  Sup.  Ct.  Rep.  681. 

246 


Procedure]     APPEALS  FROM  CIRCUIT  AND  DISTRICT  COURTS.     §  42   [b] 

within  the  meaning  of  those  laws.  But  where  there  is  no  question  of 
the  competency  of  parties  or  sufficiency  of  subject-matter,  under  the 
Federal  laws,  the  jurisdiction  attaches,  and  a  judgment  of  dismissal  for 
want  of  equity  or  otherwise  is  one  in  the  exercise  of  jurisdiction  and  does 
not  authorize  direct  appeal.  It  is  not  a  denial  of  power  to  take  cognizance, 
but  an  exercise  of  that  power.is  So  a  dismissal  of  a  petition  in  bank- 
ruptcy because  petitioner  is  a  farmer  not  entitled  to  the  benefits  of  the 
law  is  not  a  denial  of  jurisdictional  power,  but  an  exercise  thereof.19 
In  passing  upon  an  objection  to  suit  by  a  stockholder  on  a  corporation's 
behalf  because  the  matters  required  by  the  94th  equity  rule  have  not 
been  complied  with,  the  court  is  exercising  jurisdiction  and  does  not  pass 
upon  a  question  of  jurisdictional  power.  20  The  right  of  direct  appeal 
because  of  a  jurisdictional  question  is  in  the  party  aggrieved  by  its 
decision.  Hence  if  the  decision  below  is  in  favor  of  the  jurisdiction,  the 
plaintiff  cannot  take  the  case  to  the  Supreme  Court  on  that  question  but 
must  go  to  the  circuit  court  of  appeals. 1 

A  question  whether  the  jurisdictional  value  in  dispute  required  by  act 
of  1891  existed; 2  or  whether  a  separate  controversy  existed  removable 
under  the  Federal  statute  ;3  or  whether  the  summons  whereby  jurisdiction 
over  defendant  was  claimed  was  validly  framed  or  served  ;4  or  whether 
the  citizenship  of  the  guardian  or  of  the  ward  is  controlling,^  all  go  to  the 
juri.sdictional  power  of  the  court  and  may  be  certified.  So  also  is  the  ques- 
tion whether  a  given  case  is  one  arising  under  the  patent  laws ;  6  or 
whether  a  Federal  district  court  had  power  to  decree  in  rem  against  a 
vessel  in  a  State  court  receiver's  possession,  for  a  maritime  lien.7      The 

"World's   Col.    Exp.   v.   U.    S.   56  169  U.  S.  97,  42  L.  ed.  674,  18  Sup. 

Fed.  654,   6   C.   C.   A.   58:    Smith   v.  Ct.  Rep.  264. 

McKav,  161  U.  S.  355,  40  L.  ed.  731,        4Remington    v.    Central   P.    R.    R. 

16    Sup.     Ct.     Rep.     490;    Blythev.  198  U.  S.  95,  49  L.  ed.  959,  25  Sup.  Ct. 

Hinckley,    173   U.    S.    501,   43    L.   ed.  Rep.  577;  Shepard  v.  Adams.  108  U. 

783,  19  Sup.  Ct.  Rep.  497;   Buildinn;  S.  618,  42  L.  ed.  602,  18  Sup.  Ct.  Rep. 

&  L.  Assn.  V.  Price,  169  U.  S.  46,  42  214:  St.  Louis  C.  C.  Co.  v.  American 

L.   ed.   655,    18    Sup.    Ct.    Rep.    251;  C.  Co.  125  Fed.  199.  60  C.  C.  A.  80: 

Courtnev  v.  Pradt,  196  U.  S.  89,  49  Conlev  v.  Mathieson  A.  Works,   190 

L.  ed.  398,  25  Sup.  Ct.  Rep.  208.  U.  S."406,  47  L.  ed.  1113.  23  Sup.  Ct. 

isDenver     First     Nat.     Bank     v.  Rep.  728;   Chicago  Bd.  of  T.  v.  Ham- 

Klug,  186  U.  S.  202,  46  L.  ed.  1127,  mend  E.  Co.  198  U.  S.  424,  49  L.  ed. 

22  Sup.  Ct.  Rep.  899.  1111,  25  Sup.  Ct.  Rep.  740:   Ken  lall 

201Ilinois,  etc.  R.  R.  v.  Adams,  180  v.  American  A.  L.  Co.  198  U.  S.  477, 

U.  S.  M,  45  L.  ed.  412,  21  Sup.  Ct.  49  L.  ed.  1133,  25  Sup.  Ct.  Rep.  768. 
Rep.  251.  SMexican  C.  R.  R.  v.  Eckman,  187 

lUnited  States  v.  Jahn,  155  U.  S.  U.  S.  429,  47  L.  ed.  245,  23  Sup.  Ct. 

112,  .39  L.  ed.  88,  15  Sup.   Ct.  Rep.  Rep.  211. 

39;  Evans  Co.  v.  McCaskill,  101  Fed.        eExcelsior  W.  P.  Co.  v.  Pacific  B. 

658,  41   C.  C.  A.  577.  Co.  185  U.   S.  284,  46  L.  ed.  913,  22 

2Wetmore  v.  Rvmer,  169  U.  S.  118,  Sup.  Ct.  Rep.  681. 
42  L.  ed.  682,  18  Sup.  Ct.  Rep.  293.        7The  Resolute,   168   U.  S.   440,  42 

sPowers  v.  Chesapeake  &  O.  R.  R.  L.  ed.  533,  18  Sup.  Ct.  Rep.  112. 

247 


§   42   [c] 


THE   SUPREME  COURT. 


[Code  Fed. 


clause  authorizes  the  review  of  a  jurisdictional  question  on  certificate,  only 
after  final  judgment, s  and  not  before  a  decision. » 

[cj     Necessity  for,  and  sufficiency  of  certificate. 

The  statute  requires  that  the  jurisdictional  question  be  certified  up,  and 
nothing  else.  12  Except  in  cases  where  the  only  question  involved  and 
decided  is  one  of  jurisdiction,! 3  it  is  necessary  that  a  certificate  of  the 
jurisdictional  question  be  made  and  otherwise  the  appeal  will  be  dis- 
missed. 1 4  The  word  certify  need  not  be  formally  used;  but  there  must 
be  a  plain  declaration  that  the  single  matter  which  is  by  the  record  sent 
up  to  the  Supreme  Court,  is  a  question  of  jurisdiction,  and  no  mere  sug- 
gestion of  that  fact  will  answer.is  Where  a  question  of  former  adjudica- 
tion as  well  as  of  jurisdiction  is  raised  by  a  demurrer,  it  is  not  a  case 
involving  only  jurisdiction  and  dispensing  with  a  certificate.!  6  Prayer 
for  appeal  though  stating  that  it  is  on  jurisdiction,  is  insufficient  as  a 
certificate,  where  it  specifies  no  jurisdictional  question;  1 7  and  gives  no 
hint  of  the  specific  objection  to  the  jurisdiction.!  8  An  assignment  of  errors 
after  term,  but  filed  nunc  pro  tunc,  is  insufficient  as  a  certificate.! 9  But 
prayer  for  appeal  upon  the  ground  that  court  erred  in  taking  jurisdiction, 
and  asking  that  that  question  be  certified  is  sufficient  where  the  certificate 
is  given. 20     The  absence  of  a  certificate  cannot  be  helped  out  by  resort 


sGates  v.  Bucki,  53  Fed.  961,  4 
C.  C.  A.  116;  United  States  v.  Rider, 
163  U.  S.  132,  41  L.  ed.  101,  16  Sup. 
Ct.    Hep.    983. 

sMcLish  V.  RofT,  141  U.  S.  668.  35 
L.  ed.  893,  12  Sup.  Ct.  Rep.  120; 
Bardes  v.  Ha  warden  Bank,  178  U.  S. 
526,  44  L.  ed.  1177.  20  Sup.  Ct.  Rep. 
1000. 

i2Blythe  v.  Hinckley,  173  U.  S. 
501,  43  L.  ed.  783,  19  Sup.  Ct.  Rep. 
497;  Shields  v.  Coleman,  157  U.  S. 
177,  39  L.  ed.  663, 15  Sup.  Ct.   Rep.  570. 

!3ln  such  cases  the  record  and  de- 
cree below  showing  such  fact  are 
sTiflicient  without  formal  certificate. 
Excelsior  W.  P.  Co.  v.  Pacific  B.  Co. 
185  U.  S.  284,  46  L.  ed.  913,  22  Sup. 
Ct.  Rep.  681;  Petri  v.  Creelman  L. 
Co.  199  U.  S.  487,  50  L.  ed.  281,  26 
Sup.  Ct.  Rep.  133;  Huntington  v. 
Laidley,  176  U.  S.  668,  44  L.^ed.  630, 
20  Sup.  Ct.  Rep.  526;  Cliappell  v. 
United  States,  160  U.  S.  507,  40  L. 
ed.  512,  16  Sup.  Ct.  Rep.  397;  Shields 
v.  Coleman,  157  U.  S.  168,  39  L.  ed. 
660,  15  Sup.  Ct.  Rep.  570;  In  re  Le- 
high M.  Co.  156  U.  S.  327,  30  L.  ed. 
438,  15  Sup.  Ct.  Rep.  375;  Interior  C. 
Co.  V.  Gibney,  160  U.  S.  219.  40  L. 
ed.  401,  16  Sup.  Ct.  Rep.  272. 


!4MaYnard  v.  Hecht,  151  U.  S.  328, 

38  L.  ed.  179,  14  Sup.  Ct.  Rep.  353; 
Chappell  V.  United  States,  160  U.  S. 
509,  40  L.  ed.  510,  16  Sup.  Ct  Rep. 
397;  Moran  v.  Hagerman,  151  U.  S. 
333,  38  L.  ed.  181,  14  Sup.  Ct.  Rep. 
354;  Davis  v.  Geissler,  162  U.  S.  291, 
40  L.  ed.  972,  16  Sup.  Ct.  Rep.  796; 
United  States  v.  Jahn,  155  U.  S.  112, 

39  L.  ed.  87,  15  Sup.  Ct.  Rep.  39. 
!5Shields    v.    Coleman,    157    U.    S. 

177,  39  L.  ed.  660,  15  Sup.  Ct.  Rep. 
570;  Arkansas  v.  Schlierholz,  179  U. 
S.  598,  45  L.  ed.  335,  21  Sup.  Ct. 
Rep.  229;  Van  Wagenon  v.  Sewall, 
160  U.  S.  373,  40  L.  ed.  460,  16  Sup. 
Ct.  Rep.  370;  Huntington  v.  Laidley, 
176  U.  S.  676,  44  L.  ed.  634,  20  Sup. 
Ct.  Rep.  526. 

!6Van  Wagene  v.  Sewall,  160  U.  S. 
S.  373,  40  L.  ed.  460,  16  Sup.  Ct.  Rep. 
370. 

!7The  Bayoune,  159  U.  S.  693,  40 
L.  ed.  306,  16  Sup.  Ct.  Rep.  185. 

!8McHenry  v.  Alford,  168  U.  S.  651. 
42  L.  ed.  614,  18  Sup.  Ct.  Rep.  242. 

!9The  Bavovme,  159  U.  S.  693,  40  L. 
ed.  306,  16  Sup.  Ct.  Rep.  185. 

20 Smith  V.  McKay,  161  U.  S.  357, 

40  L.  ed.  731,  16  Sup.  Ct.  Rep.  490. 


248 


Procedure]    APPEALS  FROM  CIRCLIT  AND  DISTRICT  COURTS.        §   42   [d] 

to  the  petition  for  the  writ  of  error,  or  the  assignment  of  error.i  Where 
other  than  jurisdictional  questions  are  also  involved  the  party  electing  to 
appeal  to  the  Supreme  Court  on  the  jurisdictional  question  must  do 
so  during  the  term. 2  But  if  there  is  nothing  else  involved,  an  appeal 
may  be  taken  any  time  within  two  years. s  It  is  said  that  the  certificate 
required  by  this  clause,  as  well  as  that  from  the  circuit  court  of  appeals,4 
is  governed  by  the  rules  as  to  the  form  of  certificates  of  division,  formerly 
allowed.  5 

[d]    Effect  of  electing  forum  of  appeal  on  jurisdictional  questions. 

Where  a  cause  contains  other  questions'?  besides  that  of  jurisdiction,  the 
party  aggrieved  by  the  circuit  or  district  court's  decision  has  an  election 
of  remedies.  He  may  go  to  the  Supreme  Court  on  the  jurisdictional  ques- 
tion alone,  as  already  shown;  or  he  may  go  to  the  circuit  court  of  appeals 
with  the  entire  case.  If  the  latter,  that  court  has  power  to  decide  the 
jurisdictional  questions  as  well  as  the  others  ;8  and  in  the  cases  made 
final  in  the  circuit  court  of  appeals,  the  jurisdictional  question  cannot 
be  further  reviewed9  unless  the  circuit  court  of  appeals  certify  it  for  in- 
structions,! 0  or  the  Supreme  Court  issue  certiorari.il  The  aggrieved  party 
cannot  have  two  appeals,  one  to  the  circuit  court  of  appeals  and  the 
other  to  the  Supreme  Court,  and  the  latter  will  be  dismissed  if  taken 
while  the  other  is  pending.  12  But  if  an  appeal  is  first  taken  to  the  Su- 
preme court  on  a  jurisdictional  or  constitutional  question,  the  circuit 
court  of  appeals  will  not  dismiss  a  subsequent  appeal  taken  to  it,  be- 
cause the  other  is  pending;  but  will  hold  it  in  abeyance  that  the  party 
may  not  lose  all  right  of  review  in  case  the  Supreme  Court  decide  that 
the  case   is   not   one  directly   appealable   and   dismiss   the   first   appeal.  1 4 

iMavnard  v.  Hecht,  151  U.  S.  324,  United  States  v.  Jahn,  155  U.  S.  109, 

38  L.  ed.  180,  14  Sup.  Ct.  Rep.  353.  39  L.  ed.   87,   15   Sup.   Ct.   Rep.   39; 

2Colvin  V.  Jacksonville.  158  U.  S.  Wirgman   v.   Persons,   126   Fed.   455, 

457,  39  L.  ed.  1053,  15  Sup.  Ct.  Rep.  62  C.  C.  A.  63;  Robinson- v.  Caldwell, 

866.  165  U.  S.  359,  41  L.  ed.  745.,  17  Sup. 

sExcelsior  W.  P.  Co.  v.  Pacific  B.  Ct.    Rep.    343.     Contra    see    United 

Co.  185  U.  S.  285,  46  L.  ed.  913,  22  States  v.  Lee  Yen  Tai,  113  Fed.  465, 

Sup.  Ct.  Rep.  681.  51   C.   C.  A.  299;   Sun  P.  Co.  v.  Ed- 

4 Ante,  §  40. [b]  wards,    121    Fed.    826,    58    C.  C.    A. 

^United  States  v.  Rider,  163  U.  S.  162;    Fisheries    Co.    v.    Lennen,    130 

139,  41  L.  ed.   101,  16  Sup.  Ct.  Rep.  Fed.    534,  65    C.  C.    A.    79;    Halpin 

983.  v.  American,  138  Fed.  548. 

7But  if  the  jurisdictional  question  sLoeb  v.  Columbia  Twp.  179  U.  S. 

is  the  only  oiie   he  must  go  to   the  478,  45  L.  ed.  285,  21   Sup.  Ct.  Rep. 

supreme  court.     Excelsior  P.  W.  Co.  174. 

V.  Pacific  B.  Co.  109  Fed.  497,  48  C.  lOAnte,   §  40.     In  the   second  cir- 

C.  A.  349.  cuit  this  course  is  pursued.     Sun  P. 

sKing  v.  McLean  Asvlum,  64  Fed.  Co.  v.  Edwards,  121  Fed.  826,  58  C. 

325,  12  C.  C.  A.  139;  Evans,  etc.  Co.  C.  A.  162. 

V.  McOaskill,  101  Fed.  058,  41  C.   C.  nAnte,  §  41. 

A.  577;    McLish   v.   Roff,   141    U.    S.  i2Columbus    C.    Co.   v.    Crane    Co. 

668,  35  L.  ed.  893,  12  Sup.   Ct.  Rep.  174  U.  S.  601.  43  L.  ed.  1102,  19  Sup. 

118;  MaATiard  v.  Hecht,  151  U.  S.  326,  Ct.  Rep.  721. 

38  L.  ed.  179,  14  Sup.  Ct.  Rep.  353;  i^See  Pullman's  P.  P.  Co.  v.  Cen- 

249 


§   42   [dd]  THE   SUPREME  COURT.  [Code  Fed. 

It  would  be  improper  for  it  to  hear  and  determine  such  appeal  while  the 
one  to  the  Supi'eme  Court  is  pending.is  Where  the  trial  court  decides 
in  favor  of  its  jurisdiction  and  then  against  plaintiff  on  the  merits,  he 
is  not  aggrieved  by  the  decision  on  the  jurisdictional  point  and  cannot 
because  it  is  in  the  record  take  an  appeal  to  the  Supreme  Court. 1 6 

[ddj     Election  of  forum  of  appeal  in  other  cases. 

There  are  also  other  cases  in  which  an  appellant  has  an  election  between 
the  circuit  coirt  of  appeals  and  the  Supreme  Court.  Cases  under  the  rev- 
enue and  patent  laws,  etc.,  are  appealable  to  the  circuit  court  of  appeals 
and  its  decision  is  final. is  But  if  in  such  cases  plaintiff's  statement  of 
his  case,  also  shows  a  constitutional  question  then  the  case  is  also  ap- 
pealable direct  to  the  Supreme  Court. 1 9  An  election  of  appeal  to  the  cir- 
cuit court  of  appeals  would  preclude  subsequent  appeal  direct  from  the 
circuit  to  the  Supreme  Court, 20  but  it  would  not  preclude  appeal  from  the 
circuit  court  of  appeals  to  the  Supreme  Court. 1  If  a  party  first  appeals 
to  the  Supreme  Court  on  a  constitutional  or  jurisdictional  question  he 
may  then  take  an  appeal  to  the  circuit  court  of  appeals  which  will  be  held 
in  abeyance  until  the  other  is  decided. 2  In  cases  other  than  of  conviction 
of  a  capital  crime  there  is  a  similar  right  of  election  where  a  constitu- 
tional question  is  involved.3 

[e]  Prize  cases. 

R.  S.  §  695  as  to  appeals  in  prize  cases  is  superseded  by  this  enact- 
ment. Appeal  lies  to  the  Supreme  Court  from  the  final  sentences  and 
decrees  in  prize  causes  regardless  of  the  amount  in  dispute  and  without 
any  certificate  of  the  district  judges  as  to  the  importance  of  the  particular 
case.  5 

[f]  Cases  of  conviction  of  a  capital  crime. 

As  enacted  in  1891  this  clause  read  "In  cases  of  conviction  of  a  capital 
of  otherwise  infamous  crime"  the  amendment  making  the  section  read  as 
above  was  enacted  by  law  of  1897.6  The  present  clause  means  cases  of 
conviction  of  crime  the  punishment  of  which  by  law  is,  or  may  be,  death. 

tral  T.  Co.  76  Fed.  401,  22  C.  C.  A.  192  U.  S.  407,  48  L.  ed.  499,  24  Sup. 

246;    Evans,    etc.    Co.   v.    MeCaskill,  Ct.  Rep.  376. 

101  Fed.  658,  41  C.  C.  A.  577.  20ibid. 

isUnion   &   P.   Bank   v.   Memphis,  ilbid. 

189  U.   S.  71,  47  L.  ed,  712,  23  Sup.  2See  Pullman's  P.  P.   Co.  v.   Cen- 

Ct.  Rep.  604.  tral  T.  Co.  76  Fed.  401,  22  C.  C.  A. 

leEvans    S.    B.    Co.    v.    MeCaskill,  240;    Evans,    etc.    Co.   v.    MeCaskill, 

101   Fed.   658,  41   C.  C.  A,  577.     See  101  Fed.  658,  41  C.  C.  A.  577. 

also   Field  v.  Barber  Ashp.    Co.   194  sMotes    v.   United    States,    178   U. 

U.  S.  620,  48  L.  ed.  1153,  24  Sup.  Ct.  S.   466,   44  L.   ed.    1153,  20   Sup.   Ct. 

Rep.    784;    United    States    v.    Jahn,  Rep.  993. 

155  U.  S.  109,  39  L.  ed.  87,  15  Sup.  5The   Paquete   Habana,    175   U.   S. 

Ct.  Rep.  39.  677,  44  L.  ed.  320,  20  Sup.  Ct.  Rop. 

isPost,  §  77.  290. 

isSpreckels  S.  R.  Co.  v,  McClain,  6 Act  Jan.  20,  1897,  c.  68. 

250 


Procedure]     APPEALS  PROM  CIRCUIT  AND  DISTRICT  COURTS.       §  42   [g] 

The  test  is  not  always  the  punishment  imposed,  but  the  punishment  which 
may  be  imposed.^  Hence  verdict  of  g-uilty  of  murder  is  no  less  a  con- 
viction of  a  capital  crime  where  qualified  with  the  proviso  "without  capi- 
tal punishment."?  Yet  the  law  does  not  specify  cases  of  indictment  for 
a  capital  crime  but  cases  of  conviction ;»  and  it  would  seem  that  one  con- 
victed of  murder  in  the  second  degree  the  extreme  punishment  for  which 
by  law  is  life  imprisonment  is  not  convicted  of  a  capital  crime.  Review 
in  criminal  cases  under  this  clause  must  always  be  by  error,  and  not  ap- 
peal.lo  Where  a  criminal  case  involves  the  construction  or  application 
of  the  Constitution  there  is  the  same  right  of  direct  appeal  to  the  Su- 
preme Court  under  the  next  clause  of  the  above  section,  as  in  other  cases. n 

[gj  Cases  involving  construction  or  application  of  Federal  Constitution. 
A  habeas  corpus  case  in  which  it  is  claimed  that  the  Constitution  for- 
bids deprivation  of  liberty  luider  a  mere  executive  department  order,  comes 
within  this  clause. is  So  also  does  a  case  involving  a  right  to  vote  for 
member  of  Congress,  as  that  is  a  right  derived  under  the  Constitution.! 4 
A  criminal  case  maj'  come  within  this  clause.is  A  question  of  the  privi- 
lege from  arrest  of  a  United  States  Senator  involves  the  construction  and 
application  of  the  Constitution.! 6  A  case  may  be  said  to  involve  the  con- 
struction or  application  of  the  Constitution  where  a  right,  title,  privilege 
or  immunity!"  is  claimed  under  that  instrument.  It  must  be  really  and 
substantially  involved.  A  definite  issue  in  respect  to  the  possession  of 
the  right  must  be  distinctly  deducible  from  the  record,  before  the  judgment 
of  the  court  below  can  be  reversed  on  the  ground  of  error  in  the  disposal  of 
such  a  claim  by  its  decision.! s     An  attack  upon  the  legality  of  contempt 

fin  re  Claasen.  140  U.  S.  205,  35  701;  and  see  McKane  v.  Durston,  153 

L.  ed.  411,  11  Sup.  Ct.  Rep.  737;  Ex  U.  S.  684,  38  L.  ed.  807.  14  Sup.  Ct. 

parte  Wilson,  114  U.  S.  426. 29  L.  ed.  Rep.   913;    Davis  v.   Burke,   97   Fed. 

92,  5  Sup.  Ct.  Rep.  935;  Fitzpatrick  501,  38  C.  C.  A.  299. 

v.  Umterl   States.   178  U.   S.   307,  44  !4Wilev  v.  Sinkler.  179  U.  S.  61,  45 

L.  ed.  1080,  20  Sup.  Ct.  Rep.  944.  L.  ed.  87,'  21  Sup.  Ct.  Rep.  17. 

SFit/patrick  v.  United  States,  178  isMotes  v.   United   States,   178   U. 

U.  S.  307,  44  L.  ed.  1080.  20  Sup.  Ct.  S.   466,   44  L.   ed.   1153,  20  Sup.    Ct. 

Rep.  944;  Goodshot  v.  United  States,  Rep.  993. 

179  U.  S.  88,  45  L.  ed.  101,  21   Sup.  leBurton  v.  United  States.  196   u. 

Ct.  Rep.  33.  S.    283,   49   L.   ed.    482,   25   Sup.    Ct. 

9The    difterence    is    ilhistrated    by  Rep.  243. 

Davis  V.  Thiit-^d  States,  107  Fed.  753,  iTQne  clause  of  the  provision  as  to 

46  C.  C.  A.  619.  error  to   State  courts   is   so   worded. 

loBucklin  v.  United  States.  159  U.  See  ante,  §  38. 

S.  681.  40  L.  ed.  304.  16  Sup.  Ct.  Rep.  isAnsbro  v.  United  States,  159  U. 

182;  Bessette  v.  W.  B.  Conkev  Co.  196  S.  698,  40  L.  ed.  310,  16  Sup.  Ct.  Rep. 

U.  S.  638,  49  L.  ed.  630,  25*  Sup.  Ct.  187;     Western    U.    T.    Co.    v.    Ann 

Rep.  793.  Arbor   Co.   178  U.  S.   239.  44  L.   ed. 

iiMotcs  v.  United   States,   178  U.  1052.  20  Sup.  Ct.  Rep.  867;  Muse  v. 

S.   460.   44   L.  ed.    1153,   20   Sup.   Ct.  Arlington    Hotel   Co.    168    U.    S.   435. 

Rep.    993.      So     on     habeas    corpus.  42  L.  ed.  531.  18  Sup.  Ct.  Rop.  109; 

Davis   V.  Burke,  97   Fed.   501,  38   C.  Filhiol  v.  Maurice,  185  U.  S.  110,  46 

C.  A.  299.  L.    ed.    827,   22    Sup.    Ct.   Rep.    560; 

!3Boske   V.   Comingore,    177   U.    S.  Lawpasas  v.  Bell,  ISO  U.   S.  276,  45 

465,  44  L.  ed.  849,  20  Sup.  Ct.  Rep.  L.  ed.  527,  21  Sup.  Ct.  Rep.  308. 

251 


§  42   [h]  THE    SUPREME    COURT.  [Code  Fed. 

proceedings,! 9  or  upon  the  validity  of  a  foreclosure  decree  collaterally  in- 
volved2o  for  want  of  jurisdiction  or  upon  the  mode  of  service  of  process,i 
does  not  raise  a  constitutional  question  in  the  sense  here  intended,  upon 
the  theory  that  there  is  a  denial  of  due  process  of  law.  The  fact  that  the 
court  below  directed  a  verict  does  not  raise  a  constitutional  question  of 
deprivation  of  right  of  jury  trial. 2  Where  a  case  is  tried  below  upon  the 
theory  that  its  correct  decision  depends  upon  a  question  of  chancery  prac- 
tice, it  cannot  be  claimed  that  there  is  a  right  of  direct  appeal  on  a  con- 
stitutional question. 3  A  question  whether  a  foreign  judgment  is  given  due 
force  and  effect  may  merely  present  a  question  of  construction  of  acts 
of  Congress,  and  not  of  the  constitutional  provision. •*  A  plea  seeking  the 
dismissal  of  a  suit  for  collusive  joinder  of  parties,  does  not  raise  a  question 
under  the  Constitution ;  5  nor  does  a  contention  as  to  legality  of  service 
upon  the  alleged  agent  of  a  foreign  corporation. 6  And  where  plaintiff  in 
ejectment  declares  that  he  will  rely  on  a  treaty  with  France  and  the  Fifth 
Amendment,  but  does  not  assert  any  right,  title,  privilige  or  immunity  de- 
rived from  either,  there  is  no  direct  right  of  appeal. 7  It  makes  no  differ- 
ence whether  the  right  is  sustained  or  denied;  a  right  of  direct  appeal 
exists  in  either  case  in  favor  of  the  party  aggrieved  by  the  decision  be- 
low upon  that  point  ;S  though  not  in  favor  of  one  aggrieved  by  the  de- 
cision of  other  issues  but  who  prevailed  below  upon  the  constitutional 
question. 9  The  judge  of  the  lower  court  is  not  authorized  to  certify  the 
existence  of  a  constitutional  question  in  the  record,  and  such  certificate  is 
of  no  weight.  10 

[h]     Cases  involving  constitutionality  of  Federal  law  or  validity  or  con- 
struction of  treaty. 
Where  the  validity  of  a  Federal  law  is  drawn  in  question  direct  appeal 
lies  to  the  Supreme  Court.  12    a  suit  to  establish  a  land  claim  under  Spanish 

i9In  re  Lennon,  150  U.  S.  393,  37  193  U.  S.  4(i0,  48  L.  ed.  749,  24  Sup. 

L.  ed.  1120,  14  Sup.  Ct.  Rep.  123.  Ct.  Rep.  489. 

20 Carey  v.   Houston   &   T.    C.   Ry.  '^Muse  v.  Arlington  H.  Co.  1G8  U. 

150  U.  S.  170,  37  L.  ed.  1041,  14  Sup.  S.  435,  42  L.  ed.  531,  18  Sup.  Ct.  Rep. 

Ct.  Rep.  63.  109. 

iCosmopolitan    M.    Co.    v.    Walsh,  ^Holder  v.  Aultman,  169  U.  S.  88. 

193  U.  S.  460,  48  L.  ed.  749,  24  Sup.  42  L.  ed.  669,  18  Sup.  Ct.  Rep.  269; 

Ct.   Rep.   489.     But  compare  Fayer-  Loeb  v.  Columbia  T.  Trustees,  179  U. 

weather  v.  Ritch,  195  b.  S.  276,  49  L.  S.  478,  45  L.  ed.  285,  21  Sup.  Ct.  Rep. 

ed.  193,  25  Sup.  Ct.  Rep.  58.  174. 

2Treat  Mfg.   Co.  v.   Standard,  etc.  ^Field  v.  Barber  Asphalt  Co.   194 

Co.  157  U.  S.  674,  39  L.  ed.  854,  15  U.  S.  620,  48  L.  ed.  1153,  24  Sup.  Ct. 

Sup.  Ct.  Rep.  718.  Rep.    784;    Anglo-American,   etc.    Co. 

sCornell  v.  Green,  163  U.  S.  79,  41  ^'-  ^"^""'^  ^^-  1^1  U.  S.  376,  48  L.  ed. 

L.  ed.  76,  16  Sup.  Ct.  Rep.  969.  228,  24  Sup.  Ct.  Rep.  92. 

4Merritt  v.  American  S.  B.  Co.  75    lo^nTTn'^^  t      .^°ooJ' oY « '^' 
Fed.  813,  21  C.  C.  A.  525.  J.f  ^-  \^^^'  ^8  L.  ed.  228,  24  Sup. 

TT  '^'^^«^9-T^'''I'^«.''n  ?«"q"''    n?       I'^Nishimura  Ekin  v.  United  States. 
U.  S.  556,  42  L.  ed.  850,  18  Sup.  Ct.    149  u.  S.  651,  658,  659,  35  L.  ed.  1146. 

^^P-  *1^-  12  Sup.    Ct.    Rep.    336;      Horner    v. 

eCosmopohtan    M.    Co.    v.    Walsh,     United  States,   143  U.  S.  576,  36  L. 

252 


Procedure]    APPEALS   FROM  CIRCUIT  AND   DISTRICT  COURTS.        §  42   [i] 

treaty  is  within  this  clause.is  A  habeas  corpus  proceeding  wliich  de- 
pends, at  least  in  part,  upon  the  meaning  of  a  treaty,  is  reviewable  under 
this  provision  even  although  also  involving  the  construction  of  the  act  of 
Congiess  carrying  the  treaty  into  effect. i*  But  some  right,  title  privi- 
lege or  immunity  must  be  set  up  and  claimed  before  its  construction  and 
validity  can  be  deemed  involved.is  Where  a  suit  respecting  allotment  of 
Indian  lands  involves  merely  the  construction  of  a  statute  and  no  right  or 
title  under  a  treaty  is  claimed,  it  is  not  within  this  clause  even  although 
incidently  and  remotely  a  treaty  was  involved.  1 6  So  a  question  whether  in 
fact  petitioner  was  seeking  an  asylum  in  the  United  States  has  been  held 
to  involve  no  question  of  treaty  construction.! 7  An  admiralty  case  involv- 
ing the  meaning  of  "foreign  waters"  in  R.  S.  §  4370,  does  not  involve  the 
construction  of  a  treaty  although  the  waters  in  question  were  straits  as  to 
jurisdiction  over  which  Great  Britain  and  the  United  States  had  a  treaty.is 

[i]  Cases  in  which  State  law  or  constitution  claimed  to  violate  Federal 
Constitution. 
In  such  cases  a  direct  appeal  from  circuit  to  Supreme  Court  is  allow- 
able.i9  A  city  ordinance  is  a  State  law  within  this  clause; 20  and  direct 
appeal  lies  where  an  ordinance  or  statute  is  claimed  to  impair  the  obligation 
of  a  contract;!  or  to  violate  the  Fourteenth  Amendment.2  Direct  appeal 
lies  under  this  section  as  much  where  the  State  law  is  declared  invalid  as 
in  cases  where  it  is  upheld,  s  But  the  right  of  appeal  is  in  the  party  ag- 
grieved by  the  decision,  who,  in  the  former  case,  is  the  party  relying  on 
the  State  law,  and  in  the  latter,  the  party  raising  the  Federal  claim.  The 
party  in  whose  favor  the  lower  court  ruled  on  the  constitutional  question 
cannot  appeal  directly  from  a  decision  against  him  on  the  merits  because 
the  record  contains  this  decision  of  the  constitutional  question  in  his 
favor.  4 


ed.  266.  12  Sup.  Ct.  Rep.  522:  Carey  20Penn  M.  L.   Ins.   Co.  v.  Austin. 

V.  Houston,  etc.  Rv.   150  U.   S.   179,  168  U.  S.  695,  42  L.  ed.  626,  18  Sup. 

37  L.  ed.  1041,  14  Sup.  Ct.  Rep.  63.  Ct.  Rep.   223;   Macon   v.   Georgia   P. 

!3Mitchell   V.    Furman,    180   U.    S.  Co.  60  Fed.  781,  9  C.  C.  A.  262. 

428,  45  L.  ed.  608.  21   Sup.  Ct.  Rep.  iPenn  M.  L.  Ins.  Co.  v.  Austin,  168 

430.  U.  S.  694,  42  L.  ed.  626,  18  Sup,  Ct. 

i^Ornelas  v.  Ruiz,   161   U.   S.  502,  Rep.    223;    Holder   v.    Auitman,    169 

40  L.  ed.  787,  16  Sup.  Ct.  Rep.  689;  U.  S.  88,  42  L.  ed.  669,  18  Sup.  Ct. 

Pettit  V.  Walshe,  194  U.  S.  205,  48  Rep.  269:  Indianapolis  v.  Central  T. 

L.  ed.  938,  24  Sup.  Ct.  Rep.  657.  Co.  83  Fed.  529,  27  C.  C.  A.  580. 

isMuse   v.    Arlington   H.    Co.    168  2Field    v.    Barber   Asphalt  Co.  194 

IT.  S.  430,  42  L.  ed.  531,  18  Sup.  Ct.  U.  S.  620,  48  L.  ed.  1142,  24  Sup.  Ct. 

Rep.  109.  Rep.  784;  Hastings  v.  Ames,  68  Fea. 

!6Sloan  V.   United   States,   193  U.  726,  15  C.  C.  A.  628. 

S.  620,  48  L.  ed.  817,  24  Sup.  Ct.  Rep.  sLoeb  v.  Columbia  Twp.  T.  179  U. 

570.  S.  472,  477,  45  L.  ed.  280,  21  Sup.  Ct. 

i7In  re  Newman,  79  Fed.  615.  Rep.    174;    Connolly   v.   Union   S.   P. 

isThe  Pilot,  53  Fed.  11,  3  C.  C.  A.  Co.  184  U.  S.  544,  46  L.  ed.  679,  22 

392.  Sup.  Ct.  Rep.  431. 

isFidelity  M.  L.  Assn.  v.  Mettler,  4 Anglo-American   P.   Co.   v.   Davis 

185  U.  S.  .315,  46  L.  ed.  922,  22  Sup.  Co.  19i  U.  S.  376,  48  L.  ed.  228,  24 

Ct.  Rep.  662.  Sup.  Ct.  Rep.  93. 

253 


§  42  [j]  THE   SUPREME   COURT.  [Code   Fed. 

[j]     Scope  of  review  under  this  section. 

Where  the  appeal  is  by  virtue  of  a  jurisdictional  question,  only  that 
question  is  certified  and  the  review  is  confined  to  it,  and  will  not  extend 
to  any  question  on  the  merits. 6  Though  where  a  habeas  corpus  case  is  ap- 
pealed from  the  circuit  court  on  jurisdictional  grounds,  the  Supreme  Court 
will  proceed  "to  dispose  of  the  party  as  law  and  justice  require.'"?  Where 
a  case  involving  a  constitutional  question  is  taken  up  by  direct  appeal  un- 
der other  clauses  of  the  above  section,  the  Supreme  Court  acquires  juris- 
diction of  the  entire   cases    including  any   jurisdictional   question.9 

§  43.  Anti-trust  and  commerce  suits  by  United  States  appeal- 
able direct  from  circuit  to  Supreme  Court. 
In  every  suit  in  equit}^  pending  or  hereafter  brought  in  any  cir- 
cuit court  of  the  United  States  under  any  of  said  acts  [i.  e.,  the 
commerce  act  of  1887  or  the  anti-trust  act  of  1890,  or  any  acts 
having  a  like  purpose  that  hereafter  may  be  enacted],  wherein  the 
United  States  is  complainant,  including  cases  submitted  but  not  yet 
decided,  an  appeal  from  the  final  decree  of  the  circuit  court  will  lie 
only  to  the  Supreme  Court  and  must  be  taken  within  sixty  days 
from  the  entry  thereof. 

Part  of  §  2,  Act  Feb.  11,  1903,  c.  544,  32  Stat.  S23,  U.  S.  Comp.  Stat. 
1905,  p.  623. 

The  rest  of  the  section  contained  a  proviso  applying  to  appeals  then  pend- 
ing and  was  therefore  temporary  in  its  nature.  The  act  also  provides  for 
certifying  such  cases  to  the  Supreme  Court  on  division  of  opinion.i2  The 
above  provision  is  expressly  made  applicable  to  certain  other  commerce 
suits.  13 

§  44.  —  such  cases  to  be  certified  to  Supreme  Court  on  division  of 
opinion. 

In  the  eA'ent  tlie  judges  sitting  in  such  case^^  [i.  e.  a  suit  in  equity 
by  the  United  States  in  the  circuit  court  under  anti-trust  or  com- 
merce laws  of  1887  or  1890  or  similar  laws  hereafter  enacted]  shall 

eSchunk  v.  Moline  M.  &  S.  Co.  147  143.  46  L.  ed.  120.  22  Sup.  Ot.  Rep.  72. 
U.  S.  500,  37  L.  ed.  256.  13  Sup.  Ct.        sHomer   v.    United  States.  14.S  U. 

Rep.  416;  The  William  M.  Hoag,  168  S.  576.  36  L.  ed.  266,  12  Sup.  Ct.  Rep. 

U.  S.  444,  42  L.  ed.  537,  18  Sup.  Ct.  522;  Chappell  v.  U.  S.  160  U.  S.  509, 

Rep.    114;    The   Resolute,    108   U.    S.  40  L.  eti.  510,  16  Sup.  Ct.  Rep.  397; 

440,  42  L.  ed.  533,  18  Sup.  Ct.  Rep.  Field  v.  Barber  Ashphalt  Co.  194  U. 

112;   Greelev  v.  Lowe,  155  U.   S.   58,  S.   620,   48   L.   ed.    1153,  24   Sup.   Ct. 

39   L.   ed.   69,   r5   Sup.   Ct.  Rep.   24;  Rep.  784. 

Felts  V.   Murpbv,  201   U.  S.   123.  50        sScott  v.  Donald,  165  U.  S.  71,  41 

L.  ed.  089,  26  Sup.  Ct.  Rep.  366;    Hale  L.  ed.  632,  17  Sup.  Ct.  Rep.  265. 
V.    Henkel.    201    U.    S.    43,   50   L.    ed.        i2Post,  §  44. 
652,  26  Sup.  Ct.  Rep.  370.  isPost,   §§  62  &  64. 

TStorti  V.  Massachusetts,  183  U.  S.         isSee   ante,    §   43. 

254 


i 


Frocednre]  DISTRICT   OF    COLUMBIA  APPEALS.  §  45   [a] 

be  divided  in  opinion,  the  case  shall  be  certified  to  the  Supreme 
Court  for  review  in  like  maimer  as  if  taken  there  by  appeal  as  here- 
inafter provided  [i.  e.  by  appeal  to  Supreme  Court  within  sixty 
days.] 

Part  of  §  1  Act  Feb.  11,  1903,  c.  544,  32  Stat.  823,  U.  S.  Comp.  Stat. 
1905,  p.  623. 

The  above  section  is  given  in  full  elsewhere. 1 6  It  is  made  applicable  to 
suits  by  the  Commission. 1 7  The  act  from  which  it  was  taken  was  passed 
to  expedite  the  hearing  and  determination  of  equity  suits  under  the  anti- 
trust and  commerce  laws.  It  provides  for  direct  appeal  from  circuit  to 
Supreme  Court.is 

§  45.     Appeal  from  CoTirt  of  Appeals  of  District  of  Columbia. 

Any  final  judgment  or  decree i^*^^  of  the  court  of  appeals  [of  the 
District  of  Columbia]  may  be  re-examined  and  affirmed,  reversed  or 
modified  by  the  Supreme  Court  of  the  United  States,  upon  writ  of 
error  or  appeal,"^^^  in  all  cases  in  which  the  matter  in  dispute,  ex- 
clusive of  costs,  shall  exceed  the  sum  of  five  thousand  dollars,  in  the 
same  manner,  and  under  the  same  regulations,  as  existed  in  cases 
of  writs  of  error  on  judgments  or  appeals  from  decrees  rendered  in 
the  supreme  court  of  the  District  of  Columbia  on  February  9, 
1893,^^^  and  also  in  cases,  without  regard  to  the  sum  or  value  of  the 
matter  in  dispute,  wherein  is  involved  the  validity  of  any  patent 
or  copyright,  or  in  which  is  dra^^Ti  in  question  the  validity  of  a 
treaty  or  statute  of,  or  an  authority  exercised  under,  the  United 
States.t<^] 

Code  Dist.  Col.  §  233,  31  Stat.  1227,  c.  854. 

[a]    Prior  laws  superseded  and  cross-references. 

R.  S.  §§  705  and  706,  provided  for  review  of  decisions  of  the  supreme 
court  of  the  District  where  the  value  exceeded  $1,000,  in  the  same  cases  aa 
in  the  Federal  circuit  courts.  These  provisions  were  superseded  by  an  act 
of  18851  raising  the  jurisdictional  limit  to  $5,000  but  permitting  an  ap- 
peal regardless  of  amount  in  controversy  where  a  patent  or  copyright  or  the 
validity  of  a  Federal  treaty,  statute,  or  authority  was  involved.  The 
act  of  1885  was  superseded  in  1893,2  when  the  court  of  appeals  of  the 
District  was  created.  The  Code  of  the  District  adopted  March  3,  1901, 
carried  forward  §  8  of  the  act  of  1893,  which  was  the  same  as  §  233  of 
the  Code,  supra,  except  for  slight  changes  of  phraseology. 3 

isPost,  S  1368.  2Act  Feb.  9,  1893.  c.  74  §§  1-8. 

iTPost,  §  62.  sSinclair  v.  District  of  Col.  192  U. 

18 Ante,  §  43.  S.  18,  48  L.  ed.  324,  24  Sup.  Ct.  Rep. 

»Act  Mar.  3,  1885,  c.  355.  212. 

255 


S  45   [b]  THE   SUPREME   COURT.  [Code   Fed. 

|.bj     Necessity  for  final  judgment — mode  of  review. 

The  judgment  below  must  be  final  to  be  reviewable.5  A  decree  making 
final  disposition  of  a  cause  and  leaving  to  the  lower  court  the  mere  minis- 
terial duty  of  entering  an  injunction  in  compliance  with  the  mandate,  is 
final.6  But  a  decree  is  not  final  when  a  cause  is  sent  back  for  further  pro- 
ceedings,7  nor  is  a  decree  remanding  a  cause,  final. 8  Where  the  proceeding 
to  be  reviewed  is  legal  and  not  equitable  in  character,  error  and  not  ap- 
peal is  the  proper  form  of  review. 9 

[c]     Jurisdictional  amount  as  determining  right  of  review. 

The  effect  of  the  provision  as  to  value  in  dispute  is  to  limit  the  class 
of  cases  appealable,  except  where  a  Federal  question  is  involved,  n  to  cases 
in  which  the  matter  in  dispute  has  a  money  value  or  is  some  right  capable 
of  reduction  to  an  ascertained  value.i2  A  right  involved,  such  as  a  right 
to  freedom,  may  in  fact,  be  priceless,  yet  cases  involving  merely  that,  do 
not  involve  a  matter  in  dispute  having  pecuniary  value.  Hence  habeas 
corpus  cases  have  often  been  declared  outside  the  scope  of  appellate  pow- 
ers where  measured  by  a  value  in  dispute. is  So  also  a  right  to  the  custody 
of  a  child  is  not  capable  of  pecuniary  estimate,  i*  Habeas  corpus  and  crimi- 
nal cases  are  for  this  reason  not  appealable  from  the  court  of  appeals 
of  the  District;  15  even  though  a  fine  is  imposed  which  in  a  sense  is  a 
value  in  dispute.is  In  an  early  case  the  dispute  was  between  an  alleged 
slave  claiming  his  freedom  and  an  alleged  master;  but  there  the  right  to 
freedom  involved  also  the  correlative  property  right  of  an  owner  in  his 
slave,  and  the  case  was  accordingly  held  to  involve  a  matter  capable  of 

BHume  V.  Bowie,  148  U.  S.  252,  L.  ed.  70;  Kurtz  v.  Moffitt,  115  U. 
37  L.  ed.  438,  13  Sup.  Ct.  Rep.582.         S.  495.  29  L.  ed.  459,  6  Sup.  Ct.  Rep. 

eChesapeake,  etc.  T.  Co.  v.  Man-  150;  Pratt  v.  Fitzhugh,  1  Black,  271, 
ninff,  186  U.  S.  241,  46  L.  ed.  1144,  17  L.  ed.  206;  Cross  v.  Burke,  146 
22  Sup.  Ct.  Rep.  881.  U.  S.  88,  36  L.  ed.  896,  13  Sup.  Ct. 

TClarke  v.  Roller.  199  U.  S.  541,  50    Rep.  22. 
L.  ed.  300,  26  Sup.  Ct.  Rep.  141.  i4Perrine  v.  Slack,  164  U.  S.  452, 

8 Warner  v.  Gravson,  200  U.  S.  257,  41  L.  ed.  510,  17  Sup.  Ct.  Rep.  79; 
50  L.  ed.  470,  26"  Sup.  Ct.  Rep.  240.    DeKrafft  v.  Barney,  2  Black,  704,  17 

sMetropolitan    R.    R.    v.    MacFar-    L.  ed.  350. 
land,  195  U.  S.  322,  49  L.  ed.  219,  25        is  In  re  Schneider,   148  U.   S.   162, 
Sup.  Ct.  Rep.  28.  37  L.  ed.  404,  13  Sup.  Ct.  Rep.  572; 

iiThen  the  value  in  dispute  is  im-  Chapman  v.  United  States,  164  U.  S. 
material.  Parsons  v.  District  of  Col.  440,  41  L.  ed.  504,  17  Sup.  Ct.  Rep. 
170  U.  S.  49,  42  L.  ed.  943,  18  Sup.  76;  Cross  v.  Burke,  146  U.  S.  84,  36 
Ct.  Rep.  521.  L.  ed.  896.  13  Sup.  Ct.  Rep.  22;  In 

i2Cross  V.  Burke,  146  U.  S.  88,  36  re  Chapman,  156  U.  S.  215,  39  L.  ed. 
L.  ed.  896,  13  Sup.  Ct.  Rep.  22;  401,  15  Sup.  Ct.  Rep.  3-31:  In  re 
Washington,  etc.  R.  R.  v.  District  of  Belt,  159  U.  S.  100,  40  L.  ed.  88,  15 
Col.  146  U.  S.  231.  36  L.  ed.  951,  13  Sup.  Ct.  Rep.  987;  Sinclair  v.  Dis- 
Sup.  Ct.  Rep.  64;  South  Carolina  v.  trict  of  Columbia,  192  U.  S.  18,  48 
Seymour.  153  U.  S.  357,  38  L.  ed.  L.  ed.  324,  24  Sup.  Ct.  Rep.  212. 
742,  14  Sup.  Ct.  Rep.  871;  Holzen-  leSinclair  v.  District  of  Col.  192 
dorf  V.  Hav,  194  U.  S.  373,  48  L.  ed.  U.  S.  18,  20,  48  L.  ed.  324,  24  Sup. 
1025,  24  Sup.  Ct.  Rep.  681.  Ct.  Rep.  212;  Unitea  States  v.  Moore, 

isEarry  v.  Mercein,  5  How.  103,12   3  Oraneh.  159,  2  L.  ed.  397. 

256 


Procedure]  APPEAL    FROM   COURT    OF    APPEALS.  §   45   [d] 

pecuniary  estimate.i"  The  fact  that  an  invention  has  a  pecuniary  value 
does  not  establish  that  there  is  a  matter  of  pecuniary  value  in  dispute 
where  that  matter  is  the  question  whether  the  invention  is  patentable.is 
The  matter  in  dispute  must  have  more  than  a  conjectural  value  and  must 
represent  a  justiciable  demand.  Hence"  a  right  of  one  claiming  damages 
from  a  foreign  nation  to  have  the  State  Department  make  appeal  to  the 
grace  of  a  foreign  country  for  a  settlement  is  of  merely  conjectural  value 
and  a  political  rather  than  legal  demand. is  A  case  involving  a  right  to 
have  a  trademark  registered,  as  distinguished  from  a  right  to  the  trade- 
mark, is  not  one  having  pecuniary  value  in  dispute,  at  least  in  the  ab- 
sence of  any  evidence  of  value  in  the  record. 20  A  bill  praying  conveyance 
of  land  worth  $300,  or  rescission  of  a  contract  for  purchase  of  larger  tract 
for  $6,000  presents  the  necessary  amount  in  controversy  upon  the  alterna- 
tive prayer.i 

In  estimating  the  value  in  dispute,  the  collateral  effect  of  the  judgment  in 
determining  other  suits  or  the  validity  or  invalidity  of  other  contracts, 
obligations  or  conveyances  cannot  be  considered,  but  only  the  direct  effect  of 
the  judgment  upon  the  matter  directly  involved. 2 

[d]  Cases  involving  validity  of  patent,  copyright,  Federal  treaty,  statute 
or  authority. 
This  clause  has  been  in  the  law  governing  appeals  from  the  District 
without  substantial  change,  since  the  act  of  1885.4  There  are  similar  pro- 
visions in  other  statutes  respecting  appeal. 5  A  suit  to  obtain  the  allow- 
ance of  a  patent  is  not  one  involving  its  validity  and  appealable  under 
this  clause. «  Whenever  the  power  to  enact  a  statute  as  it  is  or  as  it  is  con- 
strued, is  fairly  open  to  denial  and  is  denied,  the  validity  of  the  statute  is 
drawn  in  question.'  A  case  involving  the  validity  of  a  Federal  statute  as  to 
jurisdiction  of  justices  of  the  peace  is  appealable  under  this  clause. «  But  a 
decision  that  a  Federal  statute  does  or  does  not  repeal  a  legislative  as- 
sembly's tax  is  one  involving  construction  and  not  validity.s  A  decision  as 
to  the  extent  of  a  railroad's  power  under  a  statute  does  not  question  the 
statute's  validity;  10    nor  does  a  decision  as  to  the  District's  liability  for 

iTLee  V.  Lee,  8  Pet.  48,  8  L.  ed.  sQn  error  to  State  courts,  see  ante, 
860.  §  38.    On  appeal  from  Territories  see 

'sDurham  v.   Seymour,   161   U.   S.    post,   §   47. 
2.39,  40  L.  ed.  682,  16  Sup*.  Ct.  Rep.        eDurham   v.    Seymour,    161    U.    S. 
452.  238,  40  L.  ed.  683,  16  Sup.  Ct.  Rep. 

isHolzendorf  v.  Hay,  194  U.  S.  376,    454. 
48  L.  ed.  1025,  24  Sup.  Ct.  Rep.  681.        7Baltimore,  etc.  R.  R.  v.  Hopkins, 

2  0South  Carolina  v.  Seymour,  153    130  U.  S.  224,  32  L.  ed.  908,  9  Sup. 
U.  S.  358,  38  L.  ed.  742,  14  Sup.  Ct.    Ct.  Rep.  503. 
Rep.  871.  sCapital  T.   Co.  v.  Hof.  174  U.  S. 

iShappiro  v.  Goldberg,  192  U.  S.  4,  43  L.  ed.  873,  19  Sup.  Ct.  Rep.  580. 
240,  48  L.  ed.  419,  24  Sup.  Ct.  Rep.  nVashington,  etc.  R.  R.  v.  District 
259.  of  Col.  146  U.  S.  231,  36  L.  ed.  951, 

nVashington,  etc.  R.  R.  v.  District     13  Sup.  Ct.  Rep.  64. 
of  Col.  146  U.  S.  232,  36  L.  ed,  953,        lORaltimore,  etc.  R.  R.  v.  Hopkins, 
13  Sup.  Ct.  Rep.  64.  130  U.  S.  226,  32  L.  ed.  908,  9  Sup. 

< Supra,  note,  [a]  Ct.   Rep.   503. 

Fed.  Proc— 17.  257 


§  46  SUPREME     COURT    JURISDICTION.  [Code   Fed. 

defective  streets  under  the  street  laws.n  A  suit  attacking  the  validity  of 
a  jjatent  ofRce  rule  of  procedure  involves  the  validity  of  a  Federal  authori- 
ty.i2  But  an  error  of  the  comptroller  in  allowing  fees  does  not  involve 
the  validity  of  his  authority.is  It  is  immaterial  to  the  right  of  appeal 
whether  the  decision  below  was  for  or  against  the  validity  of  the  patent, 
statute  or  authority.!* 

§  46.     Certiorari  from   Supreme   Court   to    court   of   appeals   of 
District  of  Columbia. 

In  any  case  heretofore  made  final  in  the  court  of  appeals  of  the 
District  of  Columbia  it  shall  be  competent  for  the  Supreme  Court 
to  require,  by  certiorari  or  otherwise,  any  such  case  to  be  certified  to 
the  Supreme  Court  for  its  review  and  determination,  with  the  same 
])ower  and  authority  in  the  case  as  if  it  had  been  carried  by  appeal 
or  writ  of  error  to  the  Supreme  Court. 
Dist.  Col.  Code,  §  234. 

This  provision  was  enacted  in  1897i  and  carried  forward  into  §  234  of 
the  District  Code.  The  provision  as  to  certiorari  from  the  circuit  court 
of  appeals  will  be  found  elsewhere. 2  In  a  number  of  cases  certiorari  has 
issued  under  this   provision. 3 

§  47.     Appeal  in  cases  relating  to  highways  in  District  of  Co- 
lumbia. 

From  any  judgment  or  order  of  said  court  of  appeals  [of  the 
District  of  Columbia]  involving  any  question  as  to  the  constitution- 
ality of  this  act  [an  act  of  Mar.  2,  1893,  to  provide  a  permanent 
system  of  highways  in  that  part  of  the  District  of  Columbia  lying 
outside  of  cities]  or  of  any  part  thereof,  any  party  aggrieved  may, 
within  thirty  days  after  such  judgment  or  order  shall  be  entered, 
appeal  to  the  Supreme  Court  of  the  United  States.  Said  court 
shall  determine  only  the  questions  of  constitutionality  involved  in 
the  case,  and  shall  have  power  to  make  such  special  rules  and 

iiDistrict  of  Col.  v.   Gannon,   130    appeal  from  the  circuit  court.     Ante, 
U.  S.  229,  32  L.  ed.  922,  9  Sup.  Ct.    §  42.[g]-[i] 
Rep.  508.  lAct    IVLarch     3,     1897,  c.    390,   29 

i2Steinmetz  v.  Allen,  192  U.  S.  55G,  Stat.  692,  U.  S.  Comp.  Stat.  1901,  p. 
48  L.  ed.  555,  24  Sup.  Ct.  Rep.  416.    574. 

2Ante    §  41 

«  'JS"^!  ^^'f  7nn^^«"'^'nl^^^,^•  ^See  list  of'cases  in  171  U.  S.  686, 
S   285,  34  L.  ed.  700,  11  Sup.  Ct.  Rep.    ^^  ^^     Yeager  v.  United  States,  178 

^^*-  U.  S.  615,  44  L.  ed.  r215,  20  Sup.  Ct. 

14 Baltimore,  etc.  R.  R.  v.  Hopkins,  Rep.  1031  ;  Hartford  F.  I.  Co.  v.  Wil- 

130  U.  S.  222,  32  L.  ed.  908,  9  Sup.  son,  181  U.  S.  617,  45  L.  ed.  1030,  22 

Ct.  Rep.   503.     The  same  is  true  on  Sup.  Ct.  Rep.  945. 

253 


Procedure]  ON    APPEAL    FROM    TERRITORIES.  §   48    [a] 

regulations  applying  to  appeals  under  this  act  as  may  be  proper 
to  bring  such  cases  to  a  speedy  hearing  and  determination. 
Part  of  act  Jan.  21,  1896,  c.  5,  29  Stat.  3. 

§  48.     From  supreme  courts  of  Arizona  and  New  Mexico. 

Under  the  act  of  1885,  still  partially  in  force,  "no  appeal  or 
writ  of  error  shall  ...  be  allowed  from  any  judgment  or 
decree  in  any  suit  at  law  or  in  equity  .  .  •  in  the  supreme 
dourt  of  any  of  the  territories  of  the  United  States,  unless  tlie 
matter  in  dispute,  exclusive  of  costs,  shall  exceed  the  sum  of  five 
thousand  dollars."f^^'t*^^"  This  restriction  does  not  apply,  however, 
"to  any  case  wherein  is  involved  the  validity  of  any  patent  or  copy- 
right, or  in  which  is  drawn  in  question  the  validity  of  a  treaty  or 
statute  of  or  an  authority  exercised  under  the  United  States ;  .  .  . 
in  such  cases  an  appeal  or  writ  of  error  may  be  brought  without 
regard  to  the  sum  or  value  in  dispute." ^"^^^  Since  1891  the  above 
provisions  of  the  act  of  1885  have  been  modified  by  the  provision  for 
appeal  to  the  circuit  court  of  appeals,  and  not  to  the  Supreme  Court, 
in  cases  where  "the  jurisdiction  is  dependent  entirely  upon  the 
opposite  parties  to  the  suit  or  controversy  being  aliens  and  citizeus 
of  the  United  States,  or  citizens  of  different  States ;  also  in  all  cases 
arising  under  the  patent  laws,  under  the  revenue  laws,  and  under 
the  criminal  laws  [other  than  capital  cases] ^  and  in  admiralty 
cases."i<>  In  such  cases  and  perhaps  in  certain  others,  the  appeal 
is  to  the  circuit  court  of  appeals  and  its  decision  is  final.  In  capital 
cases  the  decision  of  the  territorial  supreme  court  is  nowhere  re- 
viewable, except  that,  upon  habeas  corpus  proceedings  in  such  a 
case,  the  decision  of  either  the  territorial  district  or  supreme  court 
is  reviewable  on  appeal  or  error  in  the  Supreme  Court.^^^  These 
provisions  now  apply  only  to  Arizona  and  ISTcav  Mexico. 
Author's  section. 

[a]     Existing  and  prior  provisions  and  cross-references. 

R.  S.  §  702,  provided  for  review  by  the  Supreme  Court  of  all  cases  where 
the  value  in  dispute  exceeded  $1,000.  An  act  of  1885  contained  the  pro- 
visions quoted  above,  raising  the  requisite  value  to  $5,000  but  permitting 
review  regardless  of  value  in  cases  involving  the  validity  of  a  patent  or 
copyright,    Federal    treaty,    statute   or    authority.      The    circuit    court    of 

"Act   March    3,   1S85.   c.   355,   §   2,        sPost,  §  81. 
23  Stat.  443.  U.  S.  Comp.  Stat.  1001,        lOAnte.  §  42,  post.  §  81. 
p.  572. 

259 


§   48   [b]  SUPREME    COURT    JURISDICTION.  [Code    Fed. 

appeals  act  of  1891  gave  that  court  appellate  jurisdiction  over  Territorial 
supreme  courts  in  the  class  of  cases  in  which  its  decisions  upon  appeal 
from  the  circuit  and  district  courts,  are  made  final;  12  and  since  1891  sueli 
cases,  as  enumerated  above,  are  not  reviewable  in  the  Supreme  Court.i3 
The  law  governing  appeals  from  the  territories  must  therefore  be  sought 
in  the  statutes  of  1885  and  1891,  supra.14  One  effect  of  the  legislation  of 
(^ongress  on  this  subject  is  to  make  criminal  cases  other  than  capital  ap- 
pealable from  the  territorial  supreme  courts  to  the  circuit  court  of  ap- 
peals; while  capital  cases  are  appealable  neither  to  that  tribunal  nor  to 
the  Supreme  Court  of  the  United  States.  As  Congress  has  legislated  specifi- 
cally regarding  the  riguo  of  review  in  the  Supreme  Court,  of  cases  from 
Oklahoma,  Philippines,  Hawaii,  Porto  Rico,  Alaska  and  Indian  Territory,!  5 
the  above  general  enactments  as  to  appeals  from  the  territories  apply  only 
to  Arizona  and  New  Mexico. 

R.  S.  §  1909,  provided  that  "writ  of  error  or  appeal  shall  be  allowed  to 
the  Supreme  Court  of  the  United  States  from  the  decisions  of  the  su- 
preme courts  created  by  this  title  [i.  e.  the  organized  Territories,  including 
Arizona  and  New  Mexico]  or  of  any  judge  thereof,  or  of  the  District  courts 
[in  the  Tei-ritories]  created  by  this  title,  or  of  any  judge  thereof,  upon 
writs  of  habeas  corpus  involving  the  question  of  personal  freedom."  The 
act  of  1891  very  plainly  abolished  this  right  of  appeal  on  habeas  corpus  in 
criminal  cases  other  than  capital,  since  it  substituted  a  right  of  appeal  to 
the  circuit  courts  of  appeals.  But  in  capital  cases,  and  in  civil  cases 
not  of  the  type  appealable  to  the  circuit  court  of  appeals,  R.  S.  §  1909, 
still  applies;  and  appeal  lies  from  the  district  or  supreme  courts  of  Arizona 
and  New  Mexico  (which  are  the  only  remaining  Territories  among  those 
there  enumerated)  upon  habeas  corpus  proceedings  "involving  the  question 
of  personal  freedom. is  Habeas  corpus  to  determine  the  right  to  the  cus- 
tody of  a  child  does  not  involve  a  question  of  personal  freedom. 1 6% 

Affirmative  provision  conferring  right  of  appeal  from  a  Territorial  court 
must  appear  or  no  right  exists.i7  A  Territorial  statute  cannot  enlarge  the 
right  of  appeal. 18 

[bj     Only  final  judgment  or  decree  appealable. 

Although  the  statute  docs  not  now  so  specify,  there  can  be  no  doubt 
that  only  a  final  Territorial  judgment  or  decree  is  reviewable.  An  order 
dismissing  an  appeal  because  not  in  time,  is  not  final, 1 9  neither  is  an  order 

i2Post,  §  81.  sen.  Petitioner,  131  U.  S.  176,  33  L. 

isShute  V.  Keyser,   149  U.  S.  651,  ed.   119,  9  Sup.  Ct.  Rep.  672;   In  re 

37  L.  ed.  884,  13  Sup.  Ct.  Rep.  960;  Delgado,  140  U.  S.  586,  35  L.  ed.  579, 
Aztec  M.  Co.  V.  Ripley.  151  U.  S.  81,  11  Sup.  Ct.  Rep.  874. 

38  L.  ed.  80,  14  Sup.  Ct.  Rep.  236.              i6H>New     York     F.     Hospital     v. 
i4See  Royal  Ins.  Co.  v.  Martin,  192    Gattie,  203  U.  S. ,  51  L.  ed.  (adv. 

U.  S.  156,  48  L.  ed.  386,  24  Sup.  Ct.  op.  53)   S7   Sup.  Ct.  Rep.  . 

Rep.  247,  reviewing  this  legislation.  i^Clarke    v.    Bazadone,    1    Crancli. 

isPost,  §§  51  to  57.  212,  2  L.  ed.  85. 

ifiConzales  v.  Cunningham,  164  U.        isKennon  v.  Gilmer.  131  U.  S.  24, 

S.  621.  41  L.  ed.  572,  17  Sup.  Ct.  Rep.  33  L.  ed.  110,  9  Sup.  Ct.  Rep.  696. 
182;   In  re  Snow,  120  U.  S.  281,  30        isHarrington  v.  Holler,   111  U.  S. 

L.  ed.  658,  7  Sup.  Ct.  Rep.  556 ;  Neil-  797,  28  L.  ed.  602,  4  Sup.  Ct.  Rep.  697. 

260 


Procedure]  OX  APPEAL  FROM  TERRITORIES.  §  4S    [c] 

setting  aside  a  sheriff's  return  to  an  execution. 20  Where  numerous  issues 
of  fact  are  left  undisposed  of  and  to  be  determined  upon  a  new  trial,  there 
is  no  final  reviewable  judgment.i  An  affirmance  of  a  judgment  of  dis- 
missal below  based  upon  the  invalidity  of  a  statute  is  fiiial.2 

[c]     Amount  in  controversy  and  criminal  cases. 

A  decree  dismissing  a  hushaiid's  cross  complaint  for  divorce  and  granting 
the  wife  $6,000  alimony  upon  her  complaint,  involves  the  requisite  juris- 
dictional value ;  but  a  mere  decree  granting  or  denying  a  divorce  would  not 
be  reviewable  because  representing  no  matter  of  pecuniary  value. 4  .Judg- 
ment against  several  defendants  for  $5,000  each  cannot  be  aggregated  to 
make  the  necessary  total. 5  In  a  suit  over  possession  the  value  of  the  land 
is  not  the  measure  of  value.6  If  the  judgment  in  the  Territorial  supreme 
court,  by  adding  the  interest  on  a  judgment  below  for  less  than  the  re- 
quisite sum,  amounts  to  more  than  $.5,000,  the  necessary  value  is  involved.? 
A  mandamus  proceeding  by  a  property  owner  to  restrain  the  removal  of 
the  territorial  seat  of  government  does  not  involve  a  dispute  capable  of 
pecuniary  estimate; 8  neither  does  a  suit  to  test  the  validity  of  a  vote  to 
move  a  county  seat.9  21  quo  warranto  proceeding  ousting  a  county  asses- 
sor does  not  involve  a  dispute  of  pecuniary  value  where  the  term  had  ex- 
pired before  the  Territorial  supreme  court's  decision.io  Where  only  part 
of  a  judgment  is  in  dispute  and  that  for  less  than  $5,000  an  appeal  will  be 
dismissed.il  The  effect  of  the  provision  measuring  appellate  jurisdiction 
by  an  amount  in  controversy  is  to  exclude  review  in  criminal  cases,i2  since 
the  matter  there  in  dispute  is  not  susceptible  of  pecimiary  estimate.13 
Since  1891  criminal  cases  other  than  capital  are  appealable  to  the  circuit 
court  of  appeals.i4  But  capital  cases  are  not  appealable  at  all  except  up- 
on habeas  corpus.!  B 

20Wells    Fargo    v.    McGregor,     13  lOAlbright  v.  New  Mexico,  200  U. 

Wall.  188,  20  L.  ed.  5.38.  S.    9,   .50    L.     ed.     346,    26    Sup.    Ct. 

iHolcombe  v.  McKusick,   20  How.  Rep.  210. 

552,  15  L.  ed.  1020.  iiNew  Mexico  v.  Atchison.  et<'.  Ry. 

2Guthrie   Nat.     Bank    v.   Guthrie,  201  U.  S.  41,  50  L.  ed.  651,  26  Sup. 

173  U.  S.  539,  43  L.  ed.  796,  19  Sup.  Ct.  Rep.  386. 

Ct.  Rep.  513.  12 Ante,  §  45.M 

4Simms  v.   Simms,   175  U.  S.   169,  isUnited  States  v.  Sanges,  144  U. 

44  L.  ed.  118,  20  Sup.  Ct.  Rep.  58.  S.  310,  320,  36  L.  ed.  445.  12  Sup.  Ct. 

sWilson   v.  Kiesel.   164  U.   S.  248,  Rep.    609;    Famsworth   v.   Montana. 

41  L.  ed.  422,  17  Sup.  Ct.  Rep.  124.  129   U.    S.    Ill,   32   L.   ed.   616,   618, 

6McClung  V.  Penny,  189  U.  S.  145,  n     Sup.     Ct.     Rep.     253;     Snow     v. 

47  L.  ed.  754,  23  Sup.  Ct.  Rep.  .589.  United  States.   118  U.  S.  347,  .30  L. 

7Benson  M.   &    S.    Co.    v.    Alta   M.  ed.  207,  6  Sup.  Ct.  Rep.  1059;   In  re 

&   S.   Co.    145   U.   S.   428,   36   L.   ed.  Lennon,  150  U.  S.  393,  397,  37  L.  ed. 

763,  12  Sup.   Ct.  Rep.   877;    Guthrie  1120,    14    Sup.    Ct.   Rep.    123:    In   re 

Nat.  Bank  v.  Guthrie,  173  U.  S.  539,  Belt,  159  U.  S.  95,  100,  40  L.  ed.  88, 

43  L.  ed.  796,  19  Sup.  Ct.  Rep.  513.  15  Sup.  Ct.  Rep.  987. 

sChumasero  v.  Potts,  92  U.  S.  358,  i4Post.  §§  77,  81. 

23  L.  ed.  499.  i5Supra.[a] 

sSmitli    v.   Adams,   1,30  U.    S.    173, 
32  L.  ed.  895.  9  Sup.  Ct.  Rep.  566. 

261 


§   48   [d]  SUPREME   COURT  JURISDICTION.  [Coue  Fed. 

[dj  Cases  involving  validity  of  patent  or  copyright,  Federal  statute  treaty 
or  authority. 
A  similar  provision  respecting  appeal,  from  the  District  of  Columbia  is 
elsewhere  considered. i  A  right  of  appeal  to  the  Supreme  Court  might  ex- 
ist under  this  clause  in  cases  otherwise  within  the  class  appealable  to  the 
circuit  court  of  appeals.  Presumably  however  the  party  would  be  obliged  to 
take  such  a  case  to  the  Supreme  Court.  The  act  of  1885  allows  appeal  to  the 
Supreme  Court  where  the  validity  of  a  patent  is  in  question  and  the  act 
of  1891  makes  a  case  arising  under  the  patent  laws  appealable  to  the  cir- 
cuit court  of  appeals.  If  there  are  or  might  conceivably  be  cases  involv- 
ing the  validity  a  patent  which  yet  did  not  arise  under  the  patent  laws, 
such  cases  would  still  go  to  the  Supreme  Court  notwithstanding  the  act  of 
1891.2  A  case  involving  the  validity  of  a  governor's  appointment  of  a 
Territorial  auditor  involves  the  validity  of  an  authority  exercised  under 
the  United  States. 3  So  also  does  a  case  involving  the  status  of  a  body 
of  persons  as  the  legal  Territorial  legislature  or  as  usurpers, *  and  a  case 
involving  a  contention  that  a  territory  had  no  authority  to  extend  its  tax 
laws  to  an  Indian  reservation.s  A  case  involving  a  dispute  as  to  an  act 
done  under  an  authority  as  for  instance  the  acts  of  an  officer  under  the 
Territorial  Code,  does  not  necessarily  call  in  question  the  validity  of  that 
authority.6 

§  49.     When  a  territory  becomes  a  state  after  judgment  in  Ter- 
ritorial court. 
In  all  cases  where  the  judgment  or  decree  of  any  court  of  a  terri- 
tory might  be  reviewed  by  the  Supreme  Court  on  writ  of  error  or 
appeal,  such  writ  of  error  or  appeal  may  be  taken,  within  the  time 
and  in  the  manner  provided  by  law,  notwithstanding  such  terri- 
tory has,  after  such  judgment  or  decree,  been  admitted  as  a  State : 
and  the  Supreme  Court  shall  direct  the  mandate  to  such  court  as 
the  nature  of  the  writ  of  error  or  appeal  requires. 
R.  S.  §  703,  U.  S.  Comp.  Stat.  1901,  p.  572. 

The  above  provision  was  originally  enacted  in  1858.io  The  admission  of 
a  Territory  as  a  State  at  once  terminates  the  existence  and  powers  of  the 
territorial  courts.  They  are  no  longer  competent  to  discharge  the  functions 
even  of  Federal  courts  under  the  Constitution,  unless  Congress  confers  the 
authority  and  organizes  them  as  respects  the  tenure  of  their  judges  and 

lAnte,  §  45.W]  156  U.  S.  351,  39  L.  ed.  447,  15  Sup. 

2 See  ante.  §  15.  Ct.  Rep.  391. 

sClavton  v.  Utah,  1,32  U.  S.  638,  33  eperiy  v.  King  Co.  141   U.  S.  673, 

L.  ed.  455,  10  Sup.  Ct.  Rep.  190.  35  L.  ed.  895,  12  Sup.  Ct.  Rep.  130. 

4Clouoh  V.  Curtis,  134  U.  S.  369,  33  loAct  June   12,   1858,  c.   154,  §  18. 

L.  ed.  945.  10  Sup.  Ct.  Rep.  573.  11   Stat.  329. 

BMaricopa  &  P.  R.  R.  v.  Arizona, 

262 


Procedure]  ON    APPEAL    FROM    TERRITORIES.  S  50 

otherwise,  in  conformity  with  the  provisions  of  the  Constitution.il  As  re- 
spects the  records  in  cases  pending  at  the  time  of  admission  and  which  are  of 
appropriate  Federal  cognizance  it  is  for  Congress  and  not  the  new  State  to 
provide  a  custodian  and  for  their  transfer  to  the  Federal  court  of  the  new 
State.  12  As  respects  pending  cases  of  appropriate  State  cognizance  con- 
current action  by  Congress  and  the  new  State  should  be  taken;  Congress 
authorizing  the  transfer  of  the  Territorial  records  to  the  new  State  court, 
and  the  State  empowering  its  courts  to  take  jurisdiction  and  determine 
the  causes.  This  assent  of  Congress  to  a  transfer  of  such  Territorial  rec- 
ords may,  however,  be  presumed. 1 3  Where  a  cause  has  been  decided  before 
admission,  in  the  highest  Territorial  court  even  though  an  appeal  to  the 
Supreme  Court  has  already  been  taken  and  the  case  is  there  pending,  there 
must  be  legislation  by  Congress  to  preserve  the  right  of  appeal  and  the 
existing  appeal,  which  would  otherwise  lapse  by  the  admission  of  the  new 
State;  1*  and  further  legislation  by  Congress  to  authorize  the  execution  of 
the  Supreme  Court's  mandate  in  the  Federal  court  of  the  new  State  if  the 
cause  is  Federal  in  character,  and  otherwise  in  the  proper  State  tribunal. 
Such  legislation  is  to  be  found  in  R.  S.  §  703,  supra,  so  far  as  concerns  cases 
decided  prior  to  admission  and  not  yet  appealed.  The  section  does  not, 
however,  preserve  an  existing  appeal  but  only  an  existing  right  of  appeal. 
Hence  an  appeal  already  taken  at  the  time  of  admission  would  lapse,i5 
even  though  the  record  were  actually  in  the  Supreme  Court  at  the  time  of 
the  admission.  A  case  transferred  to  the  highest  State  court  on  petition 
for  rehearing  of  decision  of  highest  Territorial  court,  is  not  reviewable  in 
the  Supreme  Court  unless  of  Federal  cognizance  under  the  section  respect- 
ing writ  of  error  from  a  State  court. 16  Where  a  territory  is  admitted  as 
two  States  the  mandate  will  go  to  the  supreme  court  of  that  State  wherein 
lies  the  county  of  trial. i"  It  is  customary  now  for  Congress  to  provide 
with  great  particularity  for  transfers  of  causes  and  court  records  from 
Territorial  courts  to  the  new  State  and  Federal  courts,  and  for  the  main- 
tenance of  existing  appeals  and  existing  rights  of  appeal. is 

§  50.     Review  of  judgments   of  district  courts  in  cases  trans- 
ferred from  territorial  courts. 
The  judgments  or  decrees  of  any  district  court,  in  cases  trans- 

iiBenner  v.  Porter,  9  How.  244.  1.3  022.     This  seems  to  be  an  oversight 

Tj.  ed.  123.     See  Forsythe  v.  I'nited  on    the    part    of   Congress.      But    the 

States.  9  How.  573,  13  L.  ed.  263.  act  admitting  Oklahoma  remedies  the 

i2Hunt  v.    Palao.   4  How.   590,   11  omission:    Act  June  16,  1906,  c.  3335. 

L.  ed.  1115.  §  15.  34  St-at.  276. 

isBenner    v.    Porter,  9  How.    246,  iGNorthern  Pac.  R.  R.  v.  Holmes, 

247,  13  L.  ed.  124.  155  U.  S.   140,  39  L.  ed.  99,  15  Sup. 

KHunt  V.  Palao,  4  Hoav.   590,    11  Ct.  Rep.  28. 

L.   ed.   1115;    McNultv   v.   Batty.    10  iTElliott  v.  Chicago,  etc.  Rv.  150  U. 

How.   78,   13   L.   ed.   3.35-.    Gordon   v.  S.  249,  37  L.  ed.  1068.  14  Sup.  Ct.  Rep. 

ITnited  States,  117  U.  S.  704.  85. 

i^See  I^lcNultv  v.  Battv.  10  How.  isAct  June  16,  1906,  c.  3335,  §  15, 

80.  13  L.  ed.  333,  336,  and  see  Free-  34  Stat.  276. 
born  V.  Smith,  2  Wall.  160,  17  L.  ed. 

263 


§   51  SUPREME     COURT    JURISDICTION.  [Code  Fed. 

ferred  to  it  from  the  superior  court  of  any  territory,  apon  the  ad- 
mission of  such  territory  as  a  State,  under  sections  five  hundred  and 
sixty-seven  and  five  liundred  and  sixty-eight^,  may  be  reviewed  and 
reversed  or  affirmed  upon  writs  of  error  sued  out  of,  or  appeals  taken 
to,  the  Supreme  Court,  in  the  same  manner  as  if  such  judgments  or 
decrees  had  been  rendered  in  said  superior  court  of  such  territory. 
And  the  mandates  and  all  writs  necessary  to  the  exercise  of  the 
appellate  jurisdiction  of  the  Supreme  Court  in  such  cases  shall 
be  directed  to  such  district  court,  which  shall  cause  the  same  to 
be  duly  executed  and  obeyed. 

R.  S.  §  704,  U.  S.  Comp.  Stat.  1901,  p.  572. 

This  section  was  enacted  in  1S47  and  again  in  1848.2  It  grew  out  of  the 
decision  in  Hunt  v.  Pala,3  and  referred  at  the  time  particularly  to  the 
causes  in  the  Territory  of  Florida. 4 

§  51.     Appeals  from  Indian  Territory  direct  to  Supreme  Court. 

The  legislation  of  Congress  at  its  last  session,  for  the  admission 
of  Oklahoma  and  Indian  Territory  as  a  State  supersedes  the  various 
provisions  for  appeal  from  those  territories,  and  renders  them  of 
value  only  for  their  bearing  upon  pending  cases. 
Authors  section. 

By  an  act  of  18986  it  was  provided  that  "Appeals  shall  be  allowed  from 
tihe  United  States  courts  in  the  Indian  Territory  direct  to  the  Supreme 
Court  of  the  United  States  to  either  party  in  all  citizenship  cases,  and  in 
all  cases  beween  either  of  the  Five  Civilized  Tribes  and  the  United  States 
involving  the  constitutionality  or  validity  of  any  legislation  affecting  cit- 
izenship, or  the  allotment  of  lands,  in  the  Indian  Territory,  under  the  rules 
and  regulations  governing  appeals  to  said  court  in  other  cases."  That  en- 
actment governed  the  subject  until  1905,  where  it  was  provided  that  "here- 
after all  appeals  and  writs  of  error  shall  be  taken  from  the  United  States 
courts  in  the  Indian  Territory  to  the  United  States  court  of  appeals  in 
the  Indian  Territory,  and  from  the  United  States  court  of  appeals  in  the 
Indian  Territory  to  the  United  States  circuit  court  of  appeals  for  the 
eighth  circuit  in  the  same  manner  as  is  now  provided  for  in  cases  taken  by 
appeal  or  writ  of  error  from  the  circuit  courts  of  the  United  States  to  the 

iSee  post,  §  213.  4 See  Benner  v.  Porter,  9  How.  245, 

2See   act    Feb.    22,    1847,   c.    17,    §  13   L.    ed.    124;    Forsythe   v.    United 

1,   9   Stat.   128;   also  same  provision  States,  9  How.  573,  13  L.  ed.  263. 

act  Feb.  22,  1848,  c.  12  §  2,  9  Stat.        6Act  July  1,  1898,  c.  545,  30  Stat. 

212.  591. 
84  How.  589,  11  L.  ed.  1115. 

264 


Frocedure]  QUESTIONS  CERTIFIED  IN  ALASKA  CASES.  §  53 

circuit  coxirt  of  appeals  of  the  United  States  for  the  eighth  "circuit."^     De- 
cisions construing  the  superseded  provisions  will  be  found  in  a  footnote. » 

§  52.     From  Alaska  district  court. 

Appeals  and  writs  of  error  may  be  taken  and  prosecuted  from 
the  final  judgments  of  the  district  court  of  the  district  of  Alaska  or 
any  division  thereof  direct  to  the  Supreme  Court  of  the  United 
States  in  the  following  cases,  namely:  In  prize  causes  and  in  all 
cases  which  involve  the  construction  or  application  of  the  Constitu- 
tion of  the  United  States,  or  in  which  the  constitutionality  of  any 
law  of  the  United  States,  or  the  validity  or  construction  of  any 
treaty  made  under  its  authority  is  dra\\Ti  in  question,  or  in  which 
the  Constitution  or  law  of  a  State  is  claimed  to  be  in  contravention 
of  the  Constitution  of  the  United  States. 

Part  of  §  504,  Alaska  Code,  31  Stat.  414,  Act  June  6,  1900,  c.  786. 

The  balance  of  the  section  makes  other  cases,  involving  more  than  $500, 
appealable  to  the  circuit  court  of  appeals.io  A  proceeding  to  obtain  a 
license  for  a  vessel  in  Alaska  waters  is  not  one  in  which  a  final  judgment 
can  be  rendered  permitting  appeal  within  this  section. n  The  provision 
is  similar  to  that  permitting  direct  appeals  from  the  circuit  and  district 
courts.!  2 

§  53.  Questions  certified  in  Alaska  cases  on  which  instructions 
desired. 
Whenever  the  judges  of  the  circuit  court  of  appeals  may  desire 
the  instruction  of  the  Supreme  Court  of  the  United  States  upon  any 
question  or  proposition  of  law  which  shall  have  arisen  in  any  case 
pending  before  the  circuit  court  of  appeals  on  writ  of  error  to  or 
appeal  from  the  district  court  [of  Alaska]  judges^"*  may  certify 
such  question  or  proposition  to  the  Supreme  Court,  and  thereupon 
the  Supreme  Court  shall  give  its  instruction  upon  the  questions 
and  propositions  certified  to  it,  and  its  instruction  shall  be  binding 
upon  the  circuit  court  of  appeals. 

Part  of  §  505,  Alaska  Code,  31  Stat.  415,  act  June  6,  1900,  c.  786. 

7Act  March  3,  1905,  c.  1479,  §  12,  174  U.  S.  445,  43  L.  ed.  1041,  19  Sup. 

33  Stat.  1081,  U.  S.  Comp.  Stat.  1905,  Ct.  Rep.  722. 

p.  150.  10  See  post,  §  82. 

sBrown   v.   United   States,   171    U.  uPacific     S.     W.     Co.     v.    United 

S.  631,  43  L.  ed.  312,  19  Sup.  Ct.  Rep.  States,  187  U.  S.  447,  47  L.  ed.  254, 

56;  Ansley  v.  Ainsworth.   180  U.   S.  23  Sup.  Ct.  Rep.  154. 

253,  45  L.  ed.  517,  21   Sup.  Ct.  Rep.  isAiite,  §  42. 

364;     Stephens   v.   Cherokee   Nation,  i^So  in  the  printed  statutes. 

2G5 


§   54  SUPREME    COURT    JURISDICTION.  [Code  Fed. 

§  54.     Appeals  from  Territory  of  Hawaii. 

The  laws  of  the  United  States  relating  to  appeals,  writs  of  error, 
removal  of  causes,  and  other  matters  and  proceedings  as  hetweon 
the  courts  of  the  United  States  and  the  courts  of  the  several  States 
shall  govern  in  such  matters  and  proceedings  as  between  the  courts 
of  the  United  States  and  the  courts  of  the  Territory  of  Hawaii. 

Part  of  §  86  of  act  April  30,  1900,  e.  339,  31  Stat.  158. 

By  the  act  of  1900  organizing  the  Territory  of  Hawaii,  Congress  departed 
from  its  previous  policy  as  to  the  territorial  judiciary,  and  created  a  dual 
system  of  courts  in  analogy  to  the  State  and  Federal  courts  found  in  the 
several  states.  It  established  a  district  court  having  the  powers  and  juris- 
diction of  the  Federal  circuit  and  district  courts.  It  adopted  the  existing 
courts  of  the  old  republic  of  Hawaii  and  left  their  jurisdiction  intact,  and 
then  provided  by  the  above  enactment,  that  as  between  the  Federal  district 
court  having  jurisdiction  of  matters  within  the  scope  of  the  Federal 
judicial  power,  and  the  territorial  courts  having  jurisdiction  similar  to 
State  courts,  the  laws  governing  the  right  of  review  in  and  removal  t>> 
Federal  courts  in  the  several  States  should  apply. is  Final  judgments  of 
the  Hawaiian  district  court  are  reviewable  in  the  circuit  court  of  appeals 
and  in  the  Supreme  Court,  as  in  the  case  of  any  other  district  or  circuit 
court.16  Final  judgments  of  the  Hawaiian  Territorial  courts  are  review- 
able on  error  as  in  the  case  of  State  tribunals,  and  the  procedure,  scope  of 
review  and  disposition  of  the  cause  in  the  Supreme  Court  will  be  the  same  aa 
on  error  to  a  State  court.i7 

§  55.     Appeals  from  Porto  Rico  supreme  and  district  courts. 

Writs  of  error  and  appeals  from  the  final  decisions  of  the  Su- 
preme Court  of  Porto  Rico  and  the  district  court  of  the  United 
States  shall  be  allowed  and  may  he  taken  to  the  Supreme  Court  of 
the  United  States  in  the  same  manner  and  under  the  same  regula- 
tions and  in  the  same  cases  as  from  the  Supreme  Courts  of  the  Ter- 
ritories of  the  United  States;  and  such  writs  of  error  and  appeal 
shall  be  allowed  in  all  cases  where  the  Constitution  of  the  United 
States  or  a  treaty  thereof,  or  an  act  of  Congress,  is  brought  in  ques- 
tion, and  the  right  claimed  thereunder  is  denied.  .  .  . 
Part  of  §  35  of  act  April  12,  1900,  c.  191,  31  Stat.  85. 

The  cases  in  the  Supreme  Courts  of  the  Territories  which  are  reviewable  in 
the  Federal  Supreme  Court  are  enumerated  in  sections  of  the  law  already 

i5See   Wilders   S.   J.   Co.   v.  Hind,  S.   197.   47   L.  ed.   1016.  23   Sup.   Ct. 

108   Fed.    113,   47    C.   C.  A.   243:    Ex  Rep.  787. 

parte   Wilders    S.    S.   Co.    183   U.    S.        liEquitable      L.      Assur.     Soc.     v. 

545,  46  L.  ed.  321,  22  Sup.  Ct.  Rep.  Brown,  187  U.  S.  308,  47  L.  ed.  190, 

225.  23  Sup.  a.  Rep.   123. 

i6See  Hawaii  v.  Mankichi,  190  U. 

266 


Procedure]  FROM  PHILIPPINES.  §  56 

considered.  1  In  similar  cases  when  decided  in  the  Porto  Rico  district  or 
supreme  courts,  there  exists  a  similar  right  of  review.  Hence  a  Porto  Rico 
case  involving  more  than  $5,000  and  not  within  the  class  made  appealnble  to 
the  circuit  court  of  appeals  if  arising  in  Arizona  or  New  IMexico,  is  appeal- 
able to  the  supreme  court; 2  though  no  Federal  right  is  involved. 3  A 
right  under  an  act  of  Congress  is  denied  within  the  meaning  of  the  pro- 
vision for  appeal,  where  motion  in  arrest  of  judgment  based  on  a  claim  that 
the  grand  jury  was  not  summoned  as  provided  by  tlie  Federal  slatuti'. 
is  denied. ■!  A  claim  that  an  indictment  did  not  set  forth  an  ofi'ense  under 
Federal  statutes  is  too  vague  as  an  assertion  of  a  Federal  claim. 5  The 
Supreme  Court  has  intimated  that  no  cases  are  appealable  from  the  Porto 
Rico  courts  to  any  circuit  court  of  appeals. «  Hence  the  class  of  cases  ap- 
pealable to  the  circuit  court  of  appeals  if  arising  in  Arizona  or  New  Mexico, 
could  not,  if  arising  in  Porto  Rico,  be  appealable  to  any  court  unless  consti- 
tuting a  denial  of  a  right  under  the  Federal  Constitution,  treaties  or  laws. 
under  the  latter  portion  of  the  above  provision.  A  case  denying  a  right 
in  respect  to  the  selection  or  qualifications  of  grand  jurors  under  the  Fed- 
eral laws,  comes  within  sucli  latter  clause. 7 

§  56.     Error  and  appeal  from  supreme  court  of  Philippines. 

The  Supreme  Court  of  the  United  States  shall  have  jurisdiction 
to  review,  revise,  reverse,  modify,  or  affirm  the  final  judgments  and 
decrees  of  the  supreme  court  of  the  Philippine  Islands  in  all  ac- 
tions, cases,  causes,  and  proceedings  now  pending  therein  or  here- 
after determined  thereby  in  which  the  Constitution  or  any  statute, 
treaty,  title,  right,  or  privilege  of  the  United  States  is  involved,  or 
in  causes  in  which  the  value  in  controversy  exceeds  twenty-five 
thousand  dollars,  or  in  which  the  title  or  possession  of  real  estate 
exceeding  in  value  the  sum  of  twenty-five  thousand  dollars,  to  be 
ascertained  by  the  oath  of  either  party  or  of  other  competent  wit- 
nesses, is  involved  or  brought  in  question;  and  such  final  judg- 
ments or  decrees  may  and  can  be  reviewed,  revised  reversed,  modi- 
fied, or  aflBrmed  by  said  Supreme  Court  of  the  United  States  on  ap- 
peal or  writ  of  error  by  the  party  aggrieved,  in  the  same  manner, 
under  the  same  regulations,  and  by  the  same  procedure,  as  far 

lAnte,  §  48.  U.  S.  156,  49  L.  ed.  994,  25  Sup.  Ct. 

2RoyaI  Tns.  Co.  v.  :\Iartin,   192  U.  ^^P-  ^^''■ 
S.  159.  160.  48  L.  ed.  .388.  24  Sup.  Ct.        ^Amndo  v.  United   States.   195   U. 

Rep.  247;  Hijo  v.  United  States.  194  f-  l^^--  4»  L.  ed.  145.  25  Sup.  Ct.  Rep. 

U.  S.  320,  48  L.  ed.  995.  24  Sup.  Ct.  ^\^        ,   ,        ^  ,,     ,.       ._,  ,, 

"Rpn    797  6Roval   Ins.  Co.  v.  Martin,  192  U. 

P'       '•  S.  160".  48  L.  ed.  .385.  24  Sup.  a.  Rep. 

sAmado  v.  United  States.    195   U.  247 
S.   173,   49   L.   ed.    145,   25    Sup.    Ct.        TCrowley  v.  United  States,   194  U. 

Rep.  13.  S.  466,  48  L.  ed.  1075,  24  Sup  Ct.  Rep. 

^Rodriguez   v.   United   States,    198  731. 

267 


§   r.7  tiUl'KEMK     COLUT     J  U1H«D1CTI0N.  [Code   Fed. 

as  applicable,  as  the  final  judgments  and  decrees  of  the  circuit 
courts  of  the  United  States. 

§  10  of  act  July  1,  1902,  c.  1369,  32  Stat.  695,  U.  S.  Comp.  Stat.  1905, 
p.  154. 

Provisions  measuring  appellate  jurisdiction  by  an  amount  in  dispute,  are 
also  contained  in  the  law  conferring  a  right  of  appeal  from  other  terri- 
tories! o  and  the  District  of  Columbian  and  the  cases  bearing  upon  them 
are  applicable  to  this  enactment.  While  a  question  of  divorce  is  not  one 
susceptible  of  pecimiary  estimate,  yet  if  alimony  in  excess  of  $25,000  is 
involved  the  case  is  appealable.  12 

§  57.  —  from  Oklahoma  Territory. 

Tlie  admission  of  Oklahoma  and  Indian  Territory  as  a  State  has 
superseded  the  legislation  respecting  appeals  except  as  to  pending 
eases.     The  effect  of  the  admission  of  a  State  upon  pending  cases  is 
elsewhere  considered. ^^ 
Author's  section. 

The  original  proAnsion  for  appeal  from  Oklahoma  Territory  was  as  fol- 
lows: "Writs  of  error  and  appeals  from  the  final  decisions  of  said  supreme 
court  [i.  e.  the  supreme  court  of  Oklahoma]  shall  be  allowed  and  may  be 
taken  to  the  Supreme  Court  of  the  United  States  in  the  same  manner  and 
under  the  same  regulations  as  from  the  circuit  courts  of  the  United  States, 
where  the  value  of  the  property  or  the  amount  in  controversy,  to  be  ascer- 
tained by  oath  or  affirmation  of  either  party  or  other  competent  witness, 
shall  exceed  five  thousand  dollars."i5  This  provision  was  modified  by  §  15 
of  the  circuit  court  of  appeals  act  of  1891, 1 6  authorizing  appeal  to  that 
court  from  Territorial  supreme  courts  in  the  cases  therein  made  final.i7 
Some  of  the  decisions  bearing  upon  the  old  law  are  given  in  a  footnote.is 

§  58.     Appeals  from  Court  of  Claims. 

An  appeal  to  the  Supreme  Court  sliall  be  allowed,  on  behalf  of 
the  United  States,  from  all  judgments  of  the  Court  of  Claims  ad- 

lOAnte,  §  48.[c]  U.  S.  533,  43  L.  ed.  798,  19  Sup.  Ct. 

iiAnte,  §  45.[c]  Rep.  513;   New  v.  Oklahoma,  195  U. 

i2De  La   Rama   v.   De   La   Rama,  S  252,  49  L.  ed.  182,  25  Sup.  Ct.  Rep. 

201  U.  S.  303,  50  L.  ed.  765,  26  Sup.  68;  Queenan  v.  Oklahoma,  190  U.  S. 

a.  Rep.  485.  548,  47  L.  ed.  1175,  23  Sup.  Ct.  Rep. 

1 4 Ante,  §  49.  762;    Comstock  v.  Eagleton,  196  U.  S. 

isPart  of  §  9,  act  May  2,  1890,  c.  99.  49  L.  ed.  402,  25   Sup.   Ct.  Rep. 

ISe,  26  Stat.  86.  210;     Oklahoma    Citv    v.    McMaster. 

■  lePost,  §  81.  196  U.  S.  529,  49  L.^ed.  587,  25  Sup. 

i7See  ante,  §  48,  as  to  other  terri-  Ct.  Rep.  324;  Guss  v.  Nelson.  200  U. 

tories.  S.  298.  50  L.  ed.  489.  26  Sup.  Ct.  Rep. 

iSMcClung  v.  Penny,  189  U.  S.  145,  260;     New   v.   Oklahoma,    195  U.   S. 

47  L.  ed.  753,  23  Sup.  Ct.  Rep.  580;  252,  49  L.   ed.   182,   25  Sup.  Ct.  Rep. 

Guthrie  v.   Guthrie   Nat.   Bank,   173  68. 

268 


iTocedure]  ON   APPEAL    PROM    COURT  OF    CLAIMS.  §  58   [b] 

verse  to  the  United  States,  and  on  behalf  of  the  plaintiff  in  any 
case  where  the  amount  in  controversy  exceeds  three  thousand  dol- 
lars, or  where  his  claim  is  forfeited  to  the  United  States  by  the 
judgment  of  said  court,  as  provided  in  section  one  thousand  and 
eighty-nine  J^^'^^^ 

R.  S.  §  707,  U.  S.  Comp.  Stat.  1901,  p.  574. 

[a]  History  of  section,  collateral  provisions  and  cross-references. 

This  provision  was  originally  enacted  in  1863  and  again  in  1868.1  The 
reference  to  R.  S.  §  1089,  is  intended  for  R.  S.  §  1086,  providing  forfeiture 
of  a  claim  for  fraud  in  the  proof,  statement,  establishment  or  allowance 
thereof.  The  present  law  governing  suits  against  the  United  States  was 
passed  in  1887.2  It  provides  by  §  4,  for  a  continuance  of  the  laws  in  force 
as  to  jurisdiction  and  right  of  appeal  except  as  therein  modified.  In  §  9 
it  provides  that  "the  plaintiff  or  the  United  States,  in  any  suit  brought 
under  the  provisions  of  this  act  shall  have  the  same  rights  of  appeal  or 
writ  of  error  as  are  now  reserved  in  the  statutes  of  the  United  States  in 
that  behalf  made,  and  upon  the  conditions  and  limitations  therein  con- 
tained. The  modes  of  procedure  in  claiming  and  perfecting  an  appeal  or 
writ  of  error  shall  conform  in  all  respects,  and  as  near  as  may  be,  to  the 
statutes  and  rules  of  court  governing  appeals  and  writs  of  error  in  like 
causes."  An  act  of  18913  respecting  the  jurisdiction  of  the  Court  of  Claims 
over  claims  for  Indian  depredations  provided  in  §  10  that  "the  claimant,  or 
the  United  States,  or  the  tribe  of  Indians,  or  other  party  thereto  interested 
in  any  proceeding  brought  under  the  provisions  of  this  act,  shall  have  the 
same  rights  of  appeal  as  are  or  may  be  reserved  in  the  statutes  of  the 
United  States  in  other  cases,  and  upon  the  conditions  and  limitations  therein 
contained.  The  mode  of  procedure  in  claiming  and  perfecting  an  appeal 
shall  conform,  in  all  respects,  as  near  as  may  be,  to  the  statutes  and  rules 
of  court  governing  appeals  in  other  cases."  Claims  under  the  captured  and 
abandoned  property  act  have  been  held  reviewable  in  the  supreme  court 
under  the  above  section,  although  the  statute  made  no  specific  provision 
thercfor.4  The  law  conferring  jurisdiction  on  appeals  from  the  court  of 
private  land  claims  is  omitted  because  temporary  in  its  character  and 
purposes.  The  time  for  taking  appeal,5  and  procedure  on  appeals  are  con- 
sidered  elsewhere. 

[b]  The  section  construed. 

The  section  as  enacted  in  the  law  of  1863  was  declared  legally  ineffective 
to  confer  jurisdiction  in  the   Supreme  Court,  for  the  reason  that  its  de- 

lAct  March  3,  1863,  c.  92,  §§  5,  11,  853,  U.  S.  Comp.  Stat.  1901,  p.  703. 
12  Stat.  706,  767;  act  June  25,  1808,        *Ex  parte  Zellner,  9  Wall.  246,  19 

c.  71  §  1,  15  Stat.  75.  L.  ed.  065;  United  States  v.  O'Grady, 

2Act.  March  3.  1887,  c.  359,  24  Stat.  22  Wall.  646,  22  L.  ed.  772. 
505.  U.  S.  Comp.  Stat.  1901,  p.  752.  sPost.  §§  1907-1909. 

'March    3,    1891,   c.   538,   26    Stat.        epost,  §§  1937-1939. 

269 


§  59  SUPREME    COURT    JURISDICTION.  [Code  Fed. 

cisions  were  subject  to  discretionary  action  on  the  part  of  the  executive 
and  therefore  would  constitute  an  exercise  of  a  function  in  subordination  to 
the  executive.*  The  objectionable  feature  of  the  act  of  1803  was  repealed  in 
186<),9  and  since  then  the  Supreme  Court  has  taken  junsdiction  on  appeal 
and  affirmed  its  jurisdiction,  in  a  large  number  of  cases. lo  A  right  of 
appeal  in  a  particular  case  must  be  conferred  by  law  or  it  does  not  exist. n 
Hence  where  an  act  of  Congress  as  to  payment  of  a  certain  French  spoliation 
claim  did  not  provide  for  an  appeal  as  to  the  party  entitled  to  payment, 
none  will  lie.  12  it  does  not  exist  since  the  act  of  1887,  where  the  amount  is 
less  than  $3,000;  and  no  regulations  of  the  executive  department,  or  certifi- 
cate and  pro  forma  decision  below  for  the  purpose  of  procuring  a  review,  can 
be  permitted  to  impair  the  force  of  the  legislative  enactment  on  the  subject.is 
Where  a  controverted  claim  in  the  executive  department  is  by  consent  re- 
ferred to  the  court  of  claims  under  §  12  of  the  act  of  1887,  supra,  for  its 
findings,  such  findings  do  not  constitute  a  judgment  from  which  appeal 
may  be  taken.  1 4  But  where  the  value  exceeds  $3,000  appeal  is  matter  of 
right. 15  A  claim  for  services  rendered  Indians  under  H.  S.  §§  2103-2105  is 
not  a  claim  against  the  United  States  within  the  section  under  con- 
sideration.! 6  A  suit  authorized  by  Congress  before  the  Court  of  Claims,  to 
determine  the  question  of  fraud  in  the  obtaining  of  an  award  against 
Mexico  is  a  "case"  and  not  merely  an  advisory  proceeding;  and  the  final 
decision  of  the  Court  of  Claims  may  be  reviewed  by  the  Supreme  Court.17 
Appeal  and  not  writ  of  error  is  the  appropriate  mode  of  review. is 

§  59.     Writ  of  error  on  conviction  of  capital  crime. 

Hereafter  in  all  eases  of  conviction  of  crime  the  punishment  of 
which  provided  by  law  is  death,  tried  before  any  court  of  the  United 
States,  the  final  judgment  of  such  court  against  the  respondent  shall, 
upon  the  application  of  the  respondent,  be  re-examined,  reversed, 
or  affirmed  by  the  Supreme  Court  of  the  United  States  upon  a  writ 

sGordon  v.  United  States,  2  Wall.  S.  255,  31  L.  ed.  421,  8  Sup.  Ct.  Rep. 

561,  17  L.  ed.  921.    See  117  U.  S.  702.  502.      Contra     under     earlier    laws: 

sActMar.  17,  1866,  c.  19,  14  Stat.  9.  United  States  Alire,  6  Wall.  577,  18 

lOUnited  States  v.  Alire.  6  Wall.  L.  ed.  947. 
577,  18  L.  ed.  948;  United  States  v.        i^ln  re  Sanborn,  148  U.  S.  222,  37 

Jones.  119  U.  S.  477,  30  L.  ed.  440,  7  L.  ed.  429,  13  Sup.  Ct.  Rep.  577. 
Sup.   Ct.  Rep.  283;   United  States  v.        is  United  States  v.  Adams,  6  Wall. 

O'Grady.  22  Wall.  041.  22  L.  ed.  772;  107,  18  L.  ed.  792. 
Langford  v.  United  States,  101  U.  S.        lein  re  Sanborn.  148  U.  S.  227,  37 

344.  25  L.  ed.  1012.  L.  ed.  429,  13  Sup.  Ct.  Rep.  577. 

iiUnited  States  V.  Atocha,  17  Wall.        i^La   Abra    S.    M.    Co.    v.    United 

439,  21  L.  ed.  696.  States,  175  U.  S.  423,  44  L,  ed.  223, 

i2United  States  v.  Gilliat,  164  U.  20  Sup.  Ct.  Rep.  168. 
S.  42,  41  L.  ed.  344,  17  Sup.  Ct.  Rep.        iSUnited   States   v.   Young,   94  U. 

16.  S.  259,  24  L.  ed.  153. 

isUnited  States  v.  Gleeson,  124  U. 

270 


i'roceduie]  DIRECT    APPEAL    FROM    CIRCUIT    COURTS.  §   CO 

of  error,  under  such  rules  and  regulations  as  said  court  may  pre- 
scribe. 

Part  of  §  6,  act  Feb.  6,  1880,  c.  113,  25  Stat.  656,  U.  S.  Comp.  Stat.  1901, 
p.  569. 

As  respects  appeal  from  the  circuit  and  district  courts  within  the  several 
States,  the  foregoing  provision  is  unquestionably  repealed  by  the  act  of 
1891.1  The  various  territorial  courts  are  not  "courts  of  the  United  States" 
in  the  sense  of  being  courts  invested  with  the  judicial  power  of  the  United 
States  created  by  Congress  under  its  power  to  establish  inferior  courts,  and 
whose  judges  possess  the  Constitutional  tenure  of  ofBce.2  Statutory  ref- 
erences to  courts  of  the  United  States  have  generally  been  held  not  to  in- 
clude such  courts,  although  there  are  exceptions  where  the  intent  of  Con- 
gress to  apply  the  provision  also  to  the  territorial  tribunals  and  the  courts 
of  the  District  of  Columbia  was  deemed  plain.  3  The  words  "any  court  of 
the  United  States"'  are  very  broad  and  the  nature  of  an  enactment  may 
show  that  other  than  technical  Federal  courts  are  included. *  It  has  been 
decided,  however,  that  §  6  of  the  act  of  1889,  supra,  does  not  apply  to  the 
District  of  Columbia, »  or  to  the  Indian  territory.6  It  has  never  been 
deemed  applicable  to  organized  Territories  such  as  Arizona  and  New 
.Mexico. 7  It  contemplates  a  direct  appeal  from  the  trial  to  the  Supreme 
Court,  a  proceeding  which  is  inconsistent  with  the  organization  and  distri- 
bution of  jurisdiction  in  the  courts  of  Arizona,  Xew  Mexico,  Oklahoma 
and  Indian  Territory.  And  the  provisions  respecting  review  from  Porto 
Rico,  Hawaii,  Alaska  and  the  Philippines  are  complete  in  themselves  and 
not  subject  to  qualification  or  extension  by  reference  to  earlier  general 
laws.  It  seems  clear  t<herefore  that  the  foregoing  provision  is  no  longer  in 
i'orce,  although  it  is,  out  of  caution,  inserted   here. 

§  60.  Direct  appeal  in  suits  for  failure  to  alter  bridge  ob- 
structing navigation. 
In  any  case  arising  under  the  provisions  of  this  section  [for  the 
recovery  of  a  penalty  upon  failure  to  alter  a  bridge  obstructing  navi- 
gation, after  notice  from  the  Secretary  of  War]  an  appeal  or  writ 
of  error  may  be  taken  from  the  district  courts  or  from  the  exist- 

lAnte,  §  42.m  S.  571,  36  L.  ed.  821,   12  Sup.  Ct. 

2Benner  v.  Porter,  9  How.  244.  13  Rep.   844;    Brown   v.   United   States, 

I-.   ed.    123:    McAllister    v.     United  171  U.  S.  6.36,  43  L.  ed.  312,  19  Sup. 

'States,  141  U.  S.   174.  35  L.  ed.  GOO.  Ct.   Rep.  5B. 

1]  Sup.  Ct.  Rep.  949:  Good  v.  Martin,        ECross  v.  United  States,  145  U.  S. 

^5  U.  S.  95.  24  L.  ed.  .343;  Revnolds  571,  36  L.  ed.  821,  12  Sup.  Ct.  Rep. 

V.  United  States,  98  U.  S.  145.^25  L.  844. 

^-d.  24G:   City  of  Panama,   101   U.  S.        6Bro\vn  v.   United    States,    171   U. 

460,  25  L.  ed.  1064.     See  ante,  §  8.[d]  S.  631,  43  L.  ed.  312,  19  Sup.  Ct.  Rep. 

3Soe  Page  v.  Burnstine,  102  U.  S.  56. 
'•04.  20  L.  ed.  268.  TAnte,   §   48[c] 

^See  Cross  v.  United  States,  145  U. 

271 


§  61  SUPREME     COUIIT    JUHISDICTION.  LCoae  vea. 

ing  circuit  courts  direct  to  the  Supreme  Court  either  by  the  United 
States  or  by  the  defendants. 

Part  of  §  18,  act  of  Mar.  3,  1899,  c.  425,  30  Stat.  1153,  U.  S.  Comp.  Stat. 
1901,  p.  3546. 

The  general  statute  governing  direct  appeal  appears  elsewhere.8 

§  61.     Appeal  in  bankruptcy  cases. 

The  Supreme  Court  has  an  appellate  jurisdiction  in  bankruptcy 
conferred  by  act  of  July  1,  1898,  and  considered  elsewhere.^ 
Author's  Section. 

§  63.  Appeal  in  proceedings  brought  in  name  of  commerce  com- 
mission. 
The  provisions  of  an  act  entitled  "An  act  to  expedite  the  hearing 
and  determination  of  suits  in  equity  pending  or  hereafter  brought 
under  the  act  of  July  2,  1890,  entitled,  'An  act  to  protect  trade 
and  commerce  against  unlawful  restraints  and  monopolies,'  'An 
act  to  regulate  commerce,'  approved  February  4,  1887,  or  any  other 
acts  having  a  like  purpose  that  may  be  hereafter  enacted,  approved 
February  11,  1903,"  [which  provides,  among  other  things,  for 
direct  appeal  to  the  Supreme  Court],  shall  apply  to  any  case  prose- 
cuted under  the  direction  of  the  Attorney  General  in  the  name  of 
the  Interstate  Commerce  Commission. 

Part  of  §  3,  act  Feb.  19,  1903,  c.  70S,  32  Stat.  848,  U.  S.  Comp.  Stat. 
1905,  p.  601. 

The  act  of  1903  above  referred  to,  provides  for  direct  appealu  from  the 
circuit  court  and  certificate  of  division  of  opinion  12  and  for  precedence  in 
hearing,  and  the  number  of  judges  to  sit,  in  the  circuit  court.is  This  pro- 
vision is  not  expressly  repealed  by  the  commerce  act  of  1906,  although  per- 
haps superseded  by  other  provisions  enlarging  the  class  of  cases  in  which 
appeal  lies. 

§  63.  —  in  proceedings  by  petition  to  enforce  Commission's  orders. 

From  any  action  upon  such  petition  [i.  e.  to  compel  obedience  to 
orders  of  the  Commerce  Commission  other  than  for  the  payment 
of  money^"*]  an  appeal  shall  lie  by  either  party  to  the  Supreme 
Court  of  the  United  States,  and  in  such  court  the  case  shall  have 
priority  in  hearing  and  determination  over  all  other  causes  except 

8 Ante,  §  42.  12  Ante,  §  44. 

9See  post,  §  2163.  et  seq.  isPost,  §  1368. 

"Ante,  §  43.  i^See  post,  §  1372,  et  seq. 

272 


1  locedure]  IN   CASES   FROM   COURT   IN    CHINA.  §  66 

criminal  causes,  but  such  appeal  shall  not  vacate  or  suspend  the 
order  appealed  from. 

Part  of  §  16  of  act  Feb.  4,  1887,  24  Stat.  376,  as  amended  June  29,  1906, 
c.  3591,  §  5,  34  Stat.  592. 

The  act  of  1906  also  makes  the  provisions  of  the  expediting  act  of  1903 
applicable  to  proceedings  to  enforce  orders  of  the  Commerce  Commission- 1^ 

§  64.  —  in  suits  against  the  Commission  to  suspend  orders,  etc. 

The  provisions  of  "An  act  to  expedite  the  hearing  and  determina- 
tion of  suits  in  equity,  and  so  forth/'  approved  February  11,  1903. 
[which  provides  among  other  things,  for  direct  appeal  to  the  Su- 
preme Court^^]  shall  be,  and  are  hereby,  made  applicable  to  all 
such  suits,  including  the  hearing  on  an  application  for  a  preliminar}- 
injunction,  and  are  also  made  applicable  to  any  proceeding  in  equity 
to  enforce  any  order  or  requirement  of  the  Commission,  or  any  of 
the  provisions  of  the  act  to  regulate  commerce  approved  February 
4,  1887,  and  all  acts  amendatory  thereof  or  supplemental  thereto. 
Part  of  §  16,  act  Feb.  4,  1887,  24  Stat.  376,  as  amended  by  §  5,  act 
June  29,  1906,  c.  3591,  34  Stat.  592. 

The  paragraph  from  which  the  above  is  taken  is  given  in  full  in  a 
subsequent  code  section. i'^ 

§  65.     Certiorari  to  review  trademark  cases. 

Writs  of  certiorari  may  be  granted  by  the  Supreme  Court  of  the 
United  States  for  the  review  of  cases  arising  under  this  act  in  the 
same  manner  as  provided  for  patent  cases  by  the  act  creating  the 
circuit  court  of  appeals. 

§  18,  act  Feb.  20,  1905,  c.  592,  33  Stat.  729,  U.  S.  Comp.  Stat.   1905, 
p.  675. 

The  provisions  for  certiorari  in  patent  and  other  cases  in  which  the  de- 
cision of  the  circuit  court  of  appeals  is  final,  is  given  elsewhere.19 

§  66.    Appeals  in  cases  from  court  in  China. 

Appeals  and  writs  of  error  may  be  taken  from  the  judgments 
or  decrees  of  the  said  circuit  court  of  appeals  [i.  e.  for  the  ninth 
circuit^o]  to  the  Supreme  Court  of  the  United  States  in  the  same 
class  of  cases  as  those  in  which  appeals  and  writs  of  error  are  per- 
mitted to  judgments  of  said  court  of  appeals  in  cases  coming  from 

isPost,  §  64.  19 Ante,  §  41. 

isSee  ante,  §  43.  20 See  post,  §  87,  where  the  section 

i7Post,  §  1372.  appears  in  full. 

Fed.  Proc— 18.  27? 


§   66  THE   SUPREME    COURT.  [Code   Fed. 

district  and  circuit  courts  of  the  United  States.  .  .  .  Said 
courts  are  hereby  empowered  to  hear  and  determine  appeals  and 
writs  of  error  so  taken. 

Part  of  §  3,  act  June  30,  1906,  c.  3934,  34  Stat.  815. 


274 


CHAPTER  3. 

THE  CIRCUIT  COURT  OF  APPEALS. 

§  69.  References  to  other  code  sections  and  matters  not  herein  treated. 

§  70.  Creation  and  organization. 

§  71.  Seal,  writs,  process  and  procedure. 

§  72.  Power  to  establish  rules. 

§  73.  .Judges  who  may  constitute  the  court. 

§  74.  What  judge  shall  preside. 

§  75.  When  district  judges  may  serve. 

§  76.  Judge  trying  cause  below,  disqualified. 

§  77.  Appellate  jurisdiction  of  circuit  court  of  appeals. 

§  78.  Appeal  from  interlocutory  receivership  or  injunction  orders  or  decrees. 

§  79.  Appeals  from  circuit  court  decisions  reviewing  revenue  decisions  of  the 

board  of  general  appraisers. 
§  80.  Appeal  from  appellate  court  of  Indian  Territory. 
§  81.  Appeals  from  Territorial  supreme  courts. 
§  82.  Appeal  from  district  court  of  Alaska. 

§  83.  from  interlocutory  injunction  orders  of  Alaska  district  court. 

§  84.  Decision  on  appeal  from  Alaska  final. 

§  85.  Appeals  from  Hawaii  district  court. 

§  86.  Appellate  jurisdiction  in  bankruptcy. 

§  87.  In  trademark  cases. 

§  88.  Appeal  from  United  States  court  in  China. 

§  69.     References  to  other  code  sections  and  matters  not  herein 
treated. 
Elsewhere  in  this  code  will  be  found  provisions  respecting  the 
clerks  and  marshals  of  the  circuit  court  of  appeals;^  provisions  as 
to  terms  of  court  and  where  held  •-  and  as  to  the  nine  circuits  f 
as  to  costs^  and  fees  f  as  to  time  for  taking  appeal  f  as  to  expenses 
of  judges  -^  as  to  court  rooms  for  circuit  courts  of  appeals  f  and  as 
to  election  of  forum  of  review  between  Supreme  Court  and  circuit 
court  of  appeals.'' 
Author's  section. 

iPost.  §§  ,563,  016.  sPost,  §§  1905,  1906. 

2Post.  §  309,  et  seq.  7Post.  §  474. 

^iPost,  §  255.  spost.  §  312. 

<Post,  «§  1848,  1854.  et  passim.  sAnte,  §  42.W]-[<3d] 
sPost,  §§  709.  710. 

275 


§  70  THE    CIRCUIT    COURT    OF    APPEALS.  [Code  Fed. 

§  70.     Creation  and  organization. 

There  is  hereby  created  in  each  circuit  a  Circuit  Court  of  Appeals, 
which  shall  consist  of  three  judges,  of  whom  two  shall  constitute  a 
quorum,  and  which  shall  be  a  court  of  record  with  appellate  juris- 
diction, as  is  hereafter  limited  pnd  established. 

Part  of  §  2,  act  Mar.  3,  1891,  c.  517,  26  Stat.  826,  U.  S.  Ck)mp.  Stat.  1901, 
p.  547. 

The  remaining  portion  of  the  above  section  is  contained  in  the  next  code 
section.ii  The  circuit  court  of  appeals  act  of  1891  effected  a  radical  change 
in  the  scheme  of  Federal  appellate  jurisdiction.  By  §  4  it  abolished  the 
appellate  powers  formerly  exercised  by  the  circuit  court  over  the  district 
court.  It  made  complete  provision  for  a  distribution  of  Federal  appellate 
jurisdiction  over  the  Federal  trial  courts  by  dividing  it  between  the  Su- 
preme Court  and  the  new  tribunal.  The  old  laws  governing  appeal  from  the 
district  and  circuit  courts  were  altogether  superseded  and  questions  of  ap- 
pellate jurisdiction  from  those  courts  are  governed  by  the  law  of  1891.1- 
Circuit  courts  of  appeals  were  established  to  facilitate  the  prompt  dis- 
position of  cases  in  the  Supreme  Court  and  to  relieve  it  from  the  oppressive 
burden  of  general  litigation,  which  impeded  the  examination  of  cases  of  pub- 
lic concern,  and  operated  to  the  delay  of  suitors.is  The  circuit  court  of 
appeals  is  not  a  court  in  or  for  any  district,  but  for  the  entire  circuit,  and 
is  not  made  such  by  fact  that  a  pending  case  is  from  a  particular  district 
of  the  circuit. 14  It  has  no  extraterritorial  jurisdiction  to  issue  habeas 
corpus  or  other  writ  outside  of  the  circuit.i5  Its  jurisdiction  is  exclusively 
appellate.16 

§  71.     Seal,  writs,  process  and  procedure. 

Such  court  [the  circuit  court  of  appeals]  shall  prescribe  the  form 
and  style  if  its  seal  and  the  form  of  writs,  and  other  process  and 
procedure  as  may  be  conformable  to  the  exercise  of  its  jurisdiction 
as  shall  be  conferred  by  law. 

Part  of  §  2,  act  Mar.  3,  1891,  c.  517,  26  Stat.  826,  U.  S.  Comp.   Stat. 
1901,  p.  547. 

The  other  portion  of  the  above  provision  is  contained  in  the  preceding 
code  section.  17  By  §  12  of  the  same  act  the  court  is  given  the  powers 
specified  in  R.  S.  §  716,  as  to  the  issue  of  writs. is  By  rule  two  of  the 
circuit  court  of  appeals  rules  it  is  provided  that  "the  seal  shall  contain  the 

iiPost,  §  71.  S.   524.   42  L.   ed.   1130,    18  Sup.  Ct. 

12 Ante,  §  37.  Rep.  701. 

i3ln  re  Woods,  143  U.  S.  202,  36  L.  isin  re  Boles,  48  Fed.  75.  1   C.  C 

ed.  125,  12  Sup.  Ct.  Rep.  417;     Lau  A.  48. 

Ow  Bew  V.  United  States.  144  U.  S.  isWTiitnev  v.  Dick,  202  U.  S.  132, 

55,   36  L.  ed.  340,   12  Sup.  Ct.  Rep.  50  L.  ed.  963.  26  Sup.  Ct.  Rep.  584. 

517.  17 Ante,   §  70. 

i4United  States  V.  Winston,  170  U.  isSee  post,  §   842. 

276 


Procedure]  WHICH    JUDGE    SHALL    PRESIDE.  §   74 

words  "United  States"  on  tlie  upper  part  of  the  outer  edge,  and  the  words 
"Circuit  Court  of  Appeals"  on  the  lower  part  of  the  outer  edge,  running  from 

left  to  right,  and  the  words  " Circuit"  in  two  lines,  in  the  center,  with 

a  dash  beneath.  1 9  , 

§  72.     Power  to  establish  rules. 

The  [circuit]  court  [of  appeals]  shall  have  power  to  establish 
all  rules  and  regulations  for  the  conduct  of  the  business  of  the 
court  within  its  jurisdiction  as  conferred  by  law. 

Part  of  §  2,  act  Mar.  3,  1891,  c.  517,  26  Stat.  826,  U.  S.  Comp.  Stat.  1901, 
p.  547. 

The  power  of  courts  to  establish  rules  and  the  provisions  oi  law  govern- 
ing its  exercise  are  discussed  alse where.  20  A  set  of  rules  for  the  circuit 
courts  of  appeals  was  promulgated  by  the  supreme  court  after  the  creation 
of  the  new  tribunal,  which  is  still  with  modifications,  the  basis  of  the  rules 
in  the  different  circuits. 1 

§  73.     Judges  who  may  constitute  the  court. 

The  chief  justice  and  the  associate  justices  of  the  Supreme  Court 
assigned  to  each  circuit,  and  the  circuit  judges  within  each  circuit, 
and  the  several  district  judges  within  each  circuit,  shall  be  com- 
petent to  sit  as  judges  of  the  circuit  court  of  appeals  within  their 
respective  circuits  in  the  manner  hereinafter  provided. 

Part  of  §  3,  act  Mar.  3,  1891,  c.  517,  26  Stat.  827,  U.  S.  Comp.  Stat.  1901, 
p.  548. 

The  portion  of  the  above  provision  following  the  foregoing  is  contained  in 
the  next  code  section. s  The  provision  requiring  an  assignment  of  the 
Supreme  Court  justices  to  the  several  circuits  is  given  elsewhere.*  This 
provision  does  not  permit  a  circuit  or  district  judge  to  act  as  member  of 
the  court  in  any  other  circuit  than  that  for  which  he  is  appointed. 

§  74.     Which  judge  shall  preside. 

In  case  the  chief  justice  or  an  associate  justice  of  the  Supreme 
Court  should  attend  at  an}'  session  of  the  circuit  court  of  appeals 
he  shall  preside,  and  the  circuit  judges  in  attendance  upon  the 
court  in  the  absence  of  the  chief  justice  or  associate  justice  of  the 
Supreme  Court  shall  preside  in  the  order  of  the  seniority  of  their 
respective  commissions. 

Part  of  §  3,  act  Mar.  3,  1891,  c.  517.  26  Stat.  827,  U.  S.  Comp.  Stat.  1901, 
p.  548. 

i9See  rules  as  printed  in  the  Ap-  iSee  post,  p.  804. 

pendix.  3 Post,  §  74. 

20Post,  §§  801-804.  4Post.  §  101. 

277 


§   75  THE    CIRCUIT    COURT    OP    APPEALS.  [Code  Fed. 

The  next  preceding  portion  of  the  above  provision  is  contained  in  the 
preceding  code  section.^  In  recent  year  the  justices  of  the  Supreme  Court 
have  participated  very  much  less  frequently  than  formerly,  in  the  de- 
liberations of  the  inferior  Federal  courts. 

§  75.     When  district  judges  may  serve. 

In  case  the  full  court  at  any  time  shall  not  be  made  up  by  the 
attendance  of  the  chief  justice  or  an  associate  justice  of  the  Supreme 
Court  and  circuit  judges,  one  or  more  district  judges  within  the 
circuit  shall  be  competent  to  sit  in  the  court  according  to  such  order 
or  provision  among  the  district  judges  as  either  by  general  or  par- 
ticular assignment  shall  be  designated  by  the  court. 

Part  of  §  3,  act  Mar.  3,  1891,  c.  517,  2G  Stat.  827,  U.  S.  Comp.  Stat.  1901, 
p.  548. 

The  remainder  of  the  above  clause  is  contained  in  the  next  code  section.^ 
There  are  now  three  or  more  circuit  judges  in  every  circuit  except  the 
fourth.  8  It  is  generally  customary  to  call  upon  one  or  more  district 
judges  to  attend  at  a  session  of  the  circuit  court  of  appeals,  calling  first  the 
one  having  seniority  of  appointment  and  thereafter  the  others  in  turn. 
It  is  competent  for  three  regularly  designated  district  judges  to  hold  the 
circuit  court  of  appeals  in  the  absence  of  Supreme  and  circuit  court  judges.9 

§  76.     Judge  trying  cause  below,  disqualified. 

N"o  justice  or  judge  before  whom  a  cause  or  question  ma}''  have 
been  tried  or  heard  in  a  district  court,  or  existing  circuit  court, 
shall  sit  on  the  trial  or  hearing  of  such  cause  or  question  in  the  cir- 
cuit court  of  appeals. 

Part  of  §  3,  act  Mar.  31,  1891,  c.  517,  26  Stat.  827,  U.  S.  Comp.  Stat. 
1901,  p.  548. 

The  purpose  of  this  enactment  was  to  require  the  circuit  court  of  appeals 
to  be  constituted  of  judges  uncommitted  and  uninfluenced  by  having  formed 
or  expressed  an  opinion  in  the  court  of  first  instance,  n  A  judge  who  has 
heard  a  cause  below  on  the  merits  is  clearly  disqualified  from  hearing  upon 
review  any  question  in  that  cause  involving  in  any  degree,  matter  upon 
which  he  had  occasion  to  pass  below.  Xot  only  does  the  provision  dis- 
qualify from  sitting  in  direct  review  of  a  decision  below,  but  also  probably 
disqualifies  a  judge  who  has  once  heard  the  cause  upon  law  or  fact  from 
sitting  in  review  of  any  question  arising  in  that  same  cause.i2     Where  a 

sAnte,  §  73.  trict  judges  to  hold  the  court.     See 

7Post,   §   76.  rules  in  appendix. 

sPost,  §  102.  iiMoran  v.  Dillingham.  174  U.  S. 

sPeters   v.   Hanger.   136   Fed.    181,  153,  43  L.  ed.  930,   19  Sup.  Ct.  Pep. 

69  C.  C.  A.  197.     In  the  fifth  circuit  620. 

there  is  a  provison  in  C.  C.  A.  Rule         i2Moran  v.  Dillingham,  174  U.  S. 

xxxvi    for    the    assignment    of    dis-  153,  43  L.  ed.  930,  19  Sup.  Ct.  Rep. 

278 


Procedure]  APPELLATE    JURISDICTION.  §  77   [a] 

disqualified  judge  sits  in  the  circuit  court  of  appeals,  certiorari  to  review 
that  decision  and  quash  it  if  the  disqualification  is  established,! 3  or  an 
order  to  show  cause  why  certiorari  should  not  issue,i*  is  a  more  appropriate 
and  decorous  form  of  relief  than  mandamus  to  the  trial  court  to  disregard 
the  mandate  from  the  circuit  court  of  appeals.  R.  S.  §  61415  which 
governed  the  conduct  of  a  district  judge  upon  appeal  to  the  circuit  court 
from  his  decision  and  which  is  no  longer  in  force  since  the  appellate  powers 
of  the  circuit  court  have  been  abolished,  permitted  the  district  judge  to  as- 
sign the  reasons  for  his  decision,  but  not  to  vote. 

§  77.     Appellate  jurisdiction  of  circuit  court  of  appeals. 

The  circuit  courts  of  appeals  established  by  this  act  shall  exer- 
cise appellate  jurisdiction  to  review'^"^  by  appeal  or  by  writ  of 
QPj.Qp[b]  gj^ai  decision'^'^^  in  the  district  court  and  the  existing  cir- 
cuit courts  in  all  casesi^^i  other  than  those  provided  for  in  the  pre- 
ceding section  of  this  act,  [i.  e.  in  all  cases  except  where  the  juris- 
diction of  the  court  is  in  issue,  prize  and  capital  cases,  cases  involv- 
ing construction  or  application  of  the  Federal  Constitution,  validity 
of  a  Federal  law,  validity  or  construction  of  a  treaty,  or  the  validity 
of  a  State  law  or  Constitution  challenged  as  violating  the  Federal 
Constitution^^]  unless  otherwise  provided  by  law,"^'^  and  the  judg- 
ments or  decrees  of  the  circuit  courts  of  appeals  shall  be  final  in  all 
cases  in  which  the  jurisdiction  is  dependent  entirely  upon  the  op- 
posite parties  to  the  suit  or  controversy,  being  aliens  and  citizens 
■of  the  United  States  or  citizens  of  different  States  i^^^  also  in  all 
cases  arising  under  the  patent  laws,"^^^  under  the  revenue  laws,^'^ 
and  under  the  criminal  laws^^^^"^  and  in  admiralty  cases. ^''^  .  . 
.  In  all  cases  not  hereinbefore,  in  this  section,  made  final  there 
shall  be  of  right  an  appeal  or  writ  of  error  or  review  of  the  case  by 
the  Supreme  Court  of  the  United  States  where  the  matter  in  con- 
troversy shall  exceed  one  thousand  dollars  besides  costs. ^'^ 

Part  of  §  6,  act  Mar.  .3,  1891,  c.  517,  20  Stat.  828,  U.  S.  Comp.  Stat.  1901, 
p.  549,  550. 

[a]     Cross-references. 
The  omitted  portions  of  the  section  deal  with  the  certifying  of  questions 

<520.     The  question  whether  a  judge  153,  43  L.  ed.  930,  19  Sup.  Ct.  Rep. 

was  competent  to   sit  on   an  appeal  620. 

from   an   order  dissolving   his   order        1 4 American  C.  Co.  v.  Jacksonville, 

appointing  a    receiver    is    raised   in  T.  &  K.  W.  Ry.   148  U.  S.  372,  387, 

American  C.  Co.  v.  Jacksonville,  etc.  37  L.  ed.  492,  *13  Sup.  Ct.  Rep.  758. 
Ry.  148  U.  S.  372,  387,  37  L.  ed.  492,  15U.  S.  Comp.  Stat.  1901,  p.  494. 
13  Sup.  Ct.  Rep.  758.  i6See  ante,  §  42. 

i3Moran  v.  Dillingham.  174  U.  S. 

279 


§  77   [b]  THE   CIRCUIT   COURT  OF  APPEALS.  [Code  Fed. 

in  cases  made  final  in  the  circuit  court  of  appeals  to  the  Supreme  Court  for 
instruction;!'?  the  review  of  such  cases  by  certiorari  in  the  Supreme 
Court;  18  and  the  time  for  taking  appeal  to  the  Supreme  Court  under  the 
last  clause.  19 

[b]     Writ  of  error  or  appeal. 

A  writ  of  error  brings  up  matters  of  law  only;  an  appeal,  unless  ex- 
pressly restricted,  brings  up  both  law  and  fact.i  The  distinction  between 
actions  at  law  and  suits  in  equity  is  uniformly  obser^'ed  in  the  Federal 
courts; 2  and  in  the  former  cases  and  in  criminal  cases,  the  review  is  al- 
ways by  writ  of  error,3  even  though  the  act  of  Congress  speak  loosely 
of  appeal  and  not  error.4  The  proper  method  of  reviewing  a  judgment  in 
an  action  at  law  is  by  writ  of  error,  with  citation  to  adverse  parties. 5 
An  application  for  a  writ  of  jnandamus  is  reviewable  only  by  a  writ  of 
error,  not  by  appeal. 6  The  writ  of  habeas  corpus  does  not  perform  the 
office  of  a  writ  of  error  or  an  appeal  in  respect  to  the  proceedings  com- 
plained of,  if  in  such  proceedings  the  court  had  jurisdiction  of  the  subject- 
matter  and  the  person.'*  An  order  imposing  a  fine  for  contempt  for  vio- 
lation of  an  injunction  is  to  be  regarded  as  a  judgment  in  a  criminal  case 
and  is  reviewable  upon  a  writ  of  error  and  not  by  appeal. 8  An  action 
brought  against  the  United  States  by  a  supervisor  of  elections  to  recover 
items  disallowed  by  the  treasury  department  is  an  action  at  law  and  is 
reviewable  only  on  a  writ  of  error,  and  not  by  appeal.9  Judgments  of  the 
circuit  courts  in  suits  against  the  United  States,  under  the  act  of  March 
3,  1887,  are  reviewable  either  by  writ  of  error  or  appeal. lo  A  petition 
filed  in  the  United  States  circuit  court  by  a  clerk  to  recover  fees  is  an 
action  at  law,  and  the  judgment  can  only  be  reviewed  by  writ  of  error. n 
A  proceeding  upon  habeas  corpus  is  properly  removed  from  the  circuit 
court  of  appeals  by  appeal,  and  not  by  writ  of  error.i2  But  writ  of  error  is 
t  he  proper  mode  of  reviewing  a  committment  for  contempt  of  an  injunction 
order.  13 

iTAnte,  §  40.  sNelson    v.    Huidekoper,    66    Fed. 

isAnte,  §  41.  616,  13  C.  C.  A.  658. 

i9Pn^t's  iq04  6Muhlenberg  Co.  v.  Dyer,  65   Fed. 

^        '  ^    r.  ;      ^     ,.,  TT   o    nrc  634,  13  C.  C.  A.  64. 

iDower  v.  Richards,  151  U.  S   658,  .-^^         ^^  Lennon,  64  Fed.  3i20,  12 

38  L.  ed.  305,  14  Sup.  Ct.  Rep.  452.  ^   q   ^^  jg^ 

2Hume  V.  United  States,  118  Fed.  '  sGould    v.    Sessions,    67    Fed.    163, 

689,  55  C.  C.  A.  4^7.     Post,  §  799.  14  C.  C.  A.  36G;    Bessette  v.  W.  B. 

sDower  v.  Richards,  151  U.  S.  658,  Conkey    Co.    194    U.    S.    324,    48    L. 

b8  L.  ed.  305,  14  Sup.  Ct.  Rep.  452;  ed.  997,  24  Sup.  Ct.  Rep.  665. 

Nelson   v.   Huidekoper,   66   Fed.   616,  sUnited  States  v.  Tinsley,  73  Fed. 

13  C.  C.  A.  658;    Muhlenberg  Co.  v.  369,  19  C.  C.  A.  515. 

Dyer,  65   Fed.   634,   13  C.   C.  A.   64;  lOUnited    States   v.   Ady,   76    Fed. 

Stevens  v.  Clark,  62  Fed.  321,  10  C.  359,  22  C.   C.  A.  223. 

C.  A.  379.  iiUnited  States  v.  Fletcher,  60  Fed. 

4De  Lemos    v.    United  States,    107  53,  8  C.  C.  A.  453. 

Fed.  131,  46  C.  C.  A.  196;   Elliott  v.  i2Kino-v.  McLlean  Asylum,  64  Fed. 

Toeppner,    187   U.   S.   327,   47   L.   ed.  331.  12  C.  C.  A.   145,  26  L.R.A.  784. 

200,  23  Sup.  Ct.  Rep.  133.     See  post,  isBessette  v.  Conkey,  133  Fed.  165, 

§  1886.  66  C.  C.  A.  291. 

280 


Procedure] 


APPELLATE    JURISDICTION. 


§  77    [c] 


[cj     Scope  of  review — discretionary  matters  not  reviewable. 

The  right  of  review  in  the  appellate  courts  of  the  United  States  is  limited 
to  questions  of  law  appearing  on  the  face  of  tlie  record  and  does  not  extend 
to  matters  of  discretion. 1 4  An  appeal  will  not  lie  in  a  contempt  proceeding 
instituted  for  the  protection  of  the  property  of  a  receiver.is  There  may  be 
an  appeal  from  an  award  of  costs  when  the  force  of  a  statute  or  some 
positive  rule  of  law  is  involved,  though  it  concerns  only  costs.is  An  award 
of  costs  within  the  discretion  of  the  court  below  will  not  be  reviewed  on 
appeal,  except  in  case  of  grave  and  manifest  abuse. !■?  A  refusal  to  allow  an 
amendment  of  the  complaint  is  within  the  discretion  of  the  trial  court  and 
will  not  be  reviewed,is  A  motion  for  a  continuance  is  not  reviewable  by 
the  circuit  court  of  appeals. 1 9  A  refusal  to  set  aside  a  verdict  as  against 
the  weight  of  evidence,  is  not  reviewable.2  0 

An  order  granting  or  refusing  a  new  trial  is  not  reviewable. i  While  the 
denial  of  the  motion  for  a  new  trial  is  not  reviewable,  yet  the  exclusion 


i^Duncan  v.  Atchison  T.   &   S.   F.  26:   Holder  v.  United  States,  150  U. 

Rv.  Co.  72  Fed.  808,  19  C.  C.  A.  202;  S.  91,  37  L.  ed.  1010.  14  Sup.  Ct.  Rep. 

Dietz  V.   Lymer,   61    Fed.   792,   10  C.  10;  Bucklin  v.  United  States.  159  U. 

C.  A.  71 ;    Seymour  v.  Malcolm  Mc-  S.  682,  40  L.  ed.  305,  16  Sup.  Ct.  Rep. 

Donald   Lumber   Co.   58   Fed.    957,   7  182;Smith    v.    State    of    Mississippi, 

C.   C.   A.    593;     Pittsburg    Wire   Co.  162  U.  S.  592,  40  L.  ed.  1082,  16  Sup. 

V.  Roberts,  71   Fed.  706,  18  C.  C.  A.  Ct.    Rep.    900;     Wheeler   v.    United 

302;      The     Florence,   71     Fed.     527;  States.  159  U.  S.  523,  40  L.  ed.  245, 

Southern   Pac.   Co.   v.   Earl,   82   Fed.  16  Sup.  Ct.  Rep.  93;  Sigafus  v.  Por- 

690,  27  C.  C.  A.  185;    Farmer's  Loan  ter,    84    Fed.    430,    28   C.    C.   A.    443; 

&  T.  Co.  V.  Mc€lure,  78  Fed.  209,  24  Citv  of  Lincoln  v.  Sun  Vapor  Street 

C.    C.    A.    64;      Goldsby    v.    United  U^ht   Co.    59   Fed.    756,    8   C.   C.   A. 

Slates,  160  U.  S.   70,  40  L.  ed.  343,  253;     Richmond   Rv.   &   Elee.   Co.   v. 

16  Sup.  Ct.  Rep.  216;  Isaacs  V.  United  Dick.  52   Fed.   379,^3   C.   C.   A.   149; 

States,  159  U.  S.  487,  40  L.  ed.  229,  Morning  Journal  Assn.  v.  Rutherford, 

16  Sup.  Ct.  Rep.  51;  Drexel  v.  True,  51  Fed.  513,  16  L.R.A.  803,  2  C.  C.  A. 

74  Fed.  12,  20  C.  C.  A.  265.  354;    Smith  v.  Sun  Printing  &  Pub. 

i5King  V.  Wooten,  54  Fed.  612,  4  Assn.   55   Fed.    240,   5   C.   C.    A.   91; 

C.  C.  A.  519.  Woodburv  v.   Shawneetown,  74  Fed. 

i6The    City    of    Augusta,    80    Fed.  205,  20  C.   C.   A.  400;    The  Natchez, 

297,  25  C.  C.  A.  430.   "  78  Fed.  183,  24  C.  C.  A.  49;    Willis 

i^Clarke  v.  Richmond  &  W.   P.  I.  v.  Board  of  Commrs.  86  Fed.  872,  30 

Ry.  Co.  62  Fed.  328.  10  O.  C.  A.  387;  C.    C.    A.   445;     Xederland    Life   Ins. 

Blanks  v.  Klein,  78  Fed.  395,  24  C.  Co.  v.  Hall,  86  Fed.  741,  30  C.  C.  A. 

C.  A.  144;    Tvler  Min.  Co.  v.  Sween-  363;     Atlas   Distilling  Co.   v.   Rhein- 

ey,  79  Fed.  277,  24  C.  C.  A.  578.  strom,  86  Fed.  244,  30  C.  C.  A.   10: 

isWatts   V.   Weston,  62   Fed.    136,  Luitweiler  v.  United  States,  85  Fed. 

10  C.  C.  A.  302.  957,   29  C.   C.   A.   504;  Zimpelman   v. 

isRichniond  Railway  &  Elee.  Co.  v.  Hipwell.  54  Fed.  848,  4  C.  C.  A.  009; 

Dick,  52   Fed.   379,   3  C.   C.   A.   149;  Northern  Pac.  Ry.  Co.  v.  Charless.  51 

Davis   V.  Patrick,   57   Fed.   909,  6  C.  Fed.  502.  2  C.  C.  A.  380;    Southwest- 

C.  A.  632.  ern    Virginia   Imp.    Co.   v.    Frari,    58 

20O'Donohue  v.  Bruce.  92  Fed.  858,  Fed.  171,  7  C.  C.  A.  149;   Little  Jo- 

35  C.  C.  A.  52.  sephine  M.  Co.  v.  Fullerton.  58  Fed. 

iReagan  v.  United  States,   157  U.  521.    7    C.    C.   A.    340;     Edge    IMoore 

S.  .301.  39  L.  ed.  709,  15  Sup.  Ct.  Rep.  Bridge  Works  v.  Fields,  58  Fed.  173, 

610;   Blitz  V.   United  States,   153  U.  7  C.  C.  A.  152;    Alexander  v.  United 

S.  308,  38  L.  ed.  725,  14  Sup.  Ct.  Rep.  States,  57   Fed.  928.  6  C.  C.  A.  602; 

924;  Moore  v.  United  States,  150  U.  Condran  v.  Chicago  M.  &  St.  P.  Rv. 

S.  57,  37  L.  ed.  996,  14  Sup.  Ct.  Rep.  Co.  67  Fed.  522,   14  C.  C.  A.  506,  28 

281 


ii   77    [d]  THE    CIRCUIT    COURT    OF    ArPEALS.  [Code  Fed. 

of  affidavits  on  such  motion  may  be  reviewed  as  to  the  question  of  their 
admissibility.  2  When  a  trial  court  refuses  to  consider  a  ground  urged  for 
a  new  trial  for  the  reason  that  it  considers  it  has  no  power  to  do  so,  its 
refusal  may  be  assigned  as  error.  3 

[dj     Finality  of  decision  as  necessary  to  right  of  appeal. 

The  appellate  jurisdiction  of  the  circuit  courts  of  appeals  is  restricted  to 
the  review  of  final  judgments  and  decrees,5  excepting  interlocutory  orders 
relating  to  injunctions  and  receivers. «  A  decree  of  a  Federal  court  is  final 
for  the  purposes  of  an  appeal,  when  it  ends  the  litigation  on  the  merits,  so 
that  if  affirmed,  nothing  would  be  left  to  the  trial  court  but  to  execute  it.T 
The  circuit  court  of  appeals  cannot  give  finality  to  a  decree  of  the  circuit 
court  which  was  not  final  when  entered  of  record  in  the  circuit  court. ^ 
One  portion  of  a  decree  may  be  final,  and  for  that  reason  appealable,  while 
the  remainder  may  be  interlocutory,  and  not  appealable.9  A  decree  may  be 
a  final  appealable  decree,  although  if  no  appeal  be  taken  a  rehearing  or  bill 
of  review  would  be  available  remedies  in  the  court  of  original  jurisdiction.! » 
A  decree  of  the  circuit  court  setting  aside  the  subpcena  and  dismissing  the 
bill  of  complaint  as  against  one  of  the  defendants  because  of  lack  of  juris- 
diction over  the  person  of  such  defendant  is  not  a  final  decree. n  A  decree 
dissolving  a  partnership,  "enjoining  until  the  final  decree  in  this  suit"  botii 
parties  from  disposing  of  the  partnership  property,  and  directing  the  taking 
of  testimony,  is  not  a  final  appealable  decree.i2  Neither  is  an  order  of  the 
circuit  court  denying  the  petition  of  nonresident  creditors  of  an  insolvent 
foreign  corporation  to  be  made  formal  parties. is  An  order  dismissing  two 
or  three  sued  on  a  joint  obligation,  because  not  served  with  process,  is  not 
a   final  order  from  which  an  appeal  lies.i*     A  decree  made  after  a  final 

L.R.A.     749;     Jefferson     H.     Co.    v.        sRobinson   v.  Belt,  56  Fed.   328,  5 

Warren,   128   Fed.   565,   63   C.   C.   A.  C.  C.  A.  521. 
193.  6  See  post,  §  78. 

2Mattox  V.  United  States,   146  U.        ^Talley   v.    Curtain.   58   Fed.   4.   7 

S.    140,   36   L.    ed.    917,    13    Sup.    Ct.  CCA.  1;  Morgan  v.  Thompson,  124 

Rep.  50.  Fed.  204.  59  C.  C.  A.  672. 

3Felton     v.     Spiro,     78     Fed.     576,        sStandard    Elevator    Co.   v.    Crane 

24  C  C  A.  321;  Emanuel  v.  Gates,  El.  Co.  76  Fed.  767,  22  C.  C.  A.  549. 
53  Fed.  772,  3  C  C.  A.  663;    Fitzsim-         sStandard    Elevator    Co.   v.    Crane 

mons  V.  United  States,  .54  Fed.  812,  4  El.  Co.  76  Fed.  767,  22  C  C  A.  549. 
C  C  A.  589;    Middlesex  Banking  Co.        loStandard  Elevator  Co.  v.  Crane, 

V.  Smith,  83  Fed.  13,3,  27  C.  C.  A.  El.  Co.  76  Fed.  767,  22  C.  C  A.  549. 
485;     Rhodes    v.    United    States,    79        nHohorst    v.     Hamburg-American 

Fed.    740,   25   C.   C   A.    186;     Phillip  Packet  Co.   148  U.  S.  262.  37  L.  ed. 

Schneider    B.    Co.    v.    American    Ice  444,   13  Sup.   Ct.   Rep.  590. 
Mach.   Co.   77   Fed.    138,  23  C   C   A.        i2Ries   v.  Henderson,  78  Fed.  515, 

89;     Supreme  Lodge    of    K.  of  P.  v.  24  C  C.  A.  194. 

Hill,   76   Fed.   468.'  22  C.    C   A.   280;         i^.Jones   v.   Sands,  79  Fed.   913,  25 

Morris  v.   Canda,  80  Fed.  739,  26   C  C  C.  A.  233. 

C  A.  128;    Prichard  v.  Budd,  76  Fed.         i4Beck  &  Pauli  Lith.  Co.  v.  Wacker 

710,  22  C.  C  A.  .504;    Criner  v.  Ma-  B.  B.  &  M.  Co.  76  Fed.  10,  22  C.  C. 

thews,  67  Fed.  945,   15  C.  C  A.  93;  A.  11. 
Berry  v.  Seawell,  65  Fed.  742,  13  C 
C.  A.  101. 

282 


Procedure]  APPELLATE   JURISDICTION.  §   T7   [d] 

hearing  on  the  merits,  declaring  infringement  of  a  trademark,  awarding 
a,  perpetual  injunction,  and  referring  the  cause  to  a  master  for  an  account- 
ing, is  not  a  final  decree.is  An  order  allowing  the  amendment  of  a  bill  of 
exceptions  after  the  end  of  the  term,  and  after  the  date  fixed  for  settling 
the  same,  is  not  a  final  decision. 1 6  Neither  is  an  order  final  which  grants 
certain  relief  upon  the  party's  complying  with  conditions  specified  in  the 
order ;i"  nor  an  order  reviving  a  suit  in  the  name  of  complainant's  ad- 
ministrator; is  nor  an  order  upon  an  intervening  petition  upon  a  claim  pre- 
sented against  an  insolvent  estate,  which  order  refers  such  claim  to  a 
master.  19  A  decree  awarding  a  perpetual  injunction  in  a  patent  suit,  Init 
with  an  order  of  reference  to  a  master  to  ascertain  the  damages  suffered  by 
infringement,  is  not  a  final  decree.20  A  decree  entered  on  a  full  hearing  on 
the  merits  sustaining  a  patent,  declaring  an  infringement  awarding  a  per- 
petual injunction  and  referring  the  matter  to  a  master  to  ascertain  profits 
is  not  a  final  decree.  1  An  order  appointing  commissioners  to  assess  dam- 
ages for  the  taking  and  condemnation  of  land  is  not  a  final  judgment. 2 
An  order  denying  leave  to  intervene  in  a  cause  is  in  no  sense  a  final  judg- 
ment, and  is  not  appealable. 3  The  dismissal  of  a  petition  for  removal  on 
the  ground  of  local  prejudice  is  not  a  final  judgment.*  A  decree  removing 
the  liquidators  of  a  corporation  because  they  had  interests  adverse  thereto, 
is  not  a  final  decree.  5  An  order  quashing  an  attachment  and  leaving  the 
action  still  pending  in  the  trial  court  is  not  a  final  decision;  6  neither  is 
an  order  discharging  a  previous  order  to  the  marshal  to  seize  and  hold 
property  in  a  suit  to  enforce  an  equitable  chattel  mortgage.'?  An  order 
overruling  a  demurrer  to  an  interplea  whereby  a  third  person  claims  certain 
goods  seized  in  attachment,  is  not  a  final  judgment. 8  An  order  setting 
aside  a  final  decree  at  the  succeeding  term  has  been  held  not  a  final  de- 
cision.9  A  decree  which  declares  certain  claims  of  a  patent  valid  and  in- 
fringed, but  holds  others  invalid,  and  that  yet  others  are  not  infringed  is  not 
a  final  decree  in  respect  to  the  claims  found  invalid  or  not  infringed,  so  as 
to  give  plaintiff  a  right  to  appeal  before  the  case  is  finally  disposed  of  after 
the  accounting.  10  An  order  made  for  the  purpose  of  executing  a  decree 
after  an   appeal   from  such  decree  has  been  perfected,  but  reserving   final 

iSRavmond  v.  Eoval  Baking  Pow-         3Lewis   v.   Baltimore,   &  L.  R.   Co. 

der,  76"Fed.  46.5,  22  "C.  C.  A.  276.  62  Fed.  218,  10  C.  C.  A.  446. 

iSHonev  v.  Chicago.  B.  &  O.  R.  R.         ^Patten  v.  Cillev,  62  Fed.  497. 
Co.  82  Fed.  773,  27  C.  C.  A.  262.  sDufour   v.   Lang,   54   Fed.   i)1.3,   4 

"Stratton   v.  Dewev,   79   Fed.   32,  C.  C.  A.  663. 
24  C.  C.  A.  4.35.             '  eHamner  v.   Scott,  60  Fed.   343,   8 

isMackave  v.   Mallorv,  79  Fed.   1,  C.  C.  A.  655. 
24  C.  C.  a".  420.               '  TRiddle  v.  Hudgins.  58  Fed.  490,  7 

isSecuritv  Trust   Co.   v.   Sullivan,  C.  C.  A.  3.35. 
77  Fed.  778'.  23  C.  C.  A.  458.  sRobinson   v.  Belt.  56  Fed.   329,  5 

20Brush    Electric    Co.   v.    Western  C.  C.  A.  521. 
El.  Co.  76  Fed.  762,  22  C.  C.  A.  543.        SFisher  v.   Simon.   67   Fed.  387.   14 

iLockwood  V.  Wickes,  75  Fed.  118,  C.  C.  A.  443. 
21  C.  C.  A.  257.  loMnrden     v.     Campbell     Printing 

'Luxton  v.  North  River  Bridge  Co.  Press  &   Mfg.  Co.  67  Fed.  810,  15  G. 

147  U.  S.  337.  37  L.  ed.  194,  13  Sup.  C.  A.  26. 
Ct.  Rep.  356. 

ass 


§   77   [d]  THE  CIRCUIT   COURT  OF  APPEALS.  [Code   Fed. 

action  until  a  commissioner  should  report  his  proceedings  to  the  court  is  not 
reviewable.!  Neither  is  a  decree  determining  the  right  of  a  complainant 
to  an  account,  and  settling  the  principles  on  which  an  account  should  be 
taken. 12  A  judgment  is  not  final  Avhile  a  motion  for  a  new  trial  is  pend- 
ing.13 

A  decree  to  be  final  for  the  purposes  of  appeal  must  leave  the  case  in 
such  a  condition  that  if  there  be  an  affirmance  the  lower  court  would  have 
nothing  to  do  but  execute  the  decree  already  entered,  i*  A  decree  which 
substantially  and  completely  determines  the  rights  of  the  parties  is  ap- 
pealable, though  the  main  suit  has  not  reached  a  final  decree.iB  An  order  of 
the  circuit  court  discharging  from  imprisonment  a  defendant  held  under 
execution  against  his  person  upon  a  judgment  in  a  civil  action,  is  final  and 
appealable.16  A  decree  in  admiralty  awarding  libelants  a  definite  sum,  ad- 
judging that  a  maritime  lien  exists  therefor,  and  directing  the  sale  of  the 
vessel  and  payment  of  the  proceeds  into  the  registry  to  await  the  further 
order  of  the  court,  is  a  final  appealable  decree. i^  A  judgment  of  nonsuit 
is  subject  to  review. is  A  judgment  which  denies  the  petition  of  a  re- 
ceiver of  a  corporation  to  have  a  judgment  opened  is  a  final  judgment. 1 9 
So  is  an  order  overruling  a  motion  hj  the  owner  of  a  patent  to  be  dis- 
missed from  a  suit  brought  by  the  licensee,  on  the  ground  that  the 
suit  had  been  brought  without  the  owner's  authority. 20  A  decree  of 
confirmation  of  a  sale  of  property  by  a  receiver  was  final  and  appealable 
where  it  finally  disposed  of  the  possession  and  ownership  of  the  property. 1 
So  a  decree  will  be  considered  as  final  where  it  shows  that  the  court  ad- 
judicated all  the  merits  of  the  case,  leaving  nothing  to  be  further  disposed 
of,  except  to  carry  it  into  effect,  though  by  inadvertence  no  time  was  pre- 
scribed within  which  certain  conveyances  therein  directed  were  to  be  ex- 
ecuted.2  Likewise  a  decree  for  specific  performance,  concluding  all  the 
rights  of  the  parties,  notwithstanding  a  conveyance  which  it  directs  to  be 
made,  is  to  be  afterward  presented  to  the  judges  for  their  approval  of  its 
form  and  terms. s  A  decree  allowing  $5,000  to  complainant's  solicitors  for 
services  and  directing  payment  of  same  out  of  funds  in  a  receiver's  hands, 
in  a  suit  by  a  stockholder  against  a  corporation,  is  pro  tanto  a  final  decree.^ 

iiGunn    v.   Black.   60   Fed.   159,   8  i^The    Eugene,    87    Fed.    1001.    31 

C.  C.  A.  542.  C.  C.  A.  345. 

i2Pittsburgh  C.   &   St.  L.  Ry.   Co.  isKoons  v.  Bryson,  69  Fed.  297,  16 

V.   Baltimore  &  0.   Ry.   Co.   61    Fed.  C.  C.  A.  227. 

705   19  C   C   A   20  iSRust  v.  United  Waterworks  Co. 

i3Ki.,gman  &  Co.  v.  Western  Mfg.  '  ^  F|,d.  129,  17  C.  C.  A.  16. 

Co.  170  U.  S.  675,  42  L.  ed.  1193,  18  ,    ^oRrush    Electric    Co    v    Electric 

Q        Pf    TfcT,    7Qr  limp.  Co.  51  Fed.  557,  2  C.  C.  A.  373. 

&up.  y^i.  itep.   100.  iCity  of  New  Orleans  v   Peake   52 

i^National  Bank  v.  Smith,  156  U.  ^ed    74    "^  C   C    A    k^Q     '       '      ' 

S.  330,  39L.  ed.  441,  15  Sup.  Ct.  Rep.  2Desvergers    v.    Parsons,   60    Fed. 

358.  143,  8  C.  C.  A.  526. 

isCentral  Trust  Co.  v.  Madden.  70  sLong  v.  Max-Avell,  59  Fed.  948.  S 

Fed.  451,  17  C.  C.  A.  236;  Klever  v.  c.  C.  A.  410. 

Seawell,  05  Fed.  373,  12  C.  C.  A.  653.  4Jacksonville,  etc.  Rv.  Co.  v.  Amer- 

leStroheim  v.  Deimel,  77  Fed.  802,  ican  Const.  Co.  57  Fed.  66,  6  C.  C.  A. 

23  C.  C.  A.  467.  249- 

284 


J 


Procedure]  APPELLATE  JURISDICTION.  §  77   [f] 

Orders  finally  dismissing  interpleaders  from  the  suit,  also  dismissing  an 
auxiliary  petition  brought  by  plaintifT  to  enjoin  them  from  enforcing  a  judg- 
ment, and  vacating  an  injunction  previously  granted  thereunder,  embody 
final  decisions  as  to  such  interpleaders. 5  A  decree  ordering  the  dismissal  of 
a  libel,  if  not  amended  within  ten  days,  is  final  for  the  purpose  of  an  ap- 
peal within  that  time  by  libelant.6  A  decree  may  be  final  in  part,  and 
therefore  appealable,  although  the  remainder  is  not  appealable.'?  An  order 
signed  by  the  judge,  and  entered  by  the  clerk  finally  dismissing  defendants, 
and  directing  costs  to  be  taxed,  is  final. s  The  circuit  court  of  appeals  has 
jurisdiction  of  an  appeal  from  a  final  decision  of  a  district  judge  at  chambers 
in  a  habeas  corpus  case,  as  well  as  from  a  final  decision  of  a  district  court. 9 
A  final  decree  is  suspended  by  a  motion  for  rehearing,  and  does  not  take 
effect  and  become  operative  for  the  purposes  of  an  appeal  until  such  motion 
is  overruled.io  A  decree  adjudging  defenses  bad  in  law  and  finding  defend- 
ant liable  for  such  sum  as  might  thereafter  be  found  due,  is  not  final. n 

[e]  All  cases  not  appealable  to  Supreme  Court  direct,  reviewable  in  circuit 
court  of  appeals. 
The  necessary  effect  of  this  provision  was  to  distribute  the  entire  ap- 
pellate jurisdiction.!  2  The  appellate  jurisdiction  of  the  circuit  court  of  ap- 
peals is  not  restricted  by  any  provision  requiring  a  given  value  in  disputei* 
and  is  very  liberal. i*  The  court  has  no  original  jurisdiction.!  5  As  is  else- 
where shown  a  party  is  sometimes  obliged  to  choose  between  an  appeal  to 
the  Supreme  Court  and  to  the  circuit  court  of  appeals.! 6  If  only  a  juris- 
dictional question  is  involved  the  appeal  must  be  to  the  Supreme  Court,!  7 
though  the  existence  of  such  a  question  along  with  others  will  not  preclude 
a  choice  of  the  circuit  court  of  appeals  as  the  forum  of  review  or  preclude  a 
decision  by  it,  of  the  entire  case.!  8 

[f J     "Unless  otherwise  provided  by  law." 
If  construed  as  applying  to  prior  laws  this  clause  would  virtually  defeat 

sStandley  v.  Roberts,  59  Fed.  836,  !3The  Paquete  Habana,   175  U.  S. 

8  C.  C.  A.  305.  683,  44  L.  ed.  320,  20  Sup.  Ct.  Rep. 

eUnited    States   v.   Three   Friends,  290.      But    see   Xorth    A.    T.    Co.   v. 

166  U.  S.   1,  41   L.  ed.   897,   17   Sui..  Smith.  93  Fed.  8,  35  C.  C.  A.  183. 

Ct.  Rep.  495.  i4\Varner  v.  Texas  P.  Ry.  54  Fed. 

'The  Alert,   61    Fed.    113,   9   C.  C.  920,  4  C.  C.  A.  670. 

A.  390.  !5Whitnev  v.  Dick.  202  U.  S.  132, 

sPrcscott,  etc.  Rv.  Co.  v.  Atchison  50  L.  ed.  963,  26  Sup.  Ct.  Rep.  584. 

T.  Co.  84  Fed.  213^,  28  C.  C.  A.  481.  ! 6 Ante,  §  42,[<3]-M'']  §  39. [c] 

9Webb  V.  York,  74  Fed.  753,  21  C.  !THalpin    v.     Amennan.   138   Fed. 

C.  A.  65.  548,    70    C.   C.    A.    462.       See    also 

1  ("Andrews  v.  Thum,  72  Fed.  290,  Fisheries  Co.  v.  Lennen,  130  Fed.  533. 

18  C.  C.  A.  566.  65  C.  C.  A.  79.     But  if  jurisdictional 

!!Guarantee  Co.  v.  Mechanics,  etc.  qustion  l>elow  was  decided  in  appcl- 

T.  Co.  173  U.  S.  586,  4a  L.  ed.  818,  19  lant's  favor  it  cannot  be  objec-ted  that 

Sup.   Ct.  Rep.    551.  the  circuit  court  of  appenls  Imd   no 

!2Lau  Ow  Bew-   v.  United  States,  jurisdiction  on  appeal.    Viqucsney  v. 

144  U.  S.  56,  30  L.  ed.  "40,  12  Sup.  Allen,  131   Fed.  21,  65  C.  C.  A.  259. 

Ct.    Rep.    517;     Badanu-es    v.   C!orf,  !  s See  ante,  §  42.[dl-[dd]-[E] 
63  Fed.  169,  3  C.  C.  A.  491. 

285 


§   77    [g]  THE   CIRCUIT  COURT  OF  APPEALS.  [Code  Fed. 

the  entire  purposes  of  the  new  statute. i  Hence  it  has  been  said  that  it 
refers  to  contemporaneous  and  subsequent  Uiws;2  and  was  inserted  out  of 
abundant  caution  in  order  that  any  qualification  of  the  jurisdiction  in  later 
laws  should  not  be  construed  as  taking  away  the  jurisdiction  conferred  by 
the  above  section  except  when  expressly  so  provided,  s  But  in  the  ninth 
circuit  it  has  been  held  that  the  old  provision  requiring  a  value  of  over 
$50  in  dispute  to  confer  a  right  of  appeal  to  the  circuit  court  in,  admiralty 
is  still  in  force  and  applies  to  appeals  to  the  circuit  court  of  appeals.* 

[g]     Judgment  final  where  jurisdiction  dependent  on  diverse  citizenship. 

A  case  removed  for  local  prejudice  is  one  made  final  in  the  circuit  court 
of  appeals  under  this  section. 6  The  same  is  true  of  a  suit  between  citi- 
zens of  different  States  over  land  grants  from  different  States. 7  It  will  be 
obsei'ved  however,  that  a  controversy  between  a  citizen  and  a  foreign  State 
is  not  among  the  enumerated  cases  made  final  in  the  circuit  court  of  ap- 
peals because  of  the  citizenship  or  character  of  parties,  and  hence  may  be 
carried  by  further  appeal  to  the  Supreme  Court.s  Where  Federal  juris- 
diction arises  because  a  proceeding  is  ancillary  to  another  in  which  diverse 
citizenship  is  the  basis  of  jurisdiction,  appeal  in  the  ancillary  case  is 
governed  by  this  clause  and  final  in  the  circuit  court  of  appeals. 9  Other 
cases  dealing  with  the  question  of  finality  of  the  circuit  court  of  appeals 
decision  are  discussed  elsewhere.io 

[gg] — where  other  ground  of  jurisdiction  apparent  in  plaintiff's  statement. 
It  is  to  be  noted  that  the  statute  makes  judgment  final  only  where  juris- 
diction depends  "entirely"  on  diverse  citizenship.  Hence  it  follows  that  the 
judgment  is  not  final  under  this  section  imless  jurisdiction  is  entirely  de- 
pendent on  diverse  citizenship.  This  is  determined  from  plaintiff's  state- 
ment of  his  cause  in  his  bill  or  declaration.  If  that  shows  other  adequate 
ground  of  jurisdiction  under  accepted  rules,i2   such  as  a  question  arising 

iLau    Ow   Bew   v.    United    States,  ^Stevenson  v.  Fain,  195  U.  S.  165, 

144  U.  S.  47,  36  L.   ed.   343,  2  Sup.  49  L.  ed.   142,  25  Sup.  Ct.  Rep.  6. 

Ct.  Rep.  517;  Louisville  P.  W.  Co.  v.  sColombia  v.  Cauca  Co.  190  U.  S. 

Collector  of  Customs,  49  Fed.  564,  1  524,  47  L.  ed.  1159,  23  ^up  Ct.  Rep. 

C.  C.  A.   371.  704. 

zMason  v.  Pewabic  M.  Co.  153  U.  sAnte,   §  3. 

8.  361.  38  L.  ed.  745,  14  Sup.  Ct.  Rep.  lOAnte,  §  39.[b] 

847;  In  re  Lennon,  150  U.  S.  398,  37  i2Mere    assertion    of    title    under 

L.   ed.    1120,    14   Sup.    Ct.   Rep.    123;  mining  patent  is  not:  Bonin  v.  Giilf 

American  C.  Co.  v.  Jacksonville,  etc.  Co.  198  U.  S.  115,  49  L.  ed.  970.  25 

Ry.  148  U.  S.  383,  37  L.  ed.  486,  13  Sup.  Ct.  Rep.  608;  nor  an  inferential 

Sup.  Ct.  Rep.  758.  alleofation  of  denial  of  due  process: 

3Lau  Ow  Bew,  144  U.  S.  47,  36  L.  Empire,   etc.  M.   Co.  v.   Hanley.   198 

ed.  343,  12  Sup.  Ct.  Rep.  517.  U.  S.  292,  49  L.  ed.  1056,  25  Sup.  Ct. 

4North  A.  T.  Co.  V.  Smith,  93  Fed.  Rep.    691;    nor    suit    for    publishing 

8,  35  C.  C.  A.  183.  manuscript:      Press   P.    Co.   v.   Mon- 

eCochran   v.   Montgomery   Co.    199  roe,  164  U.  S.  112,  41  L.  ed.  367,  17 

U.  S.  260,  50  L.  ed.  182,  26  Sup.  Ct.  Sup.  Ct.  Rep.  40. 
Rep.  58. 

286 


Procedure]  APPELLATE    JURISDICTION.  §   77   [gggl 

under  the  Federal  laws, is  the  case  is  not  within  the  class  here  made  final 
and  may  go  to  the  Supreme  Court  on  a  furtlier  appeal. i4 

In  this  connection,  however,  it  is  necessary  to  distinguish  the  cases  where 
the  other  ground  of  jurisdiction  presents  a  case  properly  appealable  direct 
to  the  Supreme  Court  from  the  circuit  or  district  court.is  Thus,  where  the 
original  pleading  showed  a  case  involving  the  constitutionality  of  a  State 
law  under  the  Federal  Constitution  or  other  question  of  the  type  requiring 
an  appeal  of  the  whole  case  directly  from  the  trial  court  to  the  Supreme 
Court,i6  the  circuit  court  of  appeals  canot  entertain  an  appeal,i7  even 
although  the  original  pleading  also  averred  diverse  citizenship.is 

[ggg]  —  where  a  jurisdictional  question  arises. 

If  a  question  of  the  trial  courts  jurisdiction  is  involved,  §  5  of  the  act  of 
1891  provides  for  certifying  it  directly  to  the  Supreme  Court  for  decision,! 
although  the  party  has  a  right  to  elects  an  appeal  to  the  circuit  court  of 
appeals  on  the  whole  case  if  otherwise  within  §  6,  supra. 3  But  where  the 
trial  court  dismisses  for  want  of  jurisdiction,  the  jurisdictional  question 
will  generally  be  the  only  question  in  the  case,  and  in  that  event  and  in  any 
other  case,  where  only  the  jurisdictional  question  exists,*  it  is  held  that 

131  e.,  a  question  of   construction  this   point   by   statements   in  Carter 

but  not  of  constitutionality  in  which  v.  Roberts,  177  U.  S.  496,  500,  44  L. 

appeal    must    be    direct   to    the    Su-  ed.  863.  20  Sup.  Ct.  Rep.  113,  appar- 

preme   Court    (ante,   §   42,   §   39[c])  ;  ently  declaring  that  the  court  of  ap- 

Florida,  etc.  R.  R.  v.  Bell,  176  U.  S.  peals    has   a   discretion   to    entertain 

321,  44  L.  ed.  486,  20  Sup.  Ct.  Rep.  such  cases:    United  States  v.  Lee  Yen 

399.  Tai,   113  Fed.  46.5,  51   C.  C.  A.  299; 

14 Colorado,   etc.   M.   Co.   v.   Turck,  Pike  P.  P.  Co.  v.  Colorado  Springs, 

150  U.  S.  142,  37  L.  ed.  1030,  14  Sup.  105  Fed.  7,  44  C.  C.  A.  333.     But  the 

Ct.  Rep.  35;  Union  P.  Rv.  v.  Harris,  Carter  case  is  explained  and  qualified 

158  U.  S.  327,  39  L.  ed.  1003,  15  Sup.  in   American    S.    R.    Co.    v.   Xew   Or- 

Ct.    Rep.    843;    Florida,    etc.    Rv.    v.  leans,   181   U.   S.   282,  45  L.   ed.   859, 

Bell,  176  U.  S.  321,  44  L.  ed.  486,  20  21  Sup.  Ct.  Rep.  646. 

Sup.    Ct.     Rep.     399;    Borgmever   v.  isPenn  Mut.   L.   I.   Co.  v.  Austin, 

Idler,   159  U.   S.   413,   40  L.  ed.   199,  168  U.  S.  685,  42  L.  ed.  626,  18  Sup. 

16  Sup.  Ct.  Rep.  34.  Ct.  Rep.  223. 

isAnte,  §  42.  lAnte,  §  42. 

16 Ante,   §   42.  2Ante,  §  42.W] 

1'? Indianapolis  v.  Trust  Co.  83  Fed.  ^if   there  are  other  questions   the 

529,  27  C.  C.  A.  580;   Hubinger  Co.  appeal   may  be  to   the  circuit  court 

V.   Quincy,   etc.   Co.    98    Fed.   897,    39  of    appeals':      Texas    &    P.    R.    R.    v. 

C.   C.   A.  336;    Union  &    P.   Bank   v.  Bloom,  60  Fed.  979.  9  C.  C.  A.  300; 

Memphis,  189  U.  S.  71.  47  L.  ed.  712,  United   States   Freehold,   etc.    Co.   v. 

23  Sup.  Ct.  Rep.  604;  Holt  v.  Indiana  C,allegos,  89  Fed.  769,  32  C.  C.  A.  470; 

Mfg.  Co.  80  Fed.  1,  25  C.  C.  A.  301;  Beck  &  P.  L.  Co.  v.  Wacker,  76  Fed. 

Wright  V.  MacFarlane,  122  Fed.  773,  10,  22  C.  C.  A.  11;  Board  of  Council- 

58    C.    C.    A.    570,   and    cases    cited;  men  v.  Deposit  Bank,  124  Fed.  21,  59 

St.  Clair  Co.  v.  Interstate  S.  &  C.  T.  C.  C.  A.  538;  even  though  the  other 

Co.    110   Fed.   785,   49    C.   C.   A.    169;  questions  are  not  properly  preserved 

Barr  v.  New  Burnswick,  72  Fed.  689,  bv   exception:      Reliable,   etc.    Co.    v. 

19  C.  C.  A.  71;    Owensboro  v.  Owens-  Stahl.  105  Fed.  663,  44  C.  C.  A.  657. 

boro  W.  Works,  115  Fed.  318,  53  C.  4The  Alliance,  70   Fed.  273.   17   C. 

C.  A.  146;    Seattle  v.  Thompson,  114  C.  A.  124;    The  Annie  Faxon,  87  Fed. 

Fed.  96,  52  C.  C.  A.  44.     Some  of  the  963,  31   C.  C.  A.  325;  Manufacturing 

courts   have   been   led   into   error   on  Co.   v.  Barber,  60   Fed.  465,  9  C.  C. 

287 


§   77   [gggg]  THE  CIRCUIT  COURT  OP  APPEALS.  [Code   Fed. 

the  party  cannot  go  to  the  circuit  court  of  appeals,  but  must  take  the 
question  directly  to  the  Supreme  'Court.5  Nor  would  the  circuit  court  of 
appeals  be  the  proper  tribunal  to  mandamus  the  circuit  court  to  take 
jurisdietion.6  It  has  been  held  in  the  second  circuit  that  the  circuit  court 
of  appeals  will  not  consider  the  jurisdictional  question  when  presented  with 
other  questions  on  the  merits. 7 

[gggg]  —  where  Federal  question  arises  during  progress  of  cause. 

Where  a  Constitutional  question  arises  during  the  trial.io  or  by  supple- 
mental pleading,!  1  and  is  not  set  up  in  the  original  pleading,  which  shows 
only  diverse  citizenship,  such  a  case  is  deemed  one  in  which  originally  the 
jurisdiction  depended  entirely  upon  citizenship.  If  the  party  takes  such  a 
case  to  the  circuit  court  of  appeals  its  judgment  is  final  and  not  anpealable; 
nor  can  he  afterwards  take  a  direct  appeal  on  such  l^ederal  question  aris- 
ing during  the  trial  to  the  Supreme  Court,  although  §  5  of  the  acti2  would 
have  so  permitted  in  the  first  instance.13  It  is  a  case  for  election  of 
remedies.ii  The  circuit  court  of  appeals  cannot  decline  to  entertain  an 
appeal  where  jurisdiction  originally  depended  entirely  upon  diverse  citizen- 
ship, because  a  constitutional  question  arose  and  became  controlling  in  the 
case,  suoh  for  instance  as  the  validity  of  a  State  law  vmder  the  Federal 
Constitution.!  5  it  is  not  sufficient  that  a  constitutional  question  might 
have  arisen  if  not  in  fact  raised.!  6 

A.  79;   United  States  v.   Sutton,  47  20  Sup.   Ct.  Rep.   713,   relied  on  by 

Fed.  129,  2  C.  C.  A.  115.  the  judges  of  the  second  circuit.     See 

5 Cabot  V.  Mc:Master,   65  Fed.   533,  also  contra:     Rust  v.  United  W.  Co. 

13  C.  C.  A.  39;   Excelsior  W.  P.  Co.  70  Fed.   129,  17  C.  C.  A.   16;   Balti- 

V.  Pacific  B.  Co.  109  Fed.  497,  48  C.  more  &  0.  R.  R.  v.  Meyers,  62  Fed. 

C.  A.  349;  Dudlev  v.  Board,  103  Fed.  307,  10  C.  C.  A.  485;  The  Presto,  93 

209,  43  C.  C.  A.  184;  Hays  v.  Richard-  Fed.  522,  35  C.   C.  A.  394;    Coler  v. 

son,   121   Fed.  536.  57   C.   C.  A.  598:  Grainger  Oo.74  Fed.  16,20  C.  C.  A.  267. 

Evans,  etc.  Co.  v.  McCaskill,  101  Fed.  i^Ex  parte  Jones,   164  U.   S.   693, 

658,  41  C.   C.  A.  577;    In  re  Aspin-  41  L.  ed.  601,  17  Sup.  Ct.  Rep.  222; 

wall's  Estate,  90  Fed.  675,  33  C.  C.  American  S.  R.  Co.  v.  New  Orleans, 

A.   217;     United    States    v.    Sutton,  181  U.  S.  2S6,  45  L.  ed.  861.  21  Sup. 

47  Fed.  129,  2  C.  C.  A.  115;  Halpin  Ct.  Rep.  646;   Watkins  v.  King,  118 

V.    Amerman,    138    Fed.    548,    70    C.  Fed.  524,  55  C.  C.  A.  390. 

C.   A.   462;     St.   Louis   C.   C.   Co.   v.  !!Third   St.  Ry.  v.  Lewis,   173  U. 

American    L.    Co.    125   Fed.    196,    60  S.  460,  43  L.  ed.  766.  19  Sup.  Ct.  Rep. 

C.  C.  A.  80.  451. 

eUnitcd    States   v    Swan,    65    Fed.  !2See  ante.  §  42. 

647,  13  C.  C.  A.  77:  United  States  v.  i3Caiy  Mfg.  Co.  v.  Acme,  etc.  Co. 

Severens,  71   Fed.  768,  18  CCA.  314.  187  U.  S.  427,  47  L.  ed.  M4,  23  Sup. 

■fUnited  States  v.  Lee  Yen  Tai,  113  Ct.  Rep.   211.      See  also   cases   cited 

Fed.  465,  51  C  C  A.  299;   Sun  P.  &  ante,  §  38.[c] 

P.    Co.    v.    Edwards,    121    Fed.    826,  ! 4 Ante,  §  42.W]-[d(i] 

58    C.    C.   A.    162;    Fisheries    Co.    v.  !5American   S.  R.   Co.  v.  New  Or- 

Lennen.    130    Fed.   534.   65    C    C   A.  leans,   181   U.  S.  277,  45  L.  ed.  859, 

79.     But  see  contra  ante,  §  42W]  and  21  Sup  Ct.  Rep.  646 ;  Columbia  T.  T. 

oases   cited.      And   see   American    S.  v.  Loeb,  179  U.  S.  472,  45  L.  ed.  280, 

R.    Co.   V.    New   Orleans,    181    U.    S.  21     Sup.     Ct.     Rep.    174;    Keyser  v. 

282,  45  L.  ed.  859.  21   Sup.  Ct.  Rep.  Lowell.  117  Fed.  400,24  C  C.  A.  574. 

646,   which   explains    Carter   v.   Rob-  !  eWorld's  C  Exp.  v.  United  States, 

erts,   177   U.    S.   496,   44   L.   ed.   861.  56  Fed.  654,  6  C  C  A.  58. 


Procedure]  APPELLATE    JURISDICTION.  §   T7   [jj] 

[h]     Cases  arising  under  the  patent  laws. 

The  question  when  a  case  is  deemed  to  arise  under  the  patent  laws  has 
already  been  considered  as  it  is  one  of  the  classes  of  cases  in  which  Federal 
jurisdiction  is  made  exclusive.! 8  A  suit  by  the  United  States  to  cancel  a 
patent  for  an  invention  is  not  a  case  arising  under  the  patent  laws,  made 
final  in  the  circuit  court  of  appeals. 1 9  Neither  is  a  suit  to  enjoin  the  col- 
lection of  a  State  tax  on  the  value  of  patent  rights. 20 

[ij     Cases  arising  under  the  revenue  laws. 

The  act  of  1890  providing  for  appeals  to  the  Supreme  Court  from  decisions 
of  the  board  of  general  appraisers  is  superseded  pro  tanto  by  this  clause, 
which  has  the  effect  of  making  such  cases  appealable  to  the  circuit  court 
of  appealsi  and  not  to  the  Supreme  Court.2  The  judgment  of  the  circuit 
court  of  appeals  are  now  final  in  cases  arising  under  the  revenue  laws. 3 

[j]     Cases  arising  under  criminal  laws. 

Since  1897,  the  only  criminal  cases  appealable  direct  from  the  trial  to 
the  Supreme  Court,  are  capital  cases, 5  unless  of  course,  a  treaty  or  consti- 
tutional question  is  involved  conferring  a  right  of  direct  appeal  under  §  5 
of  that  act  of  1891.6  A  writ  of  scire  facias  upon  a  forfeited  recognizance  to 
secure  the  appearance  of  a  person  to  answer  to  a  charge  of  embezzlement 
in  a  case  arising  under  criminal  laws. 7  Proceedings  in  a  criminal  case  are 
not  reviewable  until  after  final  judgment.  8 

tjj] — habeas  corpus  and  contempt  proceedings. 

By  the  act  of  1891  the  circuit  court  of  appeals  has  succeeded  to  the  ap- 
pellate jurisdiction  in  habeas  corpus  formerly  exercised  by  the  circuit  court 
under  R.  S.  §  763.^0  It  has  no  original  habeas  corpus  jurisdiction.!  1  But 
if  a  habeas  corpus  case  presents  a  treaty  or  constitutional  question  of 
the  type  appealable  direct  from  the  trial  to  the  Supreme  Court,!  2  appeal 
should  be  to  that  court  rather  than  the  circuit  court  of  appeals.! 3  And 
if  properly  appealable  to  the  circuit  court  of  appeals  it  is  not  again  appeal- 
able to  the  Supreme  Court.!* 

isAnte,  §  15.[k]  20  Sup.  Ct.  Rep.  993;  Davis  v.  Burke, 

i9United  States  v.  American  Bell  97  Fed.  .501.  38  C.  C.  A.  299. 

Tel.  Co.  159  U.  S.  548,  40  L.  ed.  255,  ^Hunt  v.  United  States,  166  U.  S. 

16  Sup.  Ct.  Rep.  69.  41  L.  ed.  1063,  17  Sup.  Ct.  Rep.  609. 

20Holt  V.  Indiana  Mfg.  Co.  80  Fed.  4'24,  41  L.  ed.  1063,  17  Sup.  Ct.  Rep. 

25,  25  C.  C.  A.  .301.  C09. 

iPost.  §  79.  sWhitworth  v.  United  States.   114 

2Anglo-Californian  Bank  v.  United  ^^d.  302   5^  C.  C.  A.  214 

States,  175  U.  S.  39.  44  L.  ed.  65,  20  loUnited  States  v.  Fowkes,  53  Fed. 

Sup    Ct   Reo    ''0  ^^-  ^  ^-  ^-  *^-  ''^^■^• 

Tw  \.V.     !^'    e  u      ,.^  TT   o    r«    '>a  !! Whitney  v.  Dick,  202  U.  S.  132, 

T    5   a«r"^7-/°^V^^t^  ^■?.  ^^'  ^^  50  L.  cd.  903,  26  Sup.  Ct.  Rep.  584. 

L.  ed.  886,  13  Sup.  a.  Rep.  13.  12 Ante,  §  42. 

CAnte,     §     42.m      Good     Shot     v.  isbavis  v.  Burke,  97  Fed.  501,  38 

United  States,  104  Fed.  257,  43  C.  C.  c.  C.  A.  299. 

A-  5^'5.  '!4Lau   Ow  Bew  v.  United   States, 

SAnte,     §     42.     Motes    v.    United  144  U.  S.  47,  36  L.  ed.  344,   12  Sup. 

States,  178  U.  S.  466,  44  L.  ed.  1153,  Ct.  Rep.  517. 
Fed.  Proc— 19.                                289 


{   77    [k]  THE  riH('UIT  ('OIHT  OF   AITKALS.  [Code   Fed. 

A  contempt  proeecHling  is  sui  goneiii.  though  closely  akin  to  a  criminal 
proceeding.! 5  The  Supreme  Court  has  in  many  cases  denied  its  own  juris- 
diction to  review  a  contempt  proceeding  in  an  inferior  court  upon  appeal 
or  error.  16  But  it  has  recently  sustained  the  jurisdiction  of  the  circuit 
court  of  appeals  to  review  contempt  proceedings  in  the  circuit  court,  under 
its  power  to  review  criminal  cases. i"  And  where  the  contempt  is  by  one 
not  a  party  to  the  suit  below,  writ  of  error  will  lie  from  the  interlocutory 
order  in  contempt  regardless  of  final  judgment  in  the  case  in  which  the 
adjudication  of  contempt  occurred. is  Conflicting  views  have  been  ex- 
pressed as  to  whether  a  contempt  by  a  party  to  the  suit  is  reviewable 
])rior  to  final  judgment  in  the  cause. 19 

[kj     Admiralty  cases. 

A  suit  to  limit  the  liability  of  shipowners  is  deemed  an  admiralty  case, 
liiial  in  the  circuit  court  of  appeals.! 

|l]     Further  appeal  in  other  cases  if  exceeding  one  thousand  dollars. 

This  clause  of  §  6  of  the  act  of  1801  is  considered  in  the  chapter  dealing 
with  the  Siipreme  Court's  jurisdiction. 3  The  effect  of  a  provision  measur- 
ing a  right  of  appeal  by  a  value  in  dispute  is  also  considered  elsewhere.4 
By  reqviiring  a  value  in  dispute  exceeding  one  thousand  dollars,  cases  in- 
volving less  and  cases  not  susceptible  of  pecuniary  estimate,  are  neces- 
sarily made  final  in  the  circuit  court  of  appeals. 

§  78.     Appeal  from  interlocutory  receivership  or  injunction  or- 
ders or  decrees. 

Where,  upon  a  hearing  in  equitv^*^  in  a  district  or  in  a  circuit 
court,  or  by  a  judge  thereof  in  vacation,  an  injunction  shall  be 
granted  or  continued,  or  a  receiver  appointed  by  an  interlocutory 
order  or  decree. '^^'^  in  any  cause'^*'^  an  appeal  may  be  takenf*^^  froii; 

150'Xeal  v.  United  States.  190  U.  Crimiss,    112   Fed.   377.   50    C.   C.  A. 

S.  36,  47  L.  ed.  945.  23  Sup.  Ct.  Rep.  291. 

776.  isBessette    v.    W.    B.    Conkcv    Co. 

leSee  In  re  Olietwood,  165  U.  S.  194  U.  S.  324.  48  L.  ed.  997.  24  Sup. 
462,  41  L.  ed.  788.  17  Sup  Ct.  Rep.  Ct.  Rep.  665 :,  Butler  v.  Fnverweatlier. 
392:  O'Neal  v.  United  States.  190  91  Fed.  458,  33  C.  C.  A.  625. 
U.  S.  36.  47  L.  ed.  945,  23  Sup.  Ct.  i^See  Ohristensen  E.  Co.  v.  West- 
Rep.  776:  Besisette  v.  W.  B.  Conkev  inghouse  A.  B.  C-o.  129  Fed.  96,  63 
Co.  194  U.  S.  324.  48  L.  ed.  997.  24  C.  C.  A.  598:  Bullock  E.  &  M.  Co.  v. 
Sup.  Ct.  Rep.  665.  Westinghouse  E.  &   M.   Co.   129   Fed. 

iTBessette  v.  W.  B.  Conkev  Co.  194  105.  63  C.  C.  A.  607. 

U.  S.  324.  48  L.  ed.  997,  24'Sup.  Ct.  iQregon  R.  R.  Co.  v.  Balfour.  179 

Rep.  665.     To    same    effect:      In    re  U.  S.  56,   45  L.   ed.  84',   21   Sup.  Ct. 

Heinze.  127  Fed.  96.  62  C.  C.  A.  96;  Rep.  28. 

Butler  v.  Faverweather.  91  Fed.  458,  sAnte,  §  39. 

33    C.    C.    a'    625;    Flower   v.    Mac-  4 Ante.  §  45. [c]  §  48. [c] 

290 


Procedure]  INTERLOCUTORY    Al'l'KAL.  {    78    [b) 

such  interloc-utorv  order  or  decree  granting  or  continuing  such  in- 
junction, or  appointing  such  receiver,  to  the  circuit  court  of  appeals. 
Part  of  §  7  of  act  :\Iar.  3,  1891,  26  Stat.  828,  as  amended  Apr.  14,  1906, 
c.  J627,  34  Stat.  116. 

[a]  History  of  section  and  cross-references. 

The  section  also  provides  that  such  appeals  must  be  within  thirty  days.7 
and  regfulates  the  matter  of  bond  and  supersedeas*  and  gives  such  cases 
precedence. 9  As  originally  enacted  this  section  allowed  appeal  merely 
from  interlocutory  orders  granting  or  continuing  injunctions,  and  confined 
the  rights  to  cases  finally  appealable  to  the  circuit  court  of  appeals.  An 
amendment  in  18951  o  enlarged  the  provision  so  as  to  permit  appeal  also 
from  an  order  refusing,  dissolving  or  refusing  to  dissolve  an  injunction.  In 
190011  the  enlargement  of  the  right  of  appeal  introduced  by  the  act  of 
1895  was  withdrawn,  but  interlocutory  receivership  orders  were  for  the 
first  time  made  appealable.  In  1906  the  clause  restricting  the  right  to 
causes  "in  which  an  appeal  from  a  final  decree  may  be  taken  under  the 
provisions  of  this  act  to  the  circuit  court  of  appeals,"  was  stricken  out. 

[b]  Construction  and  application. 

Since  the  amendment  of  1900,  an  order  refusing  an  injunction  is  not  ap- 
pealable.13  An  order  refusing  to  dissolve  an  injunction  has  been  held  not 
an  order  continuing  an  injunction  within  the  meaning  of  the  present  law, 
and  hence  not  appealable  ;14  although  an  order  refusing  to  dissolve  and 
ordering  the  injunction  continued  to  final  hearing  has  been  declared  ap- 
pealable: is  as  also  an  order  contiTiuing  an  injunction  vacated  temporarily 
during  the  hearing.ie  An  order  awarding  permanent  injunction  in  in- 
fringement suit  and  reference  to  master  to  find  damages  is  appealable  as 
interlocutory.  1"  The  successful  party  can  defeat  a  right  to  such  inter- 
locutory appeal  by  waiving  his  injunction  imtil  final  decree.     Prior  to  the 

TPost,  S  1900.  G.   Co.    V.   Seaman.    113   Fed.   7.50.   51 

sPost,   §§  2020.   2021.  C.  C.  A.  440. 

9Post.  §  2056.  !•* Rowan   v.   Ide.   107    Fed.   161,   4a 

lOAct  Feb.  18.  1895,  c.  96.  2S  Stat.  <^-  ^-  -^-   214:   Heinze  v.   Butte  &  B. 

666.  etc.    Co.    107    Fed.    105,    46   C.    C.   A. 

iiAct  June  6.  1900.  c.  803.  .•?!   Stat.  219:    Dreutzer   v.    Frankfort    L.     Co. 

660.     This   act  amended    §   7   of   the  '^S  Fed.  642.  13  C.  C.  A.  73. 
act  of  1891,  without  refprriug  to  tlie         isBerliner   G.   Co.   v.    Seaman.   108 

a«t  of  1895.  but  it  was  held  ellectual  Fed.  714,  47  C.  C.  A.  630. 
to  supersede  the  amendment  of  1895:         isArmat  M.   P.   Co.  v.   Edison  M. 

Rowan  v.  Ide.  107  Fed.  161.  46  C.  C.  Go.  125  Fed.  039,  60  C.  C.  A.  380. 
.\.  214;    Columbia   W.   Co.    v.   Bovce,         i^Starr  B.  Works  v.  General  E.  Co. 

104  Fed.  172,  44  C.  C.  A.  588:    Heinze  129  Ferl.  102.  63  C.  C.  A.  604:   I^ek- 

V.  Butte  &   B.   Co.    107    Fe<l.    105.   46  wood   v.  Wickes,  75   Fed.    US.   21    C. 

C.  C.  A.  219.  C.  A.  257;   Richmond  v.  Atwood,  52 

isMarch   v.  Romare.   116   Fed.  354,  Fed.    10,   2  C.    C.   A.   59<).    17    L.R.A. 

53  C.  C.  A.  574;  Columbia  W.  Co.  v.  615.      The   successful    partv    can    de- 

Boyce.  104  Fed.  172.  44  C.  C.  A.  588;  feat    a    right    to    such    interlocutory 

American  S.   F.   Co.   v.   Vaiight.   108  appeal  bv  waiving  his  injunction  uri- 

Fed.  571,  47  C.   C.  A.   496;   Berliner  til  final 'decree. 

291 


S   78   [c]  THE    CIRCUIT    COURT    OF    APPEALS.  [Code  Fed. 

present  amendment  making  receivership  orders  appealable  it  was  held  that 
the  mandatory  orders  frequently  issued  upon  appointment  of  a  receiver, 
commanding  persons  to  surrender  property  to  him  or  refrain  from  disturb- 
ing his  possession,  or  suspending  the  operation  of  previous  orders  made  in 
the  cause,  were  not  technically  injunctions  and  hence  not  appealable; is 
though  of  course  technical  injunctions  are  often  issued  at  such  a  time.i9 
But  imder  the  present  provisions  an  order  appointing  a  receiver  "upon  a 
hearing  in  equitj'"  is  appealable;  though  there  is  a  difference  of  opinion  as 
to  whether  an  ex  parte  hearing  at  the  filing  of  a  bill  20  will  suffice  or  an 
adversary  hearing  on  a  motion  to  discharge  is  necessary.i  The  phrase 
"upon  a  hearing  in  equity"  when  applied  to  injunctions  would  seem  intend- 
ed to  forbid  appeal  from  the  temporary  restraining  order  often  issued  upon 
the  filing  of  a  bill.2  Appeal  has,  however,  been  allowed  from  a  preliminary 
injunction  made  on  a  prima  facie  showing; 3  and  it  has  been  said  that  the 
words  "interlocutory  order  or  decree"  are  used  in  their  broadest  sense  and 
confer  a  right  to  appeal  from  an  injunction  order  at  any  stage  of  the  case.* 
An  order  dissolving  a  temporary  restraining  order  is  not  appealable. 5  An 
order  denying  a  rehearing  is  not  an  interlocutory  injunction  order. 6  An 
ordering  punishing  one  not  party  to  a  suit  for  violating  the  injunction 
issued  therein,  is  not  within  this  section.7 

[c]  Case  need  not  now  be  one  appealable  to  the  circuit  court  of  appeals. 
Prior  to  1906  appeal  only  lay  if  the  case  was  one  appealable  to  the  circuit 
•court  of  appeals  after  final  decision. 8  Under  the  earlier  wording,  the 
•courts  held  that  if  jurisdiction  in  the  circuit  court  rested  upon  the  fact  that 
the  constitutionality  of  an  ordinance  or  the  application  of  the  Constitution 
was  involved,  an  interlocutory  injunction  order  was  not  appealable. 9  They 
further  held  that  the  existence  of  a  jurisdictional  question  would  not  pre- 
vent   appeal    of    interlociitory    injunction    orders;  10    nor   the    fact    that   a 

isHighland   Av.    &    B.    R.    Co.    v.  Works,  61   Fed.  782,  10  C.  C.  A.  60. 

Columbia  E.  Co.  168  U.  S.  628,  42  L.  Presumably    this    was    after  an  ad- 

ed.  606,   18  Sup.  Ct.  Rep.  240;   Jack  versary  hearing. 

V.   State,   102  Fed.  210,   42   C.   C.  A.        4Richmond  v.  Atwood,  52  Fed.  22^ 

267.    Contra  see  Pennsylvania  Co.  v.  17  L.R.A.  615.  2  C.  C.  A.  596. 
Jacksonville,  etc.  Ry.  55  Fed.   131,  5        5Denver  &  R.  G.  R.  R.  v.  Walker, 

C.  C.  A.  53.  68  Fed.  23,  15  C.  C.  A.  188. 

19 Smith  V.  Iron  Works,  165  U.  S.        6  Boston   &  A.  R.  R.  v.  Pullman's 

518,  41   L.  ed.  810,  17   Sup.  Ct.  Rep.  P.    C.    Co.    51   Fed.   305,   2   C.   C.   A. 

407;  In  re  Tampa  S.  R.  Co.  168  U.  S.  172. 

583,  42  L.  ed.  589,  18  Sup.  Ct.  Rep.        TBessette  v.  Conkey,  133  Fed.  165, 

177:     Lake     Nat.     Bank    v.    Savings  66  C.  C.  A.  291. 
Bank,  78  Fed.  517,  24  C.  C.  A.  195;         sSee  supra,  note.Ca] 
Texa?,  etc.  Co.  v.  Storrow,  92  Fed.  5,        9illinois    C.    R.   R.    v.    Adams,   93 

34  C.  C.  A.  182.  Fed.  852,  35  C.  C.  A.  635;  Dawson  v. 

20 Joseph   D.   G.   Co.  v.  Hecht,   120  Columbia  Av.  etc.  Co.   102  Fed.  200, 

Fed.  760,  57  C.  C.  A.  64.  42  C.  C.  A.  258 ;   Macon  v.  Georgia 

iPaeific    N.   P.    Co.    v.   Allen,    109  P.  Co.  60  Fed.  781,  9  C.  C.  A.  262. 
Fed.  515,  48  C.  C.  A.  521.  loin  re  Tampa  S.  R.  R.  168  U.  S. 

2See   Joseph   D.   G.    Co.   v.   Hecht,  583,  42  L.  ed.  589,   18  Sup.  Ct.  Rep. 

120  Fed.  760,  57  C.  C.  A.  64.  177;    Lake    Nat.    Bank    v.    Savings 

sAndrews     v.     National     P.   &    F.  Bank,  78  Fed.  517,  24  C.  C.  A.  195. 

292 


Procedure]  REVENUE    APPRAISERS    APPEALS.  !  79 

constitutional   question   was    raised  later  in   the   cause,   where  originally 
jurisdiction  rested  on  diverse  citizenship.n 

[d]    Scope  of  review  and  disposition  of  cause. 

The  merits  will  generally  not  be  investigated,  and  the  order  of  the  court 
below  will  be  affirmed  unless  an  abuse  of  legal  discretion  is  shown; is  or 
violation  of  the  rules  of  equity  controlling  the  exercise  of  a  court's  discre- 
tion.! *  The  fact  that  an  injunction  is  granted  in  one  and  refused  in  an- 
other case  very  similar,  does  not  necessarily  indicate  abuse  of  discretion.is 
If,  however,  the  court  below  did  not  give  relief  sufficiently  broad,  the  ap- 
pellate court  will  do  so.i6  The  court  may  determine  the  case  on  its  merits 
and  dismiss  where  a  want  of  equity  is  apparent,! 7  or  a  final  determination 
is  possible.! s  The  whole  of  the  interlocutory  decree  is  reviewable  and  not 
merely  the  injunction  part.!  9  A  harmless  order  dissolving  an  injunction 
will  not  be  reviewed  in  order  to  decide  a  question  of  jurisdiction.2  0  On 
appeal  frojn  interlocutory  injunction  granted  in  a  patent  infringement  suit, 
complainant  cannot  by  cross  appeal  obtain  review  of  so  much  of  the  order 
as  dismissed  the  bill  as  to  parts  of  patent  found  invalid,  i  The  order  fixing 
the  appeal  bond  is  not  reviewable.  2 

§  79.  Appeals  from  circuit  court  decisions  reviewing  revenue 
decisions  of  tlie  board  of  general  appraisers. 
[The  circuit  court  having  heard  and  determined  an  appeal  from 
the  decision  of  the  hoard  of  general  appraisers  as  to  the  classification 
of  merchandise  imder  the  revenue  laws  and  the  rate  of  duty  there- 
on] ^  the  decision  of  such  court  shall  be  final  .  .  .  unless  such 
court  shall  be  of  opinion  that  the  question  involved  is  of  such 
importance  as  to  require  a  review  of  such  decision  by  the  Supreme 
Court  of  the  United  States  [since  1891,  by  the  circuit  court  of  ap- 

iiStaffords  v.   King.   90  Fed.    136,        isKnoxville  v.  Africa,  77  Fed.  501, 

32  C.  C.  A.  536.     See  ante,   §  77. [el  23  C.  C.  A.  252. 

13 Wright  V.  MacFarlane,  122  Fed.        isSmith  v.  Vulcan  I.  Works,   165 

775,   58  C.   C.  A.  570:    Bissell   C.   S.  U.  S.  518,  41  L.  ed.  810,  17  bup.  Ct. 

Co.  V.  Goshen  S.  Co.  72  Fed.  545,  19  Rep.    407;    United   States   R.    Co.   v. 

C.  C.  A.  25;   Murrav  v.  Bender,  109  American  0.  L.   Co.  82  Fed.  248,  27 

Fed.  585,  48  C.  C.  A.  555;   Railroad  C.    C.   A.    118.      But   see   Lake   Nat. 

Comrs   V.    Rosenbaum    Co.    130    Fed.  Bank  v.  Savings  Bank,  78  Fed.  517, 

110,  64  C.  C.  A.  444.  24  C.  C.  A.  195. 

i^Lehman  v.  Graham,  135  Fed.  39,        2  0Lake  St.  El.  R.  R.  v.   Farmers' 

67  C.  C.  A.  513.  L.  &  T.  Co.  77  Fed.  769,  23  C.  C.  A. 

isSociete  Anon.  v.    Allan,   90   Fed.  448. 
815,  33  C.  C.  A.  282.  lEx   parte   National,   etc.    Co.    201 

isQharles    E.    Hires    Co.    v.    Con-  U.    S.    156,    50    L.    ed.    707,    26    Sup. 

sumers'  Co.  100  Fed.  809,  41  C.  C.  A.  Ct.  Rep.   404. 
71.  2Crown.    etc.    Co.    v.    Standard    S. 

iTBerliner  G.   Co.  v.   Seaman,   110  Co.  136  Fed.  841,  69  C.  C.  A.  200. 
Fed.  30,  49  C.  C.  A.  99:  In  re  Tampa        sSee  post,  §  140. 
S.   R.   R.    168   U.    S.   583,   42   L.   ed. 
589,  18  Sup.  Ct.  Rep.  177. 

293 


§80  THE  CIRCUIT  COURT  OF  AriM:Ar.S.  [Code    i'ed. 

peais]  in  which  case  said  circuit  court,  oi-  tiie  judge  making  the 
decision  may,  within  thirty  days  thereafter,  allow  an  appeal  to  said 
Supreme  Court  [since  1891.  to  the  circuit  court  of  appeals]  ;  but 
an  appeal  shall  be  allowed  on  the  part  of  the  United  states  wheuever 
the  Attorns}'^  General  shall  apply  for  it  within  thirty  days  after  the 
rendition  of  such  decision.  .  .  .  Said  Supreme  Court  [since 
1891,  the  circuit  court  of  appeals]  shall  have  jurisdiction  and  power 
to  review  such  decision'  and  shall  give  priority  to  such  c<is('s,  and 
may  affirm,  modify,  or  reverse  such  decision  of  such  circuit  court, 
and  remand  the  case  with  such  orders  as  may  seem  to  it  proper  in 
the  premises,  which  shall  be  executed  accordingly. 

Part  of   §    15,   act   June   10,   1890,  c.   407,   26   Stat.   138,   U.   S.   Comp. 
Stat.  1901,  p.   1934. 

The  foregoing  is  from  an  act  of  1890,  passed  to  facilitate  the  collection 
of  revenue.  The  circuit  court  of  appeals  act  in  the  following  year,  made 
revenue  cases  appealable  to  the  new  tribunal  and  made  its  decisions  final.* 
The  effect  of  that  law  was  therefore  to  substitute  a  right  of  appcul  to  the 
circuit  court  of  appeals  for  the  appeal  to  the  Supreme  Court  originally  pro- 
vided.' 

§  80.     Appeals  from  appellate  court  of  Indian  Territory. 

The  admission  of  Indian  Territory  and  Oklahoma  as  a  state  of 
the  union  has  superseded  the  act  of  1905  whereby  appeal  lay  from 
the  court  of  appeals  of  the  Indian  Territory  to  the  circuit  court  of 
appeals  for  the  eighth  circuit.® 
Author's  section. 

Prior  to  the  act  of  1905  the  matter  was  governed  by  an  act  of  1895,1' 
providing  that  "writs  of  error  and  appeals  from  the  final  decision  of  said 
appellate  court  [in  Indian  Territory]  shall  be  allowed,  and  may  be  taken 
to  the  circuit  court  of  appeals  for  the  eighth  judicial  circuit  in  the  same 
manner  and  under  the  same  regulations  as  appeals  are  taken  from  the 
circuit  courts  of  the  United  States."  The  circuit  court  of  appeals  act 
originally  provided  for  appeahi  from  the  United  States  court  in  the  Indian 
Territory  to  the  Supreme  Court  and  to  the  circuit  court  of  appeals  in  the 
same  manner  as  from  Federal  circuit  or  district  eourts.n  But  in  1895  an 
appellate  court  was  created  in  Indian  Territory,  having  jiu'isdiction  over  all 

6 Ante.  §  77. m  9 Act  Mar.  3,  1905,  c.  1479.  §  12.  33 

TAnglo-Californian  Hank  v.  United  Stat.  1801,  U.  S.  Comp.  Stat.  1905.  p. 

States'.    175,   U.    S.  37.  44   L.   eJ.   (54,  150. 

20   Sup.   Ct.   Rep.    19;    Loui^iville   P.  lOAct  Mar.  1.  1895.  c.  145,  §  11.  28 

W.    Co.   V.   Collector.   49   Fed.   5<j1,   1  Stat.    698. 

C.  C.  A.  371;    United  States  v.  Hope-  nAct  Mar.   3.   1891.   c.   517.   §   13, 

well,  51  Fed.  im.  2  C.  C.  A.  510.  U.  S.  Comp.  Stat.   1901,  p.  553. 

294 


Procedure]   APPEALS  FIJOM  TI.RItlTORIAL  SUPUEME   COUPvTS.  §   81 

appeals  from  the  trial  court;  and  the  sair.e  act  provided  for  appeal  from  the 
new  appellate  court  to  the  circuit  court  of  appeals  as  specified  above.  This 
necessarih'  superseded  the  original  provision  in  the  act  of  189112  as  to  the 
circuit  court  of  appeals. 

§  81.     Appeals  from  Territorial  supreme  courts. 

The  circuit  court  of  appeal,  in  cases  in  which  the  judgments  of 
the  circuit  courts  of  appeal  are  made  final  by  this  act  shall  have 
the  same  appellate  jurisdiction,  by  writ  of  error  or  appeal,  to  review 
tlie  judgments,  orders,  and  decrees  of  the  supreme  courts  of  the  sev- 
eral Territories  as  by  this  act  they  may  have  to  review  the  judg- 
ments, orders,  and  decrees  of  the  district  court  and  circuit  courts : 
and  for  that  purpose  the  several  Territories  shall,  by  orders  of 
the  Supreme  Court,  to  be  made  from  time  to  time,  be  assigned  to 
particular  circuits. 

§  15  of  act  Mar.  3,  1891.  c.  517.  20  Stat.  830,  U.  S.  Comp.  Stat.  1901. 
p.  5.54. 

This  general  provision  as  to  appeals  from  the  Territories  applies  now 
only  to  Arizona  and  New  Mexico;  and  the  same  is  true  of  the  general 
legislation  governing  appeals  from  the  Territories  to  the  Supreme  Court. n 
Separate  provisions  exist  in  the  ca^e  of  Alaska,i5  and  Hawaii. ig  The  legis- 
lation governing  appeals  fi'om  Porto  Rico  does  not  seem  to  provide  appeal 
to  the  circuit  court  of  appeals  in  any  cases. i'  The  same  is  true  of  the 
Piiilippines.is  By  Supreme  Court  order  Utah,  Oklahoma  and  New  Mexicn 
have  been  assigned  to  the  eighth  circuit. 1 9  Alaska  and  Arizona  to  thf 
ninth  circuit.^o  By  a  later  order  Hawaii  has  been  assigned  to  the  nintli 
circuit. 1  The  class  of  cases  made  final  in  the  circuit  court  of  appeals  has 
already  been  considered. 2  A  conviction  of  an  infamous  crime  was  formerly 
appealable  to  the  Supreme  Court  and  not  to  the  circuit  court  of  appeals  and 
at  that  time  such  a  case  could  not  have  been  entertained  on  appeal  from 
the  supreme  court  of  a  Territory. 3  Cases  in  which  jurisdiction  depended 
entirely  on  diverse  citizenship  (made  final  in  the  circuit  court  of  appeals) 
could  not   arise  in   a   Territorial  court   whose  jurisdiction   is   plenary   and 

i2Gowen  v.  Bush.   72  Fed.  299,  18  Fed.  7,  3  C.  C.  A.  388.     See   139  U. 

r.  C.   A.   572:    Scott  v.   Hammer.  72  S.  Appendix. 

Fed.  289.   18  C.   C.   A.   565:    Hariess        2  0Coquitlam  v.  United  States.   163 

v.  T;nited  States.  88  Fed.  97.  31  C.  C.  U.  S.  346,  41  L.  ed.  184.  16  Sup.  Ct. 

A.  397.  Rep.  1117.     But  appeal  from  Alaska 

KAnte,  §  48.  is  now  otherwise  provided  for.  post. 

"Post.  §§  82-84.  §  82. 

isPost.  §  85.  lEx  parte  Wilders  S.  S.  Co.  183  U. 

I'Ante.  §  55.     See  Roval  Tn«.  Cases  S.  545.  46  L.  ed.  321.  22  Sup.  Ct.  ^ep. 

Co.  V.  Martin.   192  U.  S.   160,  48  L.  225.     But  see  post.  §  85. 
fd.  389.  24  Sup.  Ct.  Rep.  247.  2Ante.  §  ITSsl-m 

iSAnte.  §  56.  sFolsom   v.   United   St.-ites.    160   U. 

i9Tn    re   Boles.    48    Fed.    75,    1    C.  S.    121.   40   L.    ed.   363.    16   Sup.    Ct. 

C.  A.  48;  Aztec  M.  Co.  v.  Ripley.  53  Rep.  222. 

205 


!  82  THE    CIRCUIT    COURT    OF    APPEALS.  [Code  Fed. 

never  dependent  on  the  character  of  the  parties.4  The  few  cases  in  which 
appeal  has  been  attempted  have  for  the  most  part  not  come  within  tlie 
terms  of  the  statute  conferring  jurisdiction. 5  There  is  ground  for  arguing 
that  appeal  lies  from  a  Territorial  supreme  court  not  only  in  admiralty, 
revenue  and  criminal  cases,  other  than  capital,  but  also  in  the  class  of  cases 
appealable  from  the  circuit  or  district  court,  which  are  final  in  the  circuit 
court  of  appeals  because  not  involving  more  than  one  thousand  dollars. 6 
Cases  arising  under  the  Federal  laws,  involving  their  construction  but  not 
their  constitutionality,  in  which  the  value  in  dispute  was  less  than  one 
thousand  dollars,  or  else  of  a  nature  not  susceptible  of  pecuniary  estimate, 
would  be  the  chief  and  perhaps  the  only  class  of  cases  in  which  this  right 
of  review  from  a  Territorial  supreme  court  could  be  claimed.  The  con- 
tention has  been  denied  in  the  circuit  court  of  appeals,  but  the  case  was  not 
of  the  type  appealable  and  made  final  on  appeal  from  the  circuit  or  district 
court,  because,  while  involving  less  than  $1,000,  it  did  not  involve  Federal 
laws  at  all  and  hence  could  never  have  arisen  in  a  Federal  court. 7  The 
circuit  court  of  appeals  has  jurisdiction  only  over  the  Territorial  supreme 
and  not  the  district  courts.  8 

§  82.     Appeal  from  District  Court  of  Alaska. 

In  all  other  cases  [than  cases  of  prize,  cases  involving  the  con- 
struction or  application  of  the  Federal  Constitution,  or  the  constitu- 
ionnality  of  any  Federal  law,  or  drawing  in  question  the  validity 
or  construction  of  a  treaty,  or  in  which  the  constitution  or  law  of 
a  State  is  claimed  to  violate  the  Federal  Constitution]  ^  where  the 
amount  involved  or  the  value  of  the  subject-matter  exceeds  five 
hundrd  dollars  the  United  States  circuit  court  of  appeals  for  the 
ninth  circuit  shall  have  jurisdiction  to  review  by  writ  of  error  or 
appeal  the  final  judgments,  orders,^^  of  the  district  court  [of 
Alaska] . 

Part  of  §  504,  Alaska  Code,  31  Stat.  414,  act  June  6,  1900,  c.  780. 

The  act  of  1874  no  longer  controls  appeal  from  Alaska.n     Formerly  the 
circuit  court   of   appeals  exercised   appellate  jurisdiction   over  the   Alaska 

4Nor  do  citizens  of  a  Territory  pos-  TBadaracco   v.    Cerf,   53   Fed.    169, 

sess  that  citizenship  upon  which  Fed-  3  C.  C.  A.  491. 

eral  jurisdiction  can  be  based.    Ante,  sin  re  Boles,  48  Fed.   75,   1   C.  C. 

§  2.    [s]  A.  48. 

5  See  Union  C.  C.  Co.  v.  Ohajnplin,  9  Such  cases  are  appealable  direct 

116   Fed.  858,   54  C.   C.  A.   208,  and  to  the  Supreme  Court.     See  ante,  § 

oases  cited.  52. 

6Ante,  §  77. [1]      See  Aztec  M.  Co.  lOSo  in  the  printed  statutes. 

V.   Riplev^   151    U.    S.   79,   38   L.   ed.  uShields  v.  Mongollon  Ex,  Co.  137 

80,  14  Sup.  Ct.  iiep.  236.  Fed.  539,  70  C.  C.  A.  123. 

296 


Procedure]         APPEALS    FROM    HAWAII    DISTRICT    COURT.  §  85 

district  court  under  §  15  of  the  act  of  1891.12     This  section  requires  that 
suit  to  recover  interest  in  a  mining  claim  be  reviewed  by  writ  of  error.  1 3 

§  83.  — from  interlocutory  injunction  orders  of  Alaska  district 
court. 

An  appeal  may  be  taken  to  the  circuit  court  of  appeals  from 
any  interlocutory  order  granting  or  dissolving  an  injunction,  refus- 
ing to  grant  or  dissolve  an  injunction,  made  or  rendered  in  any 
cause  pending  before  the  district  court  within  sixty  days  after  the 
entry  of  such  interlocutory  order.  The  proceedings  in  other  respects 
in  the  district  court  [of  Alaska]  in  the  cause  in  which  such  in- 
terlocutory order  was  made  shall  not  be  stayed  during  the  pendency 
of  such  appeal,  unless  otherwise  ordered  by  the  district  court. 
§  507  Alaska  code,  act  June  6,  1900,  c.  786,  31  Stat.  415. 

This  provision  is  somewhat  similar  to  §  7  of  the  act  of  1891, i*  although 
it  does  not  require  that  the  injunction  order  have  been  made  "upon  a  hear- 
ing in  equity."! 5 

§  84.     Decision  on  appeal  from  Alaska  final. 

The  judgments  of  the  circuit  court  of  appeals  shall  be  final  in 
all  cases  coming  to  it  from  the  district  court  [of  Alaska]. 

Part  of  §  505,  Alaska  code,  31  Stat.  415,  act  June  6,  1900,  c.  786. 

But  any  question  upon  which  the  circuit  court  of  appeals  desires  instruc- 
tion may  be  certified  to  the  Supreme  Court.i? 

§  85.     Appeals  from  Hawaii  district  court. 

Writs  of  error  and  appeals  from  said  district  court  [in  Hawaii] 
shall  be  had  and  allowed  to  the  circuit  court  of  appeals  in  the 
ninth  judicial  circuit  in  the  same  maner  as  writs  of  error  and  ap- 
peals are  allowed  from  circuit  courts  to  circuit  courts  of  appeals  as 
provided  by  law,  and  the  laws  of  the  United  States  relating  to 
juries  and  jury  trials  shall  be  applicable  to  said  district  court. 
The  laws  of  the  United  States  relating  to  appeals,  writs  of  error 
.  .  .  and  other  matters  and  proceedings  as  between  the  courts 
of  the  United  States  and  the  courts  of  the  several  States  shall 

12 Ante.  §  81.  isLane  v.  Jordon,  116  Fed.  623,  54 

isShiclds  V.  Mongollon  Ex.  Co.  137    C.  C.  A.  79 
Fed.  539,  70  C.  C.  A.  123.  i^See  ante,  §  53 

"Ante,  §  78. 

297 


S   86  THE   CIRCUIT  COURT  OF   APPKALS.  [Code  Fed. 

govern  in  such  matters  and  proceedings  as  bet\\een  the  courts  of  the 
United  States  and  the  courts  of  the  Territory  of  Hawaii. 
Part  of  §  86,  act  Apr.  30,  1000,  c.  339. 

The  section  governing  appeals  to  the  Supreme  Court  is  given  elsewhere.i* 
The  appellate  jurisdiction  of  the  circuit  court  of  appeals  over  the  circuit 
and  district  courts  has  already  been  discussed. 20  A  case  in  which  the 
Hawaiian  district  court's  jurisdiction  depended  upon  a  constitutional  ques- 
tion is  not  appealable  to  the  circuit  court  of  appeals  ;i  but  is  of  the  type 
appealable  direct  to  the  Supreme  Court.2 

§  86.     Appellate  jurisdiction  in  bankruptcy. 

The  appellate  jurisdiction  of  the  circuit  court  of  appeals  in  bank- 
ruptcy is  considered  elsewhere.^ 
Author's  section. 

f;  87.  — in  trademark  cases. 

The  circuit  courts  of  appeal  of  tlie  United  States  and  the  court 
'>f  appeals  of  the  District  of  Columbia  shall  have  appellate  juris- 
diction of  all  suits  at  law  or  in  equity  respecting  trademarks 
registered  in  accordance  with  the  provision  of  this  act,  arising 
under  the  present  act  without  regard  to  the  amount  in  controversy. 
Part  of  §  17,  act.  Feb.  20,  1905.  c.  592.  33  Stat.  728,  U.  S.  Comp.  Stat. 
1905,  p.  675. 

The  first  portion  of  the  above  section  declares  the  jurisdiction  of  the 
circuit  court. 5  Other  portions  of  the  act  are  given  in  the  cliapter  dealing 
with  procedure   in   trademark  cases. 6 

§  88.     Appeals   from   United   States   court  in   China. 

Appeals  shall  lie  from  all  final  judgments  or  decrees  of  said  court 
to  the  United  States  circuit  court  of  appeals  of  the  ninth  judicial 
circuit,  and  thence  appeals  and  writs  of  error  may  be  taken  from 
the  judgments  or  decrees  of  the  said  circuit  court  of  appeals  to  the 
Supreme  Court  of  the  United  States  in  the  same  class  of  cases 
as  those  in  which  appeals  and  writs  of  error  are  permitted  to  judg- 
ments of  said  court  of  appeals  in  cases  coming  from  district  and 
circuit  courts  of  the  United  States.  Said  appeals  or  writs  of  error 
shall  be  regulated  by  the  procedure  governing  appeals  within  the 

19 Ante,  §  54.  2 Ante,  §  42. 

20 Ante.  §  77.  sPost.  §  . 

iWright   V.   MacFarlane,   122   Fed.  spost,  S  162. 

770,  58  C.  C.  A.  570.  cpost,  §   1177,  et  seq. 

298 


Procedure]  APPEALS    FROM    COURT    IN    CHINA.  §   88 

United  States  from  the  district  courts  to  the  circuit  courts  of  ap- 
peal, and  from  tlie  circuit  courts  of  appeal  to  the  Supreme  Court 
of  the  United  States,  respectively,  so  far  as  the  same  shall  be 
applicable;  and  said  courts  are  hereby  empowered  to  hear  and 
determine  appeals  and  writs  of  error  so  taken. 
8  3  of  act  June  30,  190t>,  c.  3934,  34  Stat.  815. 


299 


CHAPTEK  4, 

THE    CIRCUIT   COURT.— ORGANIZATION    AND    GENERAL   POWERS. 

§  100.     "Circuit  justice"  and  "circuit  judge"  defined  and  distinguished. 

§  101.     Allotment  of  justices  to  the  circuits. 

§  102.     Circuit  judges. 

§  103.     Establishment  of  circuit  courts  in  the  various  States. 

§  104.     By  whom  circuit  courts  are  to  be  held. 

§  105.     Justices  of  Supreme  Court  to  attend  once  in  two  years. 

§  106.     Judges  of  circuit  courts  may  sit  apart. 

§  107.     When  Iowa  district  judges  holding  circuit  court,  to  sit  together. 

§  108.     Circuit  courts  at  same  time  in  different  districts. 

§  109.     Who  may  hold  criminal  terms  in  southern  district  of  New  York. 

§  110.     Whose  opinion  prevails  where  judges  divided. 

§  111.     Whose   opinion    prevails    where   district   judge   holds   circuit    court 

with  other  judges. 
§  112.     Suit  transferred  to  another  circuit  court  in  case  of  disability. 
§  113.     When  such  causes  certified  back. 

§  114.     Justices  may  hold  courts  of  other  circuits  on  request. 
§  115.    — in  cases  where  no  justice  is  allotted  to  a  circuit. 
§  116.     Wlien  district  court  matters  to  be  certified  into  and   disposed  of 

in   circuit  court. 
§  117.     District   court   matters   subsequent  to   certifying   order   also  to  be 

transmitted. 
§  118.     Powers  of  district  judge  vested,  during  disability,  in  circuit  judge. 
§  119.     Duty  of  disabled  district  judge  to  certify  and  of  circuit  judge  to 

take  cognizance. 
§  120.     Circuit   court's   jurisdiction    of   transferred   district   court    matters. 

§  100.     "Circuit  justice"  and  "circuit  judge"   defined  and  dis- 
tinguished. 

The  words  ''circuit  justice"  and  "justice  of  a  circuit,"  when  used 
in  thisTitle,  [i.  e  relating  to  the  judiciary]  shall  be  understood  to 
designate  the  justice  of  the  Supreme  Court  who  is  allotted  to  any 
circuit ;  but  the  word  "judge,"  when  applied  generally  to  any  circuit, 
shall  be  understood  to  include  such  justice. 
R.  S.  §  605,  U.  S.  Comp.  Stat.  1901,  p.  486. 

300 


rocedure]  ESTABLISHMENT   OF    CIRCUIT   COURT.  §   103 

§  101.     Allotment   of   justices   to   the   circuits. 

The  Chief  Justice  and  associate  justices  of  the  Supreme  Court 
shall  be  allotted  among  the  circuits  by  an  order  of  the  court,  and 
a  new  allottment  shall  be  made  whenever  it  becomes  necessary  or 
convenient  by  reason  of  the  alteration  of  any  circuit,  or  of  the 
new  appointment  of  a  Chief  Justice  or  associate  justice,  or  otherwise. 
If  a  new  allotment  becomes  necessary  at  any  other  time  than  during 
a  term,  it  shall  be  made  by  the  Chief  Justice,  and  shall  be  binding 
until  the  next  term  and  until  a  new  allotment  by  the  court. 
R.  S.  §  606,  U.  S.  Comp.  Stat.  1901,  p.  487. 

§  102.     Circuit  judges. 

At  present  there  are  four  circuit  judges  in  the  second,  seventh 
and  eighth  circuits,  and  three  circuit  judges  in  each  of  the  other 
seven  circuits,  excepting  the  fourth  wherein  there  are  now  only  two. 
They  have  the  same  power  and  jurisdiction  therein  as  the  justice 
of  the  Supreme  Court  allotted  to  the  circuit. 
Author's  section. 

Revised  Statutes,  §  607.  called  for  one  circuit  judge  in  each  circuit.  A 
special  act  of  1887  provided  an  additional  circuit  judge  in  the  second 
circuit;!  and  the  circuit  court  of  appeals  act  of  1801,2  provided  for  the 
appointment  of  an  additional  circuit  judge  in  each  circuit.  Later  statutes 
have  at  various  times  provided  for  a  third  circuit  judge  in  the  third,  fifth, 
sixth,  seventh,  eighth  and  ninth  circuits. 3  Acts  of  1902  and  1903  provided 
a  fourth  circuit  judge  for  the  second  and  eighth  circuits;*  and  acts  of  1905 
provided  .an  additional  circuit  judge  in  the  first  and  seventh  circuits. 5 
Provisions  as  to  salary,  residence,  and  expenses  of  judges  are  given  else- 
where. 6 

§  103.     Establishment  of  circuit  courts  in  the  various  States. 

The  statutes  now  provide  for  and  there  exists  a  circuit  court  of 
the  United  States  in  and  for  each  Federal  judicial  district  through- 
out the  several  States,  whether  a  State  comprise  two  or  more  such 

lAet  Mar.  3,  1887,  24  Stat.  492.  4Seeond  circuit,  act  Apr.  17.  1902, 

2Act  Mar.  3,  1891,  c.           ,  26  Stat.  c.   530,  32  Stat.   106;   Eighth  circuit, 

826.  act   Jan.   31,    1903,    c.   345,    32   Stat. 

sTliird  circuit  bv  act  Feb.  23,  1899,  791. 

c.  186,  .30  Stat.  846.     Fifth  and  sixth  5 Act  Jan.  21,  1905,  c.  51,  33  Stat. 

circuits'  bv  act  Jan.  25,   1899,  c.  56,  611;   Act  Mar.  3,  1905,  c.  1427,   §   1, 

30  Stat.  803.     Seventh  circuit  by  act  33  Stat.  992,  U.  S.  Comp.  Stat.  1905, 

Fefc.    8.    1895.    c.    ,59,    28    Stat.    643.  p.  140. 

Eighth  circuit  by  act  July  23,  1894,  epost,  §§  46,  et  seq. 

c.  147,  28  Stat.  115.     Ninth  circuit  by 

act  Feb.  18,  1895,  c.  94,  28  Stat.  665. 

301 


§   104  Tin:    CIRCUIT  COURT.  [Code  Fed. 

districts,  or  one  only.    In  a  few  instances  separate  circuit  and  dis- 
trict courts  are  created  for  the  several  divisions  into  which  certain 
districts   have  been  divided. 
Author's  section. 

Formerly  there  was  not  always  a  circuit  as  well  as  a  district  court  in 
each  district.  At  tihe  time  of  the  adoption  of  the  Revised  States  a  circuit 
court  was  provided  for  each  district  except  in  Alabama,  Arkansas  and  Mis- 
sissippi,s  in  which  States  there  was  only  one  circuit  court,  althoniili  two 
or  more  districts.  Later  statutes  have  created  the  additional  cnvuts,  and 
repealed  R.  S.  §  655,  conferring  circuit  court  powers  on  certain  district 
courts. 9  The  various  statutes  which  have  created  two  or  more  divisions  in 
a  large  number  of  the  Federal  judicial  districtsio  have  usually  not  created 
separate  circuit  and  district  courts  in  such  divisions,  but  have  merely  pro- 
vided for  sessions  and  terms  of  those  courts  as  created  for  the  district,  in 
each  such  division.  However  in  the  case  of  Missouri  the  statute  dividing 
the  two  districts,  one  into  two  and  the  other  into  four  divisions,  provides 
"that  there  shall  be,  and  there  are  hereby,  established  a  district  and  circuit 
court  of  the  United  States  in  each  of  the  several  divisions"  uf  the  tv,i> 
districts.il     This  is  an  exception  to  the  general  policy  of  Congress. 

§  104.     By  whom  circuit  courts  are  to  be  held. 

Circuit  courts  shall  be  held   by  the  circuit  justice,   or  by  the 
circuit  judge  of  the  circuit,  or  by  the  district  judge  of  the  district 
sitting  alone,  or  by  any  two  of  the  said  judges  sitting  together. 
R.  S.  §  609,  U.  S.  Comp.  Stat.  1901,  p.  494. 

This  provision  was  first  enacted  in  1869.13  The  authority  of  a  district 
judge  holding  a  circuit  court  aloiK!  under  this  section,  is  just  as  extensive 
as  that  of  any  other  judge  sitting  in  the  same  court.i*  Such  judge  can 
issue  a  writ  of  injunction  just  as  fully  and  freely  in  all  respects  as  when 
the  court  is  held  by  the  circuit  justice  or  judges  or  by  two  just  ices,  i'' 
Different  judges  holding  the  same  court  should  not  overrule  one  another 
except  for  most  cogent  reasons.is  In  some  cases  there  are  special  pro 
visions  for  three  judges  to  sit  at  circnit.isVb 

•    sR.    S.   §    60S,    U.    S.    Comp.    Stat,  respecting   South    Carolina  seems   t> 

1901,  p.  489.  create  a  district  court  for  each  divi- 

sAlabama  bv  act  June  22,  1874,  c.  sion.     See  post.  §  284. 

401,  18  Stat.  195,  U.  S.  Comp.  Stat.  1 3 Act  April  10.  1869,  c.  22,  16  Stat. 

19ui,   p.   490.     Arkansas   and   Missis-  44. 

sippi  bv  act  Feb.  6,  1889.  c.   113.  25  i4McDoiwell  v.  Kurtz.  77  Fed.  206. 

Stat.  655,  U.  S.  Comp.  Stat.  1901,  p.  23  C.  C.  A.  119. 

492.  isGoodvcar.   etc.    Co.   v.    Folsom.   3 

10  See  post,  §§  257,  et  seq.  Fed.  509.^ 

iiSee  act   Feb.   28.   1887.  c.   271,   §  leBoatmen's  Bank  v.  Fritzlen,   135 

3,    24    Stat.    425,    U.    S.    Comp.    Stat.  Fed.   650.   68  Fed.  288. 

1901,  p.  386.     So  also  the  legislation  i6%See   post,   §   1347. 

302 


Proiediire]  ORGANIZATION.  S   lOS 

§  105.     Justices  of  Supreme  Court  to  attend  once  in  two  years. 

It  shall  be  the  (liity  of  the  Chief  Justice,  and  of  each  justice  of 
the  Supreme  Court,  to  attend  at  least  one  term  of  the  circuit  court 
in  each  district  of  the  circuit  to  which  he  is  allotted  during  every 
period  of  two  years. 

R.  S.  §  610.  U.  S.  Comp.  Stat.  1901,  p.  494. 

While  the  above  section  does  not  require  that  the  justices  shall  go  to 
their  circuits  more  tlian  once  in  two  years,  its  effect  is  to  compel  them  to 
do  this,  there  being  so  many  districts  in  many  of  the  circuits  that  it  is 
impossible  for  the  circuit  justice  to  reach  them  all  in  one  year.i7 

§  106.     Judges  of  circuit  courts  may  sit  apart. 

C'ases  may  be  heard  and  tried  by  each  of  the  judges  holding  a 
circuit  court  sitting  apart  by  direction  of  the  presiding  justice  or 
judge,  who  shall  designate  the  business  to  be  done  by  each. 
R.  S.  §  611,  U.  S.  Comp.  Stat.  1901,  p.  494. 

§  107.  When  lewa  district  judges  holding  circuit  court,  to 
sit  together. 
The  circuit  judge  of  the  eighth  judicial  circuit  may,  by  order, 
direct  the  judges  of  the  said  northern  and  southern  districts  of 
Iowa'  to  sit  together  in  holding  the  circuit  court  in  either  of  said 
districts;  and  when  so  sitting  the  judge  oldest  in  commission  shall 
preside,  and  in  case  of  disagreement  between  them  his  opinion 
shall  prevail  for  the  time  being:  Provided,  however,  That  a  certifi- 
cate of  division  may  be  signed  by  them  with  like  effect  as  in  cases 
provided  by  law  for  certificates  of  division  between  a  crcuit  and 
district  judge. 

fi  8  act  July  20,  1882,  c.  312,  22  Stat.  173  U.  S.  Comp.  Stat.  1901,  p.  351. 

The  proviso  as  to  certificate  of  division  is  no  longer  operative,  since  R.  S. 
§S  0.>1,  6.52.  to  which  it  refers  were  superseded  by  the  circuit  court  of  ap- 
peals act  of  1891.2 

§  108.     Circuit  courts  at  same  time  in  different  districts. 

(.'ircuit  courts  may  be  held  at  the  same  time  in  the  different 
districts  of  the  same  circuit. 

R.  S.  012,  U.  S.  Comp.  Stat.  1901,  p.  494. 

iTIn   re   Neagle,    13,5   U.   S.   55,  .34        iSee  post.   §  267. 
L.  ed.  68,   10  Sup.  Ct.  Rep.  658.  2\J,  S.  Comp.  Stat.  1901,  p.  527. 

303 


§   109  THE    CIRCUIT    COURT.  [Code  Fed. 

This  section  was  carried  into  the  Revised  Statutes  from  an  act  of  18G9.3 
It  is  of  course  now  usual  for  courts  to  be  so  held. 

§  109.     Who  may  hold  criminal  terms  in  southern  district  of 
New  York. 

The  terms  of  the  circuit  court  for  the  southern  district  of  New 
York,  appointed  exclusively  for  the  trial  and  disposal  of  criminal 
husiness,  may  be  held  by  the  circuit  judge  of  the  second  judicial 
court  and  the  district  judges  for  the  southern  and  eastern  districts 
of  New  York,  or  any  one  of  said  three  judges.  .  .  . 
Part  of  R.  S.  §  613,  U.  S.  Comp.  Stat.  1901,  p.  494. 

The  remainder  of  the  above  section  provides  for  allowing  expenses  of  a 
visiting  judge  of  the  eastern  district.^ 

§  110.     Whose   opinion  prevails  where   judges  divided. 

Whenever,  in  any  civil  suit  or  proceeding  in  a  circuit  court  held 
by  a  circuit  justice  and  a  circuit  judge  or  a  district  judge,  or 
by  a  circuit  judge  and  a  district  judge,  there  occurs  any  difference 
of  opinion  between  the  judges  as  to  any  matter  or  thing  to  be  de- 
cided, ruled,  or  ordered  by  the  court,  the  opinion  of  the  presiding 
justice  or  judge  shall  prevail,  and  be  considered  the  opinion  of  the 
court  for  the  time  being. 

R.  S.  §  650,  U.  S.  Comp.  Stat.  1901,  p.  527. 

The  section  was  first  enacted  in  1872.7  The  further  provision  of  R.  S. 
§  652,  for  certifying  such  cases  to  the  Supreme  Court  is  superseded  by  the 
circuit  court  of  appeals  act  of  1891.8 

§  111.     Whose  opinion  prevails  where  district  judge  holds  circuit 
court  vidth  other  judges. 
A  district  judge  sitting  in  a  circuit  court  shall  not  give  a  vote 
in  any  case  of  appeal  or  error  from  his  own  decision.    .    .    .     When 
he  holds  a  circuit  court  with  either  of  the  other  judges,  the  judg- 
ment or  decree  in  such  cases  shall  be  rendered  in  conformity  with 
the  opinion  of  the  presiding  justice  or  judge. 
Part  of  R.  S.  §  614. 

The  first  part  of  the  above  and  the  part  omitted  deal  with  the  appel- 
late power  of  the  circuit  court,  and  are  not  in  force,  since  the  appellate 

3Act  Apr.  10,  1809,  c.  22,  16  Stat.  7Act  June  1,  1872,  c.  255,  17  Stat. 
44.  196. 

4Post,  §  472.  sSee  ante,  §  42,[a]  §  39. 

304 


i 


Procedure]  SUITS  TRANSFERRED  TO  ANOTHER  CIRCUIT.  §   112 

powers  of  that  coui't  were  taken  away  by  the  act  of  1891.1  o     But  there  is 
i-oom  for  arguing  that  the  latter  portion  of  the  section  is  still  in  force. 

§  112.     Suit   transferred   to   another   circuit   court   in   case    of 
disability. 

When  it  appears  in  any  civil  suit  in  any  circuit  court  that  all 
of  the  judges  thereof  who  are  competent  by  law  to  try  said  case  are 
in  any  way  interested  therein,  or  have  been  of  counsel  for  either 
party,  or  are  so  related  or  connected  with  either  part}^  as  to  render 
it,  in  the  opinion  of  the  court,  improper  for  them  to  sit  in  such 
trial,  it  shall  be  the  duty  of  the  court,  on  the  application  of  either 
party,  to  cause  the  fact  to  be  entered  on  the  records,  and  to  make  an 
order  that  an  authenticated  copy  thereof,  with  all  the  proceedings  in 
the  case,  shall  be  forthwith  certified  to  the  most  convenient  circuit 
court  in  the  next  adjoining  State  or  in  the  next  adjoining  circuit; 
and  said  court  shall,  upon  the  filing  of  such  record  and  order  with 
its  clerk,  take  cognizance  of  and  proceed  to  hear  and  determine  the 
case,  in  the  same  manner  as  if  it  had  been  rightfully  and  originally 
commenced  therein;  and  the  proper  process  for  the  due  execution 
of  the  judgment  or  decree  rendered  in  the  cause  shall  run  into  and 
may  be  executed  in  the  district  where  such  judgment  or  decree  was 
rendered,  and  also  into  the  district  from  which  the  cause  was  re- 
moved. 

R.  S.  §  616,  U.  S.  Comp.  Stat.  1901,  p.  495. 

By  the  provisions  of  R.  S.  §§  591-595,1 1  another  district  judge  may  be 
designated  to  perform  the  duties  of  a  disabled  district  judge  in  both  the 
district  and  circuit  courts.  Disqualification  is  not  established  by  an  un- 
verified petition  filed  in  a  cause  alleging  that  the  judge's  wife  had  bought 
an  interest  in  the  land  in  controversy.!  2  The  fact  that  a  judge  is  one  of 
the  parties  in  a  collision  suit  does  not  disqualify  him  from  hearing  and  de- 
termining a  suit  to  fix  the  liabilities  of  sureties  on  an  appeal  bond  in  the 
former  suit. is  Nor  does  the  fact  that  a  judge  is  a  creditor  of  a  bankrupt, 
disqualify  him  from  reviewing  an  order  in  the  bankruptcy  proceedings, 
where  he  has  sold  his  claim  and  received  compensation  therefor. i*  Upon 
a  proper  case  arising  under  the  section,  a  motion  to  remove  should  be  made 
by  one  of  the  parties,  and  the  order  of  removal  may  be  made  by  the  dis- 
qualified judge.  15 

The  "most  convenient  court"  is  that  court  which  is  competent  to  act, 

lOSee  §  70.  i-iln   re   Sime,   2   Sawy.   320,   Fed. 

iiPost,   §   172  et  seq.  Cas.  No.   12.860. 

i2McGuire  v.  Blount,  199  h.  S.  142,  isThe  Richmond,  9  Fed.  86.3.  See 
60  L.  ed.  125,  26  Sup.  Ct.  Rep.  1.  also  Spencer  v.  Lapsley,  20  How.  266, 

i3Tlie  Ricihmond,   9   Fed.  863.  15  L.  ed.  904. 

Fed.  Proc— 20.  305 


§   113  THE    CIRCUIT   COURT.  [Code  Fed. 

and  nearest  to  the  subject  of  the  controversy,  the  witnesses,  the  parties, 
and  the  court  Mhence  the  removal  is  to  take  place; is  and  upon  the  trans- 
fer it  is  the  duty  of  that  court  to  take  cognizance  of  the  suit  and  try  it 
as  if  originally  brought  there. i"  It  has  all  the  powers  necessary  to  carry 
the  litigation  into  a  judgment  or  decree,  and  hence  may  issue  a  subpoena  to 
the  marshal  of  the  district  in  another  State  from  which  the  case  was  trans- 
ferred.! s 

§  113.     When  such  causes  certified  back. 

The  circuit  jiiptice,  or  the  circuit  judge  of  any  circuit,  may  order 
any  civil  cause,  which  is  certified  into  any  court  of  the  circuit  under 
the  provisions  of  the  preceding  section,  to  be  certified  back  to  the 
court  whence  it  came;  and  then  the  latter  shall  proceed  therein  as 
if  the  cause  had  not  been  certified  from  it:  Provided,  That  if,  for 
any  reason,  it  shall  be  improper  for  the  judges  of  such  court  to 
try  the  cause  so  certified  back,  it  shall  be  tried  by  some  other  judge 
holding  such  court,  pursuant  to  the  provisions  of  the  next  section. 
R.  S.  §  616,  U.  S.  Comp.  Stat.  1901,  p.  495. 

§  114,     Justices  may  hold  courts  of  other  circuits  on  request. 

Whenever  a  circuit  justice  deems  it  advisable  on  accoimt  of  his 
disability  or  absence,  or  of  his  having  been  of  counsel,  or  being 
interested  in  any  case  pending  in  the  circuit  court  for  any  district 
in  his  circuit'  or  of  the  accumulation  of  business  therein,  or  for 
any  other  cause,  that  said  court  shall  be  held  by  the  justice  of  any 
other  circuit,  he  may,  in  writing,  request  the  justice  of  any  other 
circuit  to  hold  the  same,  during  a  time  to  be  named  in  the  request; 
and  such  request  shall  be  entered  upon  the  journal  of  the  circuit 
court  so  to  be  holden.  Thereupon  it  shall  be  lawful  for  the  justice 
so  requested  to  hold  such  court,  and  to  exercise  within  and  for 
said  district,  during  the  time  named  in  said  request,  all  the  powers 
of  the  justice  of  such  circuit. 

R.  S.  §  617,  U.  S,  Comp.  Stat.  1901.  p.  495. 

§  115.  — in  cases  where  no  justice  is  alloted  to  a  circuit. 

Whenever,  by  reason  of  death  or  resigniation,  no  justice  is  allotted 
to  a  circuit,  the  Chief  Justice  of  the  Supreme  C*ourt  may  make  a 

ifiRichardson  v.  Boston.  1  Cuvi.  i^See  Lee  County  v.  Rogers.  7  Wall, 
250,  Fed.  Gas.  No.  11,780.  181.  19  L.  ed.  160. 

isMay  V.  Le  Claire,  18  Fed.  49. 
806 


Procedure]  DISTHICT  COURT  MATTERS   CERTIFIED.  S   117 

request  as   provided  in   the   preceding   section,   which  shall   have 
effect  in  like  manner  until  a  justice  is  allotted  to  such  circuit. 
R.  S.  §  618,  U.  S.  Comp.  Stat.  1901,  p.  496. 

This  and  the  previous  section  were  carried  into  the  Revised  Statutes 
from  an  act  of  1863.1 

§  116.     When   district   court   matters   to   be   certified   into   and 
disposed  of  in  circuit  court. 

When  satisfactoi-}'  evidence  is  shown  to  the  circuit  judge  of  any 
circuit,  or,  in  his  absence,  to  the  circuit  justice  allotted  to  the  cii- 
cuit,  that  the  judge  of  any  district  therein  is  disabled  to  hold  a 
district  court,  and  to  perform  the  duties  of  his  office,  and  an  ap- 
plication accordingly  is  made  in  writing  to  such  circuit  judge  or 
justice,  by  the  district  attorney  or  marshal  of  the  district,  the  said 
judge  or  justice,  as  the  case  may  be,  ma}'  issue  his  order  in  the 
nature  of  a  certiorari,  directed  to  the  clerk  of  such  district  court, 
requiring  him  forthwith  to  certi'fy  into  the  next  circuit  court  to 
be  held  in  said  district  all  suits  and  processes,  civil  and  criminal, 
depending  in  said  district  court,  and  undetermined,  with  all  the 
proceedings  thereon,  and  all  the  files  and  papers  relating  thereto. 
Said  order  shall  be  immediately  published  in  one  or  more  news- 
papers printed  in  said  district,  at  least  thirty  days  before  the  session 
of  such  circuit  court,  and  shall  be  sufficient  notification  to  all  con- 
cerned; and  thereupon  the  circuit  court  shall  proceed  to  hear  and 
determine  the  suits  and  processes  so  certified.  And  all  bonds  and 
rcognizances  taken  for,  or  returnable  to,  such  district  court,  shall 
be  held  to  be  taken  for,  and  returnable  to,  said  circuit  court,  and 
shall  have  the  same  effect  therein  as  they  could  have  had  in  the 
district  court  to  which  they  were  taken. 
R.  S.   §  587,  U.  S.  Comp.  Stat.  1901.  p.  479. 

By  the  provisions  of  R.  S.  §§  591-5952  another  district  pidge  may  be 
designated  to  perform  the  duties  of  a  disabled  district  judge  in  both  the 
district  and  circuit  courts. 

§  117.     District    court    matters   subsequent   to    certifying    order 
also  to  be  transmitted. 
When  an  order  has  been  made  as  provided  in  the  preceding  sec- 
tion, the  clerk  of  the  district  court  sluill   continue,   during   the 

lAct  Mar.  3.   1863,  c.  93.   12  Stat.        2Post.   §    172  et  sen. 
768. 

307 


S  118  THE    CIRCUIT    COURT.  [Code  Fed. 

disability  of  the  district  judge,  to  certify,  as  aforesaid,  all  suits, 
pleas,  and  processes,  civil  and  criminal,  thereafter  begun  in  said 
court,  and  to  transmit  them  to  the  circuit  court  next  to  be  held 
in  that  district;  and  the  said  court  shall  proceed  to  hear  and  de- 
termine them  as  provided  in  said  section :  Provided,  That  when  the 
disability  of  the  district  judge  ceases  or  is  removed,  the  circuit 
court  shall  order  all  such  suits  and  proceedings  then  pending  and 
undetermined  therein,  in  which  the  district  courts  have  an  exclusive 
original  cognizance,  to  be  remanded,  and  the  clerk  of  such  court 
shall  transmit  the  same,  with  all  matters  relating  thereto,  to  the 
district  court  next  to  be  held  in  that  district;  and  the  same  pro- 
ceedings shall  then  be  had  in  the  district  court  as  would  have  been 
had  if  such  suits  had  originated  or  been  continued  therein. 
R.  S.  §  5SS,  U.  S.  Comp.  Stat.  1901,  p.  479. 

This  and  the  following  section  were  carried  into  the  Revised  Statutes 
from  an  act  of  1809.4 

§  118.     Powers   of   district  judge  vested,   during  disability,   in 
circmt  judge. 

In  the  case  provided  in  the  two  preceding  sections  the  circuit 
judge,  and  in  his  absence  the  circuit  justice,  shall  have  and  exercise, 
during  such  disability,  all  the  powers  of  every  kind  vested  by  law 
in  such  district  judge.  But  this  provision  does  not  require  them 
to  hold  any  special  court,  or  court  of  admiralty,  at  any  other  time 
than  that  fixed  by  law  for  holding  the  circuit  court  in  said  district 
R.  S.  §  589,  U.  S.  Comp.  Stat.  1901,  p.  480. 

§  119.  Duty  of  disabled  district  judge  to  certify  and  of  cir- 
cuit judge  to  take  cognizance. 
Whenever  it  appears  that  the  judge  of  any  district  court  is  Ie 
any  way  concerned  in  interest  in  any  suit  pending  therein,  or  has 
been  of  counsel  for  either  party,  or  is  so  related  to  or  connected  with 
either  party  as  to  render  it  improper,  in  his  opinion,  for  him  to 
•sit  on  the  trial,  it  shall  be  his  duty,  on  application  by  either  party, 
to  cause  the  fact  to  be  entered  on  the  records  of  the  court ;  and,  also, 
an  order  that  an  authenticated  copy  thereof,  with  all  the  proceedings 
in  the  suit,  shall  be  forthwith  certified  to  the  next  circuit  court 
for  the  district;  and  if  there  be  no  circuit  court  therein,  to  the 

4Act  Mar.   2,   1809,   c.  27,  2   Stat. 
534-535. 

308 


Procedure]       JURISPRUDENCE  OF  TRANSFERRED  MATTERS.  §   120 

next  circuit  court  in  the  State;  and  if  there  be  no  circuit  coiiri 
in  the  State^  to  the  next  convenient  circuit  court  in  an  adjoining 
State;  and  the  circuit  court  shall,  upon  the  filing  of  such  record 
with  its  clerk,  take  cognizance  of  and  proceed  to  hear  the  case,  in 
like  manner  as  if  it  had  originally  and  rightfully  been  commenced 
therein. 

R.  S.  §  601,  U.  S.  Comp.  Stat.  1901  ,p.  484. 

A  district  judge  who  was  a  resident  citizen  and  taxpayer  of  a  county,, 
was  held  not  to  be  disqualified  by  pecuniary  interest,  from  sitting  in  a 
case  involving  the  validity  of  bonds  issued  by  the  county.6 

§  120.  Circuit  court's  jurisdiction  of  transferred  district  comt 
matters. 
When  any  cause,  civil  or  criminal,  of  whatever  nature,  is  removed 
into  a  circuit  court,  as  provided  by  law,  from  a  district  court  where- 
in the  same  is  cognizable,  on  account  of  the  disability  of  the  judge 
of  such  district  court,  or  by  reason  of  his  being  concerned  in  interest 
therein,  or  having  been  of  counsel  for  either  party,  or  being  so. 
related  to  or  connected  with  either  party  to  such  cause  as  to  render 
it  improper,  in  his  opinion,  for  him  to  sit  on  tne  trial  thereoj. 
such  circuit  court  shall  have  the  same  cognizance  of  such  cause,, 
and  in  like  manner,  as  the  said  district  court  might  have,  or  as 
said  circuit  court  might  have  if  the  same  had  been  originally  and 
lawfully  commenced  therein;  and  shall  proceed  to  hear  and  deter- 
mine the  same  accordingly. 

R.  S.  §  637,  as  amended  act  Feb.  27,  1877,  c.  69,  19  Stat.  241,  U.  S.  Comp. 
Stat.  1901,  p.  519. 

^Wade  v.  Travis  Co.  72  Fed.  985. 


309 


:§ 

127. 

■:§ 

128. 

§ 

129. 

4; 

130. 

Jj 

131. 

§ 

132. 

?! 

133. 

CHAPTER  5. 

CIRCUIT  COURT.— .JURISDICTION. 

I  124.     Circuit   court's   jurisdiction    under   R.    S.    §    629 — suits   by   United 
States  or  officei-s,  and  arising  under  import,  revenue  and  postal 
laws. 
.<  125.     — suits    for   penalties,    condemnation    of   insurrectionary    property, 

slave  trade  and  on  debentures. 
S  126.     — patent  and  copyright  suits,  national  banks  and  suits  against  Fed- 
eral officers  for  acts  done  imder  Federal  laws. 

— suits  for  offices,  removal  of  officers,  etc.,  under  civil  rights  laws. 

— sviits  for  punishing  vessel  owners  and  officers  causing  death. 

Jurisdiction  over  cases  arising  under  Federal  Constitution,  treaties 
or  laws. 

Jiuisdiction  where  United  States  are  plaintifls  or  petitioners. 

In  cases  of  diverse  citizenship,  or  land  grants  from  different  states. 

.Jurisdiction  of  crimes  and  ofl"enses. 

Removal  of  causes  arising  under  Federal  Constitution,  treaties  or 
laws. 
134.     Removal  of  causes  where  United  States  are  parties,  diverse  citizens- 
ship  or  land  grants  from  different  States. 

Removal  of  separable  controversies. 

Removal  on  ground  of  prejudice  or  local  influence. 

Removal  of  causes  against  persons  denied  any  civil  rights,  etc. 

Removal  of  causes  against  revenue  and  registration  officers. 

Concurrent  jurisdiction  with  Court  of  Claims. 

Jurisdiction  over  revenue  decisions  of  general  appraisers. 

Jurisdiction  of  partition  suits  where  United  States  are  parties. 

Over  proceedings  under  anti-trust  act  of  1890. 

Jurisdiction  to  enforce  injunction  in  copyright  cases. 

Jurisdiction  to  prevent  combinations  restraining  import  trade. 

To  remove  structures  obstructing  navigation. 

To  mandamus  marshals,  clerks,  etc.,  to  make  return  of  fees. 

Jurisdiction  over  suits  for  penalties  under  alien  immigrant  laws. 

Over  suit  on  defaulting  paper  contractor's  bond. 

Jurisdiction  of  suits  to  determine  right  to  Indian  allotments. 

Circuit  and  district  court's  jurisdiction  over  government  condemna- 
tion suits. 
-over  damage  suits  under  interstate  commerce  act. 
-of  mandamus  to  compel  equal  facilities  to  shippers. 

310 


§ 

1.35. 

§ 

136. 

§ 

137. 

s 

138, 

s 

139. 

§ 

140. 

§ 

141. 

§ 

142. 

§ 

143. 

§ 

144. 

§ 

145. 

s 

146. 

s 

147. 

§ 

148. 

§ 

149. 

§ 

150. 

§ 

151.- 

§ 

152.- 

Z'rocedure]  JURISDICTION  UNDER  R.  S.  §  629.  §   124   [a] 

S  153. — under  alien  iniiuigiant  laws. 

§  154. — of  suits   for  unlawful  occupancy  of  public  lands. 

§  155. — over  crimes  in  Indian  reservations  in  South  Dakota. 

§  156. — over  alien  enemies. 

§  157. — over  oflenses  committed  upon  the  great  lakes. 

§  158. — to  enforce  awards  of  foreign  consuls. 

§  159.     Jurisdiction  to  mandamus  Union  Pacific  R.  R. 

S  160.     Removal  of  suits  by  aliens  against  Federal  officers. 

§  161. — over  creditors'  bills  affecting  national  banks. 

§  162. — of  suits  respecting  trade  marks. 

§  124.  Circuit  court's  jurisdiction  under  R.  S.  §  629 — suits 
by  United  States  or  officers,  and  arising  under  im- 
port, revenue,  and  postal  laws. 
The  circuit  courts  shall  have  original  jurisdiction :  .  .  .  Sec- 
ond. Of  all  suits  in  equity  where  the  matter  in  dispute,  exceeds  the 
sum  or  value  of  five  hundred  dollars,  and  the  United  States  are 
petitioners. "^^^  Third.  Of  all  suits  at  common  law  where  the  United 
States,  or  any  officer  thereof  suing  under  the  authority  of  any 
act  of  Congress,  are  plaintilfs.^''^  Fourth.  Of  all  suits  at  law  or 
in  equity,  arising  under  any  act  providing  for  revenue  from  imports 
or  tonnage,  except  civil  causes  of  admiralty  or  maritime  jurisdic- 
tion, and  seizures  on  land  or  on  waters  not  within  admiralty  and 
maritime  jurisdiction,  and  except  suits  for  penalties  and  forfeit- 
ures; of  all  causes  arising  under  any  law  providing  internal  reven- 
ue and  of  all  causes  arising  under  the  postal  laws.f'^^ 

Pars.  2,  3  and  4  of  R.  S.  §  629,  U.  S.  Comp.  Stat.  1901,  p.  503. 

[a]     In  general — equity  suits  by  United  States. 

In  construing  the  provisions  of  R.  S.  §  629,  of  which  the  above  section  is 
a  part,  and  the  subsequent  act  of  1875  as  amended  and  corrected  in  1887- 
1888,  the  Supreme  Court  has  held  that  the  latter  provision  was  not  intended 
t(i  interfere  with  prior  statutes  conferring  jurisdiction  on  the  circuit  and 
district  courts  in  special  eases  and  over  particular  subjects,  nor  to  divide 
the  jurisdiction  vested  exclusively  in  the  district  courts.!  The  same  con- 
struction was  placed  on  the  original  act  of  1875.2  The  equity  jurisdiction 
of  suits  by  the  United  States  as  set  forth  in  the  second  paragraph  above, 
is  apparently  superseded  by  the  subsequent  act  of  1875  as  amended  in 
1887-1888,  whifh  gives  the  circuit  court  jurisdiction  of  all  suits  in  equity 
in  which  the  United   States  are   petitioners   regardless  of  the  amount   in 

iln  re  Hohorst.  150  U.  S.  653,  37  S.  104,  29  L.  ed.  5.50,  6  Sup.  Ct.  Rep. 
L.  ed.  1211,  14  Sup.  Ct.  Rep.  221.  304;  Mem,  11  Fed.  476;  Price  v.  Ab- 

2United  States  v.  IMooney.   116  U.    bott,  17  Fed.  508. 

311 


§   124    [b] 


CIRCUIT     COURT— JURISDICTION. 


[Code  Fed. 


controversy.3     Under  the  above  provision  it  was  held  that  the  circuit  court 
had  jurisdiction  of  a  creditor's  bill  brought  by  the  United  States.* 

[b]  Common  law  suits  by  United  States  or  officers  thereof. 

The  district  courts  are  also  given  jurisdiction  of  common  law  suits  by  the 
United  States  "or  by  any  officer  thereof  authorized  by  law  to  sue."5  The 
right  of  United  States  to  bring  a  common  law  suit  in  the  circuit  court  is 
given  al«o  by  the  act  of  1875  as  amended. 6  Under  this  provision  the 
circuit  courts  have  jurisdiction  over  suits  by  the  postmaster  general  upon 
official  bonds  of  postmasters. ^  A  receiver  of  a  national  bank  is  a  United 
States  officer  within  the  meaning  of  the  provisions  as  is  also  an  agent  of  a 
national  bank  who  has  displaced  a  receiver.  9  But  the  provision  does  not 
apply  to  a  suit  against  a  receiver.io 

[c]  Suits  under  import,  internal  revenue  and  postal  laws. 

By  the  fourth  paragraph  of  R.  S.  §  629,  above  set  forth,  the  circuit  courts 
have  jurisdiction  of  all  suits  at  law  or  equity  arising  under  any  act  pro- 
viding for  a  revenue  from  imports  or  tonnage,  irrespective  of  the  amount 
involved.  The  provision  evidently  includes  all  actions  against  customs 
officers  acting  under  color  of  their  office.  12  Hence  it  would  include  an 
action  againci  a  collector  to  recover  back  duties  assessed  upon  non-im- 
portable property.! 3  The  provision  gives  jurisdiction  also  over  suits  aris- 
ing under  statutes  providing  for  internal  revenue.14  A  suit  against  the 
heirs  and  executors  of  an  internal  revenue  collector  to  recover  taxes  illegal- 
ly collected  is  within  the  provision. is  But  an  allegation  in  a  complaint 
that  plaintiffs  claim  title  through  a  certain  revenue  law  is  not  sufficient  to 
give  the  circuit  court  jurisdiction  where  t'he  plaintiffs'  title  in  that  respect 
is  not  disputed.!  6  The  jurisdiction  of  suits  for  penalties  and  forfeitures 
arising  under  acts  providing  for  revenue  from  imports  and  tonnage  is  de- 
nied the  circuit  courts  by  this  provision.  1 7  The  district  coui-ts  have 
jurisdiction  in  such  cases.is  But  circuit  courts  have  jurisdiction  of 
penalties  and  forfeitures  arising  under  the  internal  revenue  laws. 1 9 


3  Post,  §  130. 

^United  States  v.  Stiner,  8  Blatchf. 
544,  Fed.  Cas.  No,  16,404, 

BPost,  §  196. 

sPost,   §   130, 

'Postmaster  General  v.  Early,  12 
Wheat.  136,  6  L.  ed.  577. 

sScofield  V.  Palmer,  134  Fed.  753; 
Brown  v.  Smith,  88  Fed.  565;  see  also 
Gibson  v.  Peters.  150  U.  S.  344,  37 
L.  ed,  1106,  14  Sup.  Ct.  Rep.  134: 
Kennedy  v.  Gibson,  8  Wall.  498.  19 
L.  ed.  476;  Price  v.  Abbott,  17  Fed, 
508;  Rankin  v.  Herod,  130  Fed.  390, 
See  ante,  §  24. 

sMcConville  v.  Gilmour,  36  Fed. 
277,  1  L.R.A.  498. 

lOHallam  v.Tillinghast,  75  Fed.  849. 

31 


i2Do<wnes  v.  Bidwell,  182  U.  S.  248, 
45  L.  ed.  1091,  21  Sup.  Ct.  Ren,  770. 

isldem. 

i^Spreckles,  etc.  Co.  v.  McClain, 
192  U.  S.  407,  48  L,  ed.  499,  24  Sup. 
Ct.  Rep.  376. 

15 Sinking  Fund  Comm'rs  v.  Buck- 
ner,  48  Fed.  533. 

i6Ex  parte  Smith,  94  U.  S.  455, 
25  L.  ed.  211. 

iTCoffey  V.  United  States,  116  U. 
S.  433,  29  L.  ed.  683,  6  Sup.  Ct,  Rep. 
432. 

18 See  post,  §  195. 

19 Coffey  V.  United  States,  116  U. 
S.  427,  29  L.  ed.  083,  6  Sup.  Ct. 
Rep.  432, 


Procedure]  UNDER  R.  S.   §   629.  §  126 

§  125.  — suits  for  penalties,  condemnation  of  insurrectionary 
property,  slave  trade  and  on  debentures. 
The  circuit  courts  shall  have  original  jurisdiction.  .  .  .  Fifth. 
Of  all  suits  and  proceedings  for  the  enforcement  of  any  penalties 
provided  by  laws  regulating  the  carriage  of  passengers  in  merchant 
vessels.  Sixth,  Of  all  proceedings  for  the  condemnation  of  prop- 
erty taken  as  prize,  in  pursuance  of  section  fifty-three  hundred  and 
eight.  Title  "Insurrection."  Seventh.  Of  all  suits  arising  under 
any  law  relating  to  the  slave  trade.  Eighth.  Of  all  suits  by  the 
assignee  of  any  debenture  for  drawback  of  duties,  issued  under  any 
law  for  the  collection  of  duties  against  the  person  to  whom  such 
debenture  was  originally  granted,  or  against  any  indorser  thereof, 
to  recover  the  amount  of  such  debenture. 

Pars.  5,  6,  7  and  8  of  R.  S.  §  629,  U.  S.  Comp.  Stat.  1901,  p.  506. 

The  fifth  paragraph  of  R.  S.  §  629,  was  originally  enacted  in  1855.1  The 
venue  of  suits  for  penalties  and  forfeitures  is  set  forth  in  a  following 
chapter. 2  The  sixth  paragraph  was  carried  into  the  Revised  Statutes  from 
an  act  of  1861.3  In  construing  that  act  the  Supreme  Court  held  that  the 
circuit  court  had  jurisdiction  of  proceedings  for  the  condemnation  of  real 
estate  and  property  on  land  as  well  as  maritime  prizes.*  Paragraph  eight 
set  forth  above,  was  originally  enacted  in  1799.5 

§  126.  — patent  and  copyright  suits,  national  banks  and  suits 
against  Federal  officers  for  acts  done  under  Federal 
laws. 

The  circuit  courts  shall  have  original  jurisdiction:  .  .  . 
Ninth.  Of  all  suits  at  law  or  in  equity  arising  under  the  patent^**^^ 
or  copyright  laws"^^^  of  the  United  States.  Tenth.  Of  all  su^.ts 
by  or  against  any  banking  association  established  in  the  district  for 
which  the  court  is  held,  under  any  law  providing  for  national  baiilc- 
ing  associations. '^'^^  Eleventh.  Of  all  suits  brought  by  any  banking 
association  established  in  the  district  for  which  the  court  is  held, 
under  the  provisions  of  Title  "The  National  Banks,"  to  enjoin  the 
Comptroller  of  the  Currency  or  any  receiver  acting  under  his  di- 
rection, as  provided  by  said  title. '^''^  Twelfth.  Of  all  suits  brought 
by  any  person  to  recover  damages  for  any  injury  to  his  person  or 
property  on  account  of  any  act  done  by  him,  under  any  law  of  the 

lAct  Mar.  3,  1855,  c.  213,  10  Stat.  4Union  Ins.  Co.  v.  X'nited  States, 
720.  6  Wall.  763.  18  L.  ed.  882. 

2Post,  §421.  5Act  Mar.   2.  1799,   c.   22,   1    Stat. 

3 Act  Aug.  6.  1861.  c.  60,  12  Stat.    687. 
S19. 

313 


§  126  [a] 


CIRCUIT    COURT — JURISDICTION. 


[Code  Fed. 


United  States  for  the  protection  or  collection  of  any  of  the  revenues 
thereof,  or  to  enforce  tlie  right  of  citizens  of  the  United  States  to 
vote  in  the  several  States. 

Pars.  9,  10,  11  and  12  of  R.  S.  §  629,  U.  S.  Comp.  Stat.  1901,  pp.  504, 
505. 

£a]     Suits  under  patent  laws. 

The  jurisdiction  vested  in  the  circuit  courts  over  patent  and  copyright 
suits  is  exclusive  of  the  State  courts. s  To  constitute  a  suit  arising  under 
the  patent  laws  the  plaintiff  must  set  uj)  some  right,  title  or  interest  under 
those  laws,  or  at  least  make  it  appear  that  some  right  or  interest  will  1)« 
defeated  by  one  construction  or  sustained  by  the  opposite  construction  of 
such  laws. 9  It  is  held  that  a  suit  by  a  licensee  of  a  patent  against  a 
patentee  and  a  third  party  claiming  under  subsequent  license,  for  infringe- 
ment of  the  patent,  in  which  the  bill  sets  up  title  under  the  license,  is  a  suit 
under  the  patent  laws,  although  the  defense  alleges  that  plaintiff  has 
forfeited  his  rights  by  failure  to  comply  with  the  terms,  lo  A  suit  for  in- 
junction and  recovery  of  damages,  for  infringement  of  patent  arises  under 
the  patent  laws,  although  incidentally  involving  a  question  as  to  the  owner- 
ship of  the  patent.!  ^ 

It  is  well  settled,  however,  that  a  suit  brought  to  enforce  or  set  aside 
a  contract,  though  such  contract  be  connected  with  a  patent  is  not  a  suit 
under  the  patent  laws.  1 3  Thus  a  bill  to  inforce  the  specific  execution  of  a 
contract  respecting  the  use  of  the  patent  is  not  a  case  under  the  patent 
laws,i4  nor  is  a  bill  to  recover  royalties; is  nor  an  action  by  owner  of 
natent  upon  an  agreement  to  make  and  sell  certain  articles.16.  Where  the 
bill  states  a  contract  between  the  parties  which  the  complainant  seeks  to 
have  set  aside  in  order  to  pursue  the  defendant  as  an  infringer,  the  suit 
does  not  arise  under  the  patent  laws.i^  Nor  does  it  so  arise  on  a  complaint 
setting  forth   the  illegal  assessment  of  taxes  on   patents, is  or  in  case  of 


^Ante.  §   15.  Mowing,  etc    "Sliwh.    Co.    v.    Skinner. 

sPratt  V.  Paris,  etc.  Oo.  168  U.  S.    139  U.  S.  29:j.  .35  L.  ed.  193.  11  Sup. 
259,  42  L.  ed.  460,  18  Sup.  Ct.  Rep.    Ct.  Rep.  528. 

i4Pliable  Shoe  Co.  v.  Bryant.  81 
Fed.  521 :  Kurtz  v.  Strauss,  'lOO  Fed. 
800;  Brown  v.  Shannon,  20  How.  55. 
15  L.  ed.  826.     See  also  Wade  v.  Law- 


62. 

lOExcelsior.  etc.  Co.  v.  Bridge  Co. 
185  U.  S.  285,  46  L.  ea.  913,  22  Sup. 
Ct.   Rep.   681. 


iiAtherton,  etc  Co.  v.  Atwood  Co.  der.    165   U.    S.   624,    41    L.    ed.   851. 

102   Fed.   949,  43  C.   C.  A.   72;    Har-  1"  I^np-  Ct.  Rep.  425. 

rington  v.  Atlantic  &  P.  T.  Co.   143  is  Albright  v.  Teas,  106  U.  S.  613. 

Ved.  .329.  27  L.  ed.  295,  1  Sup.  Ct.  Rep.  550. 

isFxcelsior.     etc.     Co.     v.     Pacific  isDale  Tile  Mfg.  Co.  v.  Hvatt,  125 

Bridge  Co.   185  U.  S.  285.  46  L.  ed.  U.   S.  46,  25  L.  ed.   683,   8   Sup.   Ct. 

913.  22  Sup.   Ct.  Rep.  681;   Pratt  v.  Rep.  756. 

Paris,  etc.   168  U.   S.   255.  42  L.   ed.  I'Abherton.  etc.  Co.  v.  Atwod,  etc. 

458.   18   Sup.   Ct.  Rep.   62;    Wade  v.  Co.   102   Fed.   949.  43  C.  C.  A.  72. 

Lawder.  165  U.  S.  024.  41  L.  ed.  851,  isHolt  v.  Indiana  Mfg.  Co.  176  U. 

17  Sup.  Ct.  Rep.  425;    Dale,  etc.  Co.  S.  08.  44  L.  ed.  374.  20  Sup.  Ct.  R«p. 

v.  Hyatt,  125  U.  S.  46.  31  L.  ed.  683,  272. 
8  Sup.  Ct.  Rep.  756 ;  Walter  R.  Wood 

314 


Procedure]  UNDER   R.   S.   §   629.  §  127 

suit  to  enforce  judgment  against  patent  rights. is     Suits  arising  under  the 
patent  and  copyright  laws  are  more  fully  discussed  in  a  previous  section.21) 

[bj     Suits  under  copyright  laws. 

A  suit  does  not  arise  under  the  Federal  copyright  laws  upon  a  bill  alleg- 
ing tlie  composing  of  a  copyrightable  song  by  the  plaintiif  and  the  unlaw- 
ful obtaining  of  a  copyright  by  the  defendant,  there  being  no  allegation  of 
infringement  of  copyright  nor  any  question  as  to  its  scope  or  legality.  1 
But  a  suit  to  recover  a  penalty  for  infringement  of  copyright  under  R.  S.  § 
4flG5,  is  one  arising  under  the  copyright  laws,  since  it  involves  both  the 
validity  and  infringement  of  the  copyright. 2 

l.cj     Suits  by  and  against  national  banks. 

Paragraph  nine  as  set  forth  above  was  originally  enacted  in  1864.^ 
Jurisdiction  of  such  suits  was  also  given  to  the  district  courts. »  By  a 
later  act  of  1888.6  however,  national  banks  are  deemed  citizens  of  the 
State  of  their  location  and  the  circuit  and  district  courts  have  no  other 
jurisdiction  over  suits  by  and  against  them,  than  such  as  they  Mould  haxr 
in  cases  between  individual  citizens  of  the  State.  This  latter  act,  however, 
expressly  pro\ndes  that  its  provisions  shall  not  affect  Federal  jurisdiction 
in  cases  commenced  by  the  United  States  or  its  officers,  or  in  cases  for 
winding  up  the  affairs  of  such  banks.  Suits  under  the  first  of  these  excep- 
tions are  governed  by  paragraph  three  of  R.  S.  §  629:"  but  suits  under  the 
second  exception  are  still  apparently  governed  by  the  above  provision. 
Whether  the  Federal  jurisdiction  in  the  latter  case  is  exclusive  or  con- 
current with  the  Stat^  courts  quaere. s 

[d]     Suits  to  enjoin  Comptroller  of  the  Currency. 

As  originally  enacted  in  ]8()4io  tin-  eleventh  paragraph  set  forth  above, 
read  "Of  all  suits  brought  by  or  agaiii.«t."  The  phrase  "or  against"  was 
stricken  out  by  the  later  act  of  1875.1 1  The  venue  of  proceedings  by 
national  banks  to  enjoin  a  comptroller  is  set  forth  in  a  following  chapter.i  2 

§  127.  — suits  for  offices  and  removal  of  officers,  etc.,  under 
civil  rights  laws. 
The  circuit  courts  sliall  liave  original  jurisdiction:  .  .  . 
Tliirteenth.  Of  all  suits  to  recover  possession  of  any  office,  except 
that  of  elector  of  President  or  Vice  President,  Kepresentative  or 
Delegate  in  Congress,  or  member  of  a  State  legislature,  autliorized 

i»Ryan  v.  Lee.  10   Fed.  917.  7Ante.   §    124.[b]     Stephens  v.   Ber- 

20Ante.  §  1.5.  navs,  41  Fed.  401. 

iHovt  v.  Bates,  81   Fed.  (54.5.  SLake  National  Bank  v.  Wolfebor- 

-'Falk  V.  Curtis  Pub.  Co.   100  Fed.  ougli.  78  Fed.  519,  24  C.  C.  A.  195. 

77.  10 Act,  June  3.  1864,  c.  106.  13  Stat. 

Met  June  3,  1864,  c.  106,  §  57,  13  116. 

Stat.  IKi.  11  Act,  Feb.  18,  1875.  c.  80,  18  Stat. 

sPosl.  s  -207.  318. 

«Ante.  S  24.  12 Post,  §  415. 

315 


§  127  CIRCUIT   COURT— JURISDICTION.  [Code  Fed 

by  law  to  be  brought,  wherein  it  appears  that  the  sole  question 
touching  the  title  to  such  office  arises  out  of  the  denial  of  the  right 
to  vote  to  any  citizen  offering  to  vote,  on  account  of  race,  color,  or 
previous  condition  of  servitude:  Provided,  That  such  jurisdiction 
shall  extend  only  so  far  as  to  determine  the  rights  of  the  parties 
to  such  office  by  reason  of  the  denial  of  the  right  guaranteed  by 
the  Constitution  of  the  United  States,  and  secured  by  any  law  to 
enforce  the  right  of  citizens  of  the  United  States  to  'vote  in  all  the 
States.  Fourteenth,  Of  all  proceedings  by  the  writ  of  quo  war- 
ranto, prosecuted  by  any  district  attorney,  for  the  removal  from 
office  of  any  person  holding  office,  except  as  a  member  of  Congress 
or  of  a  State  legislature,  contrary  to  the  provisions  of  the  third  sec- 
tion of  the  Fourteenth  Article  of  Amendment  of  the  Constitution 
of  the  United  States.  Fifteenth.  Of  all  suits  to  recover  pecuniary 
forfeitures  under  any  act  to  enforce  the  right  of  citizens  of  the 
United  States  to  vote  in  the  several  States.  Sixteenth.  Of  all  suits 
authorized  by  law  to  be  brought  by  any  person  to  redress  the 
deprivation,  under  color  of  any  law,  statute,  ordinance,  regulation, 
custom,  or  usage  of  any  State,  of  any  right,  privilege,  or  immunity, 
secured  by  the  Constitution  of  the  United  States,  or  of  any  right 
secured  by  any  law  providing  for  equal  rights  of  citizens  of  the 
United  States,  or  of  all  persons  within  the  jurisdiction  of  the 
United  States.  Seventeenth.  Of  all  suits  authorized  by  law  to 
be  brought  by  any  person  on  account  of  any  injury  to  his  person 
or  property,  or  of  the  deprivation  of  any  right  or  privilege  of  a 
citizen  of  the  United  States,  by  any  act  done  in  furtlieranco  of 
any  conspiracy  mentioned  in  section  nineteen  hundred  and  eighty, 
Title  "Civil  Eights."  Eighteenth.  Of  all  suits  authorized  by  law 
to  be  brought  against  any  person  who,  having  knowledge  that  any 
of  the  wrongs  mentioned  in  section  nineteen  hundred  and  eighty, 
are  about  to  be  done,  and,  having  power  to  prevent  or  aid  in  pre- 
venting the  same,  neglects  or  refuses  so  to  do,  to  recover  damages 
for  any  such  wrongful  act. 

Pars.  13,  14,  15,  16,  17  and  18  of  R.  S.  §  629,  as  amended  Feb.  22,  1875, 
c.  95,  §  4,  18  Stat.  333,  U.  S.  Comp.  Stat.  1901,  pp.  506,  507. 

The  thirteenth  paragraph  above  set  forth  was  carried  into  the  Revised 
Statutes  from  an  act  of  1870.1*  The  jurisdiction  conferred  by  it  is  limited 
to  those  cases  where  the  sole  question  touching  the  right  to  the  office  arises 

i4Act    Mav,    31,    1870,    c.    114,    16 
Stat.    146. 

316 


Procedurej  CASES  UNDER  FEDERAL  LAWS."  S  129 

out  of  the  denial  of  the  right  to  vote  on  account  of  race  color  or  previous 
condition  of  servitude. is  Hence  it  does  not  include  a  case  in  which  the 
plaintiff  has  been  ejected  from  an  office  to  which  he  has  been  legally 
elected.  16  Jurisdiction  over  quo  warranto  suits  against  office  holders  con- 
trary to  the  Fourteenth  Amendment  given  to  the  circuit  court  by  paragraph 
fourteen,  above  is  given  also  to  the  district  courts. 1 7  District  courts  have 
jurisdiction  similar  to  that  conferred  by  the  sixteenth  paragraph  set  forth 
above.i9  That  paragraph  was  not  expressly  re-enacted  by  the  act  of  1875 
as  amended,  but  cases  hereunder  are  evidently  suits  of  a  civil  nature 
arising  under  the  Constitution  and  laws  of  the  United  States,  within  the 
meaning  of  the  first  section  of  that  act.  20  The  paragraph  refers  to  civil 
rights  only.i  It  does  not  apply  to  a  case  where  a  common  carrier  refuses  to 
transport  goods,  although  the  defense  is  that  a  State  statute  makes  the 
transportation  of  such  goods  a  penal  offense. 2  But  where  under  a  State 
law  a  corporation  of  another  S-tate  is  not  allowed  to  plead  a  judgment  as 
a  8«t  off  in  a  suit  brought  against  it,  such  corporation  is  derived  of  a 
constitutional  right  and  the  circuit  court  under  this  paragraph  may  afford 
it  appropriate  relief.  3 

§  128.  — suits  for  punishing  vessel  owners  and  officers  causing 
death. 

The  circuit  courts  shall  have  original  jurisdiction:  .  .  . 
Nineteenth.  Of  all  suits  and  proceedings  arising  under  section 
fifty-three  hundred  and  fourty-four,  Title  "Crimes,"  for  the  pun- 
ishment of  officers  and  owners  of  vessels,  through  whose  negligence 
or  misconduct  the  life  of  any  person  is  destroyed. 
Par.  19  of  R.  S.  §  629,  U.  S.  Comp.  Stat.  1901,  p.  507. 

R.  S.  §  5344,4  specifies  the  circuit  court  as  the  tribunal  having  jurisdic- 
tion to  enforce  its  provisions.  The  twentieth  as  well  as  the  first  paragraph 
of  R.  S.  §  629,  was  expressly  superseded  by  the  act  of  1875.5 

§  129.    Jurisdiction  over  cases  arising  under  Federal  Constitu- 
tion, treaties,  or  laws. 
The  circuit  courts  of  the  United  States  shall  have  original  cog- 
nizance, concurrent  with  the  courts  of  the  several  States,  of  all 
suits  of  a  civil  nature, ^'^^''^''^  at  common  law  or  in  equity, f°^  where 

IB  Johnson  v.  Jumel,  3  Woods,  69,  2  Bowman   v.    Chicago,   etc.   R.   Co. 

Fed.  Cas.  No.  7,392.  115  U.  S.  611,  29  L.  ed.  502,  6  Sup. 

"Idem.  Ct.  Rep.  192. 

i7Post,  §  206.  3Anglo-Ameriean.  etc.  Co.  v.  Davis, 

isPost,  §  204.  etc.  Co.  105  Fed.  537. 

soPost,   §    129;    California  Oil   Co.  4As  amended  1905,  see  U.  S.  Comp, 

v.  Miller.  96  Fed.  22.  Stat.   1905,  p.  721. 

iHolt  V.  Indiana  :Mfg.  Co.  176  U.  S.  sAct  Mar.  3,  1875,  c.  137,  §  10,  U. 

68,  44  L.  ea.  374,  20   Sup.   Ct.  Rep.  S.  Comp.  Stat.  1901,  p.  514. 
272. 

317 


{   129   [a]  CIRCUIT    COURT— JURISDICTION.  [Code  Fed. 

the  matter  in  dispute  exceeds,  e-\eliisive  of  interest  and  costs,  the 
Slim  or  value  of  two  thousand  donavs/'^^"^"^  and  arising  under  the- 
Constitution  or  hiws  of  the  United   States,  or  treaties  made,  oi- 
which  shall  be  made,  under  their  authority. "^^^"^"^ 
Part  of  §  1  act  Mar.  3,  1875,  c.  137,  18  Stat.  470,  as  amended  Mar.  3,  1887, 

and  corrected  Aug.   13,  1888,  c.   860,   25   Stat.   433,  U.  S.   Conip.   Stat. 

1901,  p.  508. 

[a]     Circuit  court  jurisdiction  in  general. 

The  amendment  of  1887,  1888,  so  far  as  affecting  the  foregoing  con- 
sisted in  substituting  "two  thousand  dollars"  for  "five  hundred  dollars," 
and  "interest  and  costs"  for  "costs."  As  has  been  frequently  declared  by 
the  S\ipreme  Court,  the  general  object  of  the  act  of  1875  as  amended 
and  corrected  was  to  contract  and  not  to  enlarge  the  jurisdiction  of 
the  circuit  courts. s  Its  purpose  was  to  define  the  jurisdiction  of  sucli 
courts  as  between  themselves  and  the  courts  of  the  States,  and  it  does 
not  repeal  the  special  provisions  of  former  laws  conferring  on  the  circuit 
or  district  courts  jurisdiction  in  special  cases.s  nor  was  it  intended  to 
divide  the  jurisdiction  which  prior  acts  vested  exclusively  in  the  district 
L'ourts.io  The  circuit  court  has  no  other  jurisdiction  than  that  conferred 
upon  it  by  the  Constitution  and  the  laws  of  the  United  States,  and  hence 
the  presumption  is  that  a  cause  is  without  its  jurisdiction  unless  the 
contrary  affirmatively  appears. n  So  where  the  jurisdiction  depends  on 
diverse  citizenship  and  the  record  does  not  show  a  case  within  the  juris- 
diction of  the  circuit  court,  the  Supreme  Court  will  take  notice  of  that 
fact  although  no  question  of  jurisdiction  has  been  raised  by  the  parties. i* 
Where,  however,  the  circuit  court  is  authorized  to  take  cognizance  of  a 
cause  it  is  not  deprived  of  jurisdiction  by  the  fact  that  the  plaintiff  has^ 
joined  other   actions   over   which  it  has  no  jurisdiction.! 3 

!* Mexican,  etc.  R.  Co.  v.  Davidson,  loUnited  Stages  v.  Mooney,  116  IL 
157  U.  S.  208,  39  L.  ed.  672,  15  Sup.  S.  108.  29  L.  ed.  583,  6  Sup.  Ct.  Ecp. 
Ct.  Rep.  568;  In  re  Pennsvlvania  Co.  304;  Price  v.  Abbott,  17  Fed.  506. 
137  U.  S.  454,  34  L.  ed.  739.  11  Sup.  nGrace  v.  American,  etc.  Ins.  Co. 
Ct.  Rep.  141;  Smitih  v.  Lvon.  133  Li.  109  U.  S.  283,  27  L.  ed.  935,  3  Sup. 
S.  320.  33  L.  ed.  637,  10  Sup.  Ct.  Ct.  Rep.  207:  Robertson  v.  Cease.  97 
Rep.  .303;  Fistk  v.  Henarie,  142  U.  U.  S.  646.  24  L.  ed.  1057;  Brown  v. 
S.  467,  35  L.  ed.  1082,  12  Sup.  Ct.  Keene,  8  Pet.  112,  8  L.  ed.  885;  Rail- 
Rep.  207 :  Tennessee  v.  Union,  etc.  wav  Co.  v.  Ramsey.  22  Wall.  322,  22 
Bank,  152  L.  S.  454,  38  L.  ed.  511,  L.  ed.  823;  Hanford  v.  Davies,  163  U. 
14  Sup.  Ct.  Rep.  654;  Otiappell  v.  S.  273.  41  L.  ed.  157.  16  Sup.  Ct.  Rep. 
Waterwortli,  155  U.  S.  102,  39  L.  ed.  1051 :  Kentucky  v.  Powers  201  U.  S. 
85.  15  Sup.  Ct.  Rep.  34;  St.  Louis.  1,  50  L.  ed.  633,  26  Sup.  Ct.  Rep. 
etc.  Ry.  Co.  v.  Davis.  132  Fed.  632,  387.  See  ante,  §  9. 
and  cases  cited.  i2Gra.ee  v.  American,  etc.  Ins.  Co. 

9In  re  Hohorst.  150  U.  S.  65^5.  109  U.  S.  285,  27  L.  ed.  935.  3  Sup. 
37  L.  ed.  1211.  14  Sup.  Ct.  Rep.  221;  Ct.  Rep.  207;  Kentuckv  v.  Powers, 
United  States  v.  Moonev.  116  U.  S.  201  U.  S.  1.  50  L.  ed.  633,  2(1 
107,  29  L.  ed.  552.  6  siip.  Ct.  Rep.  Sup.  Ct.  Rep.  387.  Ante,  §  9. 
304:  Price  v.  Aboott.  17  Fed.  508:  islndependent  School  Dist.  v.  Rew, 
United  States  v.  IMoonev,  11   Fed.  476. 

318 


Procedure!  CASES    UNDER    FEDERAL    LAWS.  S   129   [c} 

[bj     "Suit  of  a  civil  nature." 

The  term  "suit  of  a  civil  nature"  is  used  to  distinguish  from  admir- 
alty and  criminal  cases.  It  does  not  restrict  the  jurisdiction  to  old  and 
settled  forms  but  includes  all  suits  in  which  Icfral  rights  are  to  be  as- 
certained and  determined.  15  Whether  a  suit  is  of  a  civil  nature  is  determined 
not  by  the  form  but  by  the  nature  of  the  right  asserted  and  at  issue. is 
So  where  the  action  is  penal  in  its  natiu-e  the  fact  that  a  State  statute 
declares  it  to  be  a  civil  action  does  not  make  it  a  suit  of  a  civil  nature.iT 
A  libel  in  personam  in  admiralty  is  not  a  civil  suit  within  the  mean- 
ing of  the  term. 18  Xor  is  a  proceeding  for  a  purely  criminal  con- 
tempt of  courtis  nor  is  a  suit  to  recover  a  penalty  for  the  importation  of 
foreign  laborers. 20  But  a  claim  for  future  alimony  under  State  judgment 
is  a  suit  of  a  civil  nature  of  which  the  Federal  court  may  have  jurisdiction.  1 
The  genera)  question  as  to  what  is  a  suit  or  controversy  within  the  con- 
stitutional grant  of  Federal  judicial  power  has  already  been  considered. 2 
Federal  courts  have  frequently  declared  that  where  State  courts  have  jur- 
isdiction over  conti'oversies  between  domestic  citizens,  the  Federal  courts 
have  a  similar  jurisdiction  if  one  of  the  parties  is  a  citizen  of  any  other 
State.3 

[cj     "At  common  law  or  in  equity." 

The  common  law  suits  referred  to  by  the  section  include  not  only  those 
suits  which  the  old  common  law  recognized  but  all  r-uits  in  which  legal 
rights  are  to  be  ascertained  and  determined,  in  distinction  to  those  where 
equitable  rights  alone  are  recognized,  and  to  admiralty  proceedings. 5  Hence 
a  suit  arising  wholly  under  a  state  statute  may  be  a  suit  at  common  law.  6 
Hence  the  state  legislature  cannot,  by  making  special  provisions  for  the 
trial  of  different  controversies  nor  by  declaring  such  controversies  special 
proceedings  and  not  civil  suits  in  law  or  equity,  deprive  the  Federal  courts 
of  jurisdictioi'i."  Federal  courts  look  to  the  substance  and  determine 
whether  in   its   essential   nature  the   controversy   is   a  suit   in   law   or   in 

111  Fed.  5.  ^9  C.  C.  A.  198.  .5.5  L.K.A.        1  Israel  v.  Israel,  130  Fed.  240. 
364.  2Ante,  §  2.   [d] 

i^'United   States  v.   Block,   .3  Biss.        sSee  ante,   §§  2,   [s] ;    5. 
208.  Fe J.  Cas.  No.  14,610.  sBrisenden  v.  Chaml>e'rlain,  .53  Fed. 

isAmes  V.    Kansas,  111    U.  S.  449,  309.    Keith    v.   Rockingham.    2    Fe'.. 

28  L.  ed.  48,,  4  Sup.   Ct.  Rep.  43,  :  3.34.  18  Blatchf.  246:    Kohl  v.  United 

Texas  v.  Day,  etc.  Co.  41   Fed.  2.30 :  states.  91  U.  S.  367,  23  L.  ed.  449. 
Iowa    v.    Chicago.    37    Fed.    497.    3 


EBrisden    v.    Chamberlain.   53    Fed. 

1-T   J-  /-wM  r.      or  T-   1    o-n         300:   Denuick  v.  Railroad  Co.  103  l. 

1. Indiana  v.^Oil  Co.  85Jed.  S/0.^^     ^    „    .,g  ^     ^^,    ^^^.   ^^j^^  ^.    p^^^.. 

ingham.  2  Fed.  834,  18  Blatchf.  246. 
In  re  Jamecke  Ditcli,  69  Fed.  163. 


L.R.A.  .5.54. 


IS  Atkins  V.  Fibre,  etc.  Co.  18  Wall 
272.   21    L.  ed.  841 


inVilliams  :\lower.  etc.  Co.  v.  Ray-  ^  ^  ^'— •-'.-—  ■■•"•'  ^-"-  •"-■ 

or,  7  Biss.  245.  Fed.  Cas.  No.  17.748;  ^o\"'f "   '*'■  J^'  ''"v  "'u^ITV 

,^1-  .     AT-i         I  *      r>       )!•  TP   1  -^  \'ed.  193:   \\  aid  v.  lianz.  100  Fed. 

^._rk  V.  Milwaukee,  etc.  Co.  2(,  Fed.  ,.^.^    ^^  ^    ^^    ^    g3g    ^^  ^ ^^^    g.,. 


Kills  V.  Davis.   109  U.  S.  498.  27  L. 


nor, 

Ki 

507 

20United  Ntates  v.  Whitcomb.  etc.    „,     i^nc    o   c,,^    nt-    t> oo? 

Co.45Fed.  89:  United  States  v.Mex-    '^^-    ^^^^'   ^    ^"P"   ^'*-    ^^^P"   ^^^• 
ican,  etc.  Co.  40   Fed.   769. 

319 


§  129  [cc]  CIRCUIT    COURT— JURISDICTION.  [Code  Fed. 

equity. 8  So  where  the  controversy  is  within  the  jurisdiction  of  the  cir- 
cuit court,  such  jurisdiction  cannot  be  defeated  on  the  ground  that  the 
State  statute  gives  a  remedy  in  a  form  not  available  in  the  circuit  court.s 
Equity  suits  are  to  be  understood  as  those  suits  in  which  relief  is  sought 
according  to  the  principles  and  practice  of  English  equity  jurisprudenceio 
and  equity  jurisdiction,  when  conferred,  is  uniform  throughout  the  Federal 
courts  and  cannot  be  limited  or  extended  by  State  legislation.!  i  Con- 
demnation proceedings  by  the  United  States  are  suits  at  law  within  the 
meaning  of  the  section,i2  as  are  also  similar  proceedings  under  a  State 
law.  13 

[cc]  —  probate  proceedings. 

A  proceeding  to  probate  a  will  is  not  a  suit  at  common  law  or  in 
equity,  within  the  meaning  of  the  above  rule,  such  a  proceeding  being  in 
rem  and  not  necessarily  involving  any  dispute  between  the  parties. 1 4 
Nor,  independently  of  statute,  has  a  court  of  equity  general  jurisdiction 
to  set  aside  a  will  or  its  probate. is  By  State  statute,  however,  jurisdiction 
may  be  vested  in  the  State  courts  of  equity  to  set  a  will  or  its  probate 
for  fraud  or  other  reasons,  and  when  so  vested  there  seems  no  reason  why 
the  Federal  courts  setting  in  those  States  have  not  concurrent  jurisdiction  in 
a  proper  case.is  As  has  been  seen, 1 7  the  Federal  courts  also  have  juris- 
diction to  adjudicate  claims  against  an  estate  and  the  rights  of  a  legatee 
or  claimant  under  a  will,  although  no  power  to  take  the  property  of  a 
decedent  out  of  the  custody  of  the  State  court  of  probate. 

[d]     Amount  in  dispute  to  exceed  two  thousand  dollars. 
In  a  suit  arising  under  the  Constitution  or  laws  of  the  United  States 

8ln  re  Jarnecke  Ditch.  69  Fed.  163.  i^Gaines  v.  Fuentes,  92  U.  S.  10, 

9 Wilson  V.  Smith,  66  Fed.  81.  2.3  L.  ed.  524;  Kirby  v.  Railroad  Co. 

lolrvine  v.  Marshall,  20  How.  565,  106  Fed.  551.     See  Copeland  v.  Bru- 

15  L.  ed.  998 ;  Robinson  v.  Campbell,  niiig,  72  Fed.  6. 

3  Wheat.  212,  4  L.  ed.  373.  isCase  of  Broderick's  Will,  21  Wall. 

iiMcConihay    v.    Wright,    121    U.  509,    22    L.    ed.    509;    see    Gaines    v. 

S.  201,  30  L.  ed.  932,  7  Sup.  Ct.  Rep.  Fuentes,  92  U.  S.  10,  23  L.  ed.  524. 

940;   Scott  V.  Neelv,   140  U.   S.   106,  leWilliams  v.  Crabbe,  117  Fed.  193, 

35  L.  ed.  358,  11   Sup.  Ct.  Rep.  712;  54  C.  C.  A.  213,  59  L.R.A.  425;  Gaines 

Gates  V.  Allen,  149  U.  S.  451,  37  L.  v.    Fuentes,   92   U.    S.   20,   23   L.   ed. 

ed.  804,   13   Sup.   Ct.  Rep.   883,  977;  524;    Ellis   v.   Davis.   109   U.   S.  496, 

Mississippi  Mills  v.  Cohn,  150  L.  S.  27  L.  ed.  1006,  3  Sup.  Ct.  Rep.  329; 

205,  37  L.  ed.  1054,  14  Sup.  Ct.  Rep.  Byers  v.  McAuley.  149  U.  S.  610,  37 

76;    Thomas   v.   Marble,   etc.    Co.    58  L.    ed.    867,    13    Sup.    Ct.    Rep.    906; 

Fed.  489,  7  C.  C.  A.  330.     See  ante,  Richardson   v.    Green,    61    Fed.    429, 

§   5,  post,   §  935.  435,  9  C.  C.  A.  565;  dissenting  opin- 

i2Kohl  V.  United  States,  91  U.  S.  ion  Wahl  v.  Franz,  100  Fed.  705,  40 

376,  23  L.  ed.  449 ;   United  States  v.  C.  C.  A.  638 ;  Brodhead  v.  Shoemaker, 

Oregon,  etc.  Co.  16  Fed.  524,  9  Sawy.  44  Fed.  518,  11  L.R.A.  567.     See  con- 

61.  tra,  In  re  Cilley,  58  Fed.  977;   Reed 

isKirby  v.  Chicago,  etc.  R.  Co.  106  v.  Reed,  31   Fed.  49.     See  also  ante, 

Fed.  551 ;  Terre  Haute  v.  Evansville,  §  2.[s] 

etc.  R.  Co.  106  Fed.  545;  Union  Ter-  i^Ante,  §  17. 
minal  R.  Co.  v.  Chicago,  etc.  R.   Co. 
119  Fed.  209. 

320 


Procedure]  CASES  UNDER   FEDERAL  LAWS.  §   129   [e] 

or  under  treaties  made  or  which  shall  be  made,  the  circuit  court  has  no 
jurisdiction  unless  the  amount  in  controversy,  exclusive  of  interest  and 
costs  amounts  to  two  thousand  dollars. i  This  rule  is  not  affected  by  the 
fact  that  the  operation  of  the  act  of  Mar.  3,  1891  was  to  do  away  with  any 
pecuniary  limitations  on  appeals  directly  from  the  circuit  court  to  the 
Supreme  Ck)urt.2  The  value  of  matter  in  dispute  which  conditions  the 
jurisdiction  of  the  Federal  Court  is  the  amount  or  value  of  that  which 
the  complainant  claims  to  recover  or  that  which  the  defendant  will  lose 
if  the  complainant  obtains  recovery.^  In  ascertaining  this  amount  the 
inquiry  must  be  limited  to  the  particular  action,  and  hence  any  estimate 
in  money  by  reason  of  the  probative  force  of  the  judgment  itself,  in  some 
subsequent  proceeding  cannot  be  considered.*  The  court  will  look  to  the 
whole  record. 5  If  it  appears  from  the  showing  of  the  parties  that  the 
amount  in  dispute  is  less  than  two  thousand  dollars,  jurisdiction  cannot  be 
given  by  allegations  in  the  pleadings  that  the  amount  is  sufficient. 6  The 
sum  demanded  is,  however,  presumed  to  be  the  matter  in  dispute  until 
the  contrary  is  shown.7  In  a  stockholders'  suit  on  behalf  of  the  corpora- 
tion the  value  in  dispute  is  not  measured  by  the  value  of  complainants 
stock  interest. 8 

[e]  —  ascertainment  of  amount  in  suits  ex  contractu  and  otherwise. 

In  suits  ex  contractu  the  amount  claimed  will  not  establish  the  juris- 
diction, when  the  application  of  settled  rules  of  relief  and  measure  of 
damages  to  the  particular  allegations  of  the  complaint  show  that  the 
recovery  must  be  less.8%  In  suits  not  ex  contractu  the  plaintiff's  demand 
is  the  amoimt  in  controversy  unless  such  demand  is  colorable.  9  Hence  in 
a  suit  for  an  account  and  to  set  aside  a  settlement,!  o  or  for  an  amount 

lUnited  States  v.  Sayward.  IGO  U.  ^Edwards  v.   Bates,   55   Fed.   439; 

S.  493.  40  L.  ed.  508,  16'Sup.  Ct.  Rep.  and   see   Shippirio   v.   Goldberg.    192 

371;  Fishback  v.  Western  Union  Tel.  U.  S.  240,  48  L.  ed.  424,  24  Sup.  Ct. 

Co.  161  U.  S.  100,  40  L.  ed.  632,  16  Eep.  259;  see  also  Vance  v.  Vander- 

Sup.  Ct.  Rep.  508 ;  Shewalter  v.  Lex-  cock    Co.    170   U.    S.   468,    42    L.   ed. 

ington,  143  Fed.  161.  1111,  18  Sup.  Ct.  Rep.  645. 

2The   Paquete   Habana,    175   U.   S.  eCabot  v.  McMaster,  6i   Fed.   130. 

677,  44  L.  ed.  320,  20  Sup.  Ct.  Rep.  See  \Yay  v.  Clay.  140  Fed.  352,  where 

290;    Holt  V.  Indiana,  etc.   Co.   170  land    in    ejectment    suit    not    worth 

U.  S.  68,  44  L.  ed.  374,  20  Sup.  Ct.  $2000  and   no   special  damages  were 

Rep.  272.     Ante,  §  42.  alleged. 

sCowell  V.  Citv,  etc.   Co.   121  Fed.  ^Hilton    v.    Dickinson,    108    U.    S. 

53,  57  C.  C.  A.  393.  166,  27   L.  ed.  688,  2  Sup.   Ct.   Rep. 

^Washington,  etc.  R.  R.  v.  District  424.     See  also  Edwards  v.  Bates  Co. 

of  Columbia,  146  U.  S.  231.  36  L.  eu  55   Ftnl.   439. 

951,    13    Sup.    Ct.    Rep.    64;    United  s Hill  v.  Glasgow,  etc.  R.  R.  41  Fed. 

States    v.    Wanamakor,     147     U.    S.  614. 

150,  37  L.  ed.  118.   13  Sup.  Ct.  Rep.  sRarrv  v.  Edmunds.  116  U.  S.  561, 

281;    Hollander    v.    Fechheimor.    162  29  L.  ed.  729,  6  Sup.  Ct.  Rep.  501; 

U.  S.  328,  40  L.  ed.  986,  16  Sup.  Ct.  Peeler  v.  Lathrop,  48  Fed.  780,  1  C. 

Rep.    796;    Hartfor<l    Fire    Ins.    Co.  C.  A.  93. 

v.  Bonner,  etc.  Co.  56  Fed.  378.  5  C.  loPeeler  v.  Lathrop,  48  Fed.  780,  1 

C.  A.  524;    Mayer,  e^^-   v.  Postal,  etc.  C.  C.  A.  93. 
Co.  62  Fed.  502. 

Fed.  Proc— 21.  321 


§   129    [ee]  CIRf'UIT     COrUT    -.TrRlSDICTION.  [Code   Fed. 

claimed  on  c-oiKlfiiiDatioii  iJidcccilini,'-^-' '  or  tor  the  aiiiount  (Iciiuuided  in  a 
iiuisance  casc.i-  tlio  amount  itself  if  claimed  in  good  faith  fixes  the  juris- 
diction. "Where  there  is  no  cause  to  suspect  the  actioji  is  colorable  and  the 
amount  claimed  is  within  tlic  jurisdiction,  the  case  should  not  be  dis- 
missed unless  from  the  nature  of  the  action  it  appears  that  the  plaintifif 
cannot  recover  an  ainoimt  within  the  jurisdiction. 1 3  'Phe  fact  that  there 
is  a  defense  apparent  on  the  face  of  the  petition  does  not  diminish  the 
amount  nor  determine  the  amount  actually  in  dispute.! ■»  In  a  .suit  con- 
cerning the  loss  of  an  office  the  amount  of  the  salary  is  considered  as  de- 
termining the  jurisdictional  amount. 15  In  a  suit  to  quiet  title. 1 6  or  to  set 
aside  a  fraudulent  conveyance,!"  the  test  of  jurisdiction  is  the  value  of 
the  property  aflectcd.  Where  a  will  is  contested  the  matter  in  dispute  is 
the  value  of  the  property  passed  by  the  will  and  not  the  separate  inter- 
ests  of   the   parties.18 

[ee]  —  where  mattter  in  dispute  not  susceptible  of  pecuniary  estimate. 

In  some  cases,  however,  the  matter  in  dispute  is  not  appraisable  for 
jurisdictional  purposes.  Thus  it  has  been  held  that  the  circuit  court  has 
no  jurisdiction  over  a  habeas  corpus  proceeding  by  a  father  to  obtain  pos- 
session of  his  infant  child  since  the  matter  in  dispute  could  not  be  esti- 
mated in  money.i  So  also  in  a  suit  for  divorce  the  matter  in  dispute 
does  not  exceed  two  thousand  dollars  even  where  the  income  of  the  hus- 
band exceeded  ten  thousand  dollars  and  alimony  was  asked,  since  it  is 
discretionary  with  the  court  whether  or  not  alimony  shall  be  granted  at 
all. 2  Where  the  suit  is  against  election  officers  for  their  rejection  of 
plaintiff's  vote  the  matter  in  dispute  while  capable  of  being  estimated, s  is  a 
matter  peculiarly  appropriate  for  the  determination  of  a  jury.*  Tiie  ef- 
fect of  requiring  a  vahie  in  dispute  on  appeal  has  alreadj'  been  considered. 5 

[f ]  —  aggregating  claims  to  secure  jurisdictional  amount. 

It  is  settled  that  where  two  or  more  plaintiffs  having  single  interests 
unite  for  the  convenience  of  litigation  in  a  single  suit,  it  can  only  be  sus- 
tained as  to  those  whose  claims  exceed  the  jurisdictional  amount. 7  So 
also  where  two  or  more  defendants  are  sued  by  the  same  plaintiff  in  one 

n Postal,  etc.  Co.  v.  Southern  Ry.  isQverbv  v.  Gordon.  177  l^.  S.  214. 

SS  Fed.  806.  44  L.  ed.  741,  20  Sup.  Ct.  Rep.  603. 

i2Herbert  v.  Rainey,  54  Fed.  251.  lEx  part«  Everts,  1  Bond,  197.  Fed. 

isLevinski  v.  Banking  Co.  92  Fed.  Cas.  No.  4.581;   Clifford  v.  Williams, 

461,  34  C.  C.  A.  452.  131    Fed.  100. 

uSehunk  v.  Moline,  etc.  Co.  147  U.  2Bo\nnan  v.  Bowman,  30  Fed.  850. 

S.  505,  37  L.  ed.  258,  13  Sup.  Ct.  Rep.  sWilev  v.  Sinkler,  179  U.  S.  58.  45 

417.     See   also    Turner   v.    Southern,  L.  ed.  84.  21  Sup.  Ct.  Rep.  17;  Gile^ 

etc.    Ass'n.    101    Fed.    315.    41    C.    C.  v.   Harris,   189   U.   S.  485,    47  L.  ed. 

A.    379.                                   '  911,  23  Sup.  Ct.  Rep.  639. 

isSmith  V.  Whitney.  116  U.  S.  172.  ^wilev   v.   Sinkler.    179   U.   S.   65, 

29  L.   ed.   601,  6   Sup.   Ct.  Rep.   570.  45   L.   ed.   84,   21    Sup.    Ct.   Rep.   17, 

ifiWoodside  v.  Cicernni,  93  Fed.  4,  sSee  for  instance,  ante,  §  45.  [c] 

35  C.  C.  A.  177:  Greenfield  v.  United  "Walter  v.  Northeastern  R.  R.  147 

States  Mortgage  Co.  133  Fed.  784.  U.  S.  373.  37  L.  ed.  208,  13  Sup.  Ct. 

IV Simon  v.  House,  46  Fed.  318.  Rep.  350;  Seaver  v.  Bigelows,  5  Wall. 

322 


Procedure]  CASES    UNDER    FEDERAL    LAWS.  §   129    [g] 

suit  the  test  of  jurisdiction  is  the  joint  or  several  character  of  the  liability 
to  the  plaintiff.s  Thus,  the  circuit  court  cannot  enjoin  taxes  in  different 
counties  no  one  of  which  amounts  to  two  thousand  dollars.9  Nor  can 
such  court  enjoin  the  collection  of  taxes  against  stockholders  of  a  bank,io 
or  against  property  owners  of  a  city  whose  property  is  abutting  on  the 
same  street,ii  where  no  single  tax  assessment  exceeds  two  thousand  dol- 
lars. Where,  however,  an  injunction  is  sought  to  restrain  a  State  auditor 
from  completing  an  appraisement  and  levy  of  taxes  the  Federal  courts  have 
jurisdiction  if  the  total  amount  of  the  taxes  exceeds  two  thousand  dollars. 12 
In  a  suit  to  have  a  receiver  appointed  for  an  insolvent  corporation  the 
claims  of  the  creditors  joining  in  the  suit  need  not  separatelj'  equal  the 
jurisdictional  amount.is  it  is  also  held  that  where  a  suit  is  brought  by 
creditors  of  such  corporation  on  behalf  of  themselves  and  all  others  simi- 
larly situated  to  recover  property  fraudulently  acquired  the  circuit  court 
has  jurisdiction,  although  the  claims  of  each  do  not  exceed  two  thousand 
dollars. 1*  So  also  the  value  of  the  matter  in  dispute  in  a  suit  to  set  aside 
the  judgment  of  a  probate  court,  establishing  claims  against  an  estate,  be- 
cause fraudulently  procured  is  the  aggregate  of  the  claims  thus  procured.is 
The  provision  of  the  judiciary  act  of  187516  that  an  assignee  of  a  chose  in 
action  cannot  sue  in  a  Federal  court  unless  his  assignor  could  have  main- 
tained the  action,  has  no  reference  to  the  jurisdictional  amount.  Hence 
an  assignee  of  choses  in  action  aggregating  two  thousand  dollars  may  main- 
tain a  suit,  so  far  as  the  jurisdictional  amount  is  concerned,  although  his 
assignors  could  have  sued  because  none  of  their  claims  were  sufficient  in 
nmount.iT 

[g]  —  amount  in  controversy  in  injunction  suits. 

Tn  a  suit  for  an  injunction  the  matter  in  dispute  is  not  determined  by  the 
amount  which  the  complainant  might  recover  at  law  for  the  acts  com- 
|i!aincd  of,  but  by  the  value  of  the  right  to  be  protected  or  the  extent  of 
the  injury   to  be  prevente<l  by   the  injunction. 21      So   on   a  suit   to  enjoin 

208,  18  L.  ed.  30.5.     Rut  often  claim-  12 Western  Union,  etc.  Co.  v.  Nor- 

ants  below  the  jurisdictional  amount  man.  77  Fed.  20. 

:^n  come  in  by  ancillain'  application.  1^ Jones  v.  Mutual,  etc.  Co.  123  Fed. 

See  ante.  §  3.                  '  507. 

sCitizens  Bank  v.  Cannon.  164  U.  i^Stanwood    v.   Wishard,   134   Fed. 

S.   322.   41    L.    ed.    453.     17    Sup.    Ct.  059. 

Rep.  80;    Walter  v.  Northeastern  R.  1 5McDaniel   v.   Traylor,    196   U.    S. 

R.  147  U.  S.  373.  37  L.  ed.  208.  13  Sup.  416,  49  L.  ed.  533.  2.5  Sup.  Ct.  Rep. 

Ct.  Rep.   3.50;   Northern  Pac.   Rv.  v.  360. 

Walker,  J 48  U.  S.  .391.  37  L.  ed.  404,  leAnte.  §  23. 

13   Slip.   Ct.   Rep.   6.50.  1  "Bowden  v.  Burnham,  59  Fed.  755. 

"Walter  v.  Northeastern  R.  R.  147  8   C.   C.   A.   248;     Davis  v.  Mills,   99 

U.  S.  .373,  37  L.  ed.  20)>.  13  Sup.  Ct.  Fed.    30. 

Rep.  348;  Fishback  v.  Western  Union,  2iNashville.  etc.  Railwav  Co.  v.  Mc- 

etc.  Co.  161  U.  S.  100.  40  L.  ed.  6,31,  Connell,  82  Fed.  65:    Humes  v.  Fort 

10  Sup.  Ct.  Rep.  508.  Smith,  93  Fed.  857;   see  also  Arkan- 

'OSioux  Falls  Bank  v.  S^vansen.  48  sas   v.  Kansas,  etc.  Coal  Co.  96  Fed. 

Fed.  625.  353 ;    Board  of  Trade  v.  Cella  Comm. 

iiWheless  V.  St.  louis,  96  Fed.  860.    Co.   145   Fed.   28,  — (C.  C.   A.)   , 

323 


§   129   [gg]  CIRCUIT  COURT— JURISDICTION.  [Code  Fed. 

a  license  tax  on  business  the  amount  in  controversy  is  the  value  of  the 
business  since  it  will  be  destroyed  unless  the  injunction  is  granted.i 
\'niere  the  object  of  the  injunction  is  to  restrain  the  use  of  property  by  a 
party  other  than  the  owner,  the  right  to  use  the  property  is  the  matter 
in  dispute,  and  the  jurisdiction  depends  on  the  value  of  that  right.2 
Where  in  a  suit  to  restrain  the  enforcement  of  a  law,  complainant  shows 
penalties  already  incurred  for  its  violation  in  excess  of  $2,000,  jurisdiction 
exists. 3  So  also  where  the  injunction  is  to  restrain  the  maintenance  of  an 
awning  over  part  of  a  street,  the  amount  in  dispute  is  the  value  of  the 
right  to  use  the  awning  and  not  the  amount  of  damage  done  by  it  to  the 
plaintiff. 4  On  the  same  principle  where  the  suit  is  brought  by  stockholder 
on  behalf  of  other  stockholders  to  enjoin  a  misapplication  of  the  corporate 
funds,  the  amount  in  dispute  is  not  the  interest  of  the  particular  stock- 
liolder,  but  the  value  of  the  funds  misapplied. 5 

[gg]  —  proof  necessary  where  allegation  controverted. 

If  the  allegation  in  a  bill  that  the  value  in  dispute  exceeds  two  thousand 
■dollars,  is  put  in  issue,  there  must  be  proof  offered  to  sustain  it.e 

[h]  Suits  arising  under  Con.stitution,  laws  or  treaties  of  United  States, 
— in  general. 

The  provision  conferring  jurisdiction  of  suits  of  a  civil  nature  at  com- 
inon  law  or  in  equity  arising  under  the  Federal  Constitution,  laws  or 
treaties  was  absent  from  the  judiciary  act  of  1789,  and  appeared  first  in 
the  act  of  1875.7  The  general  rule  is  that  if  it  appears  from  the  bill  or 
statement  of  the  plaintiff  that  in  any  aspect  which  the  case  may  assume, 
the  right  to  obtain  relief  may  depend  upon  the  construction  of  a  provision 
of  the  Constitution  or  laws  of  the  United  States,  and  that  the  Federal 
claim  is  not  merely  colorable  but  rests  on  a  reasonable  foundation,  the  cir- 
cuit court  has  jurisdiction.s  It  is  established  also  that  the  dispute  between 
the  parties  must  be  a  real  and  substantial  one.9  Where  it  does  not  appear 
from  any  of  the  facts  stated  that  there  is  a  disputed  construction  of  a  Fed- 
See  Louisville,  etc.  R.  R.  v.  Bitter-  Bank,  152  U.  S.  459,  38  L.  ed.  513, 
man,  144  Fed.  34,  — (C.  C.  A.)   .    14  Sup.  Ct.  R«p.  &54. 

iHumes  v.  Little  ivock,  138  Fed.  ^St.  Louis,  etc.  Ry.  v.  Davis,  132 
933  Fed.  632;   Illinois,  etc.  R.  R.  v.  Chi- 

2bleson  V.  Northern,  etc.  R.  Co.  ^^go^  ^'l,^''^^"  ^£;  **  ^-  ^-  ^^-' 
^^  -p^    J  20  Sup.  Ct.  Rep.  509. 

«TkT  -vV  ■n^  o     iu  T>     r>     one        sNashvillc,   ctc.   Rv.   V.  Tavlor,   86 

ttT^^S'.  .r7V  .  ifl?  S-\  r.  Fed.  178;  Southern  Pac.  R.  R.  y.  Cal- 
U.  S.  543,  50  L.  ed.  1142,  2Q  Sup.  Ct.    .^^^,^.^^  '^^g  ^    g    j^,,^  3^^  ^    ^^    ^03^ 

Rep.  722.  „,,,,„„-,,  J    o,  6    Sup.    Ct.   Rep.   993;    Newburyport 

4 Whitman  v.  Hubbell,  30  Fed.  81.  ^-y^^^^.  ^^   ^,    Xe^vburyport,  193  U.  S. 

sHill    V.    Glasgow,   etc.   R.    Co.    41  ^q^    43  l.  ed.  795,  24  Sup.  a.  Rep. 

Fed.  614.  553;  Penn.  etc.  Insurance  Co.  v.  Aus- 

eOregon  R.  &  N.  Co.  v.  Shell,  143  tin,  168  U.  S.  695,  42  L.  ed.  630.  18 

Fed.  1008;  Klenk  v.  Byrne,  143  Fed.  Sup.   Ct.   Rep.    227;    Western   Union 

1008.  Tel.  Co.  V.  Ann  Arbor,  etc.  Ry.  178 

TNashville,  etc.  R.  Co.  v.  Taylor,  86  U.  S.  239,  44  L.  ed.  1052,  20  Sup.  Ct. 

Fed.    174;    Tennessee   v.    Union,    etc.  Rep.    867;    McCain    v.    Des    Moines. 

324 


Procedure]  CASES  UNDER    FEDERAL   LAWS.  §   120   [j] 

eral  law  under  which  the  parties  claim,  and  the  contest  is  about  the  facts 
only,  a  Federal  question  is  not  presented. lo  Removal  suits  involving  Fed- 
eral questions  are  considered  in  a  following  section.^ 

[ij    Federal  questions  in  particular  cases. 

A  Federal  court  has  jurisdiction  over  a  suit  by  a  telegraph  company  to 
enjoin  threatened  removal  of  line  built  and  accepted  pursuant  to  R.  S. 
§  5263;  13  it  has  jurisdiction  also  over  a  suit  to  restrain  construction  of 
municipal  water  works  on  account  of  alleged  violation  of  contract  with 
the  plaintifl'  and  the  water  eompany,i4  and  over  suits  to  enforce  the  lia- 
bility of  national  bank  stockholders.! 5  It  has  jurisdiction  also  of  a  suit 
to  enjoin  an  assessment  alleged  to  violate  an  exemption  from  assessability 
of  United  States  bonds.  1 6  An  action  for  damages  for  denial  of  right  to 
vote  for  a  member  of  Congress  is  a  suit  under  the  Federal  laws. 1 7 

But  a  Federal  question  is  not  presented  in  an  action  for  damages  for  acts 
of  the  defendant  as  judge  of  a  State  court.is  Nor  is  such  question  pre- 
sented in  a  suit  against  a  circuit  court  clerk  for  damages  for  refusal  to 
file  papers  where  alleging  him  to  be  liable  under  R.  S.  §§  1979,  1980; !■> 
nor  in  a  suit  under  R.  S.  §  232G,  in  support  of  an  adverse  claim  in  mining 
ground.2  0  The  fact  that  a  suit  is  alleged  to  be  over  a  United  States 
patent  does  not  raise  a  Federal  question  where  the  averments  show  that 
the  question  really  at  issue  is  the  plaintiff's  right  to  land  formed  by 
accretion.  21 

Ljj    Suits  under  the  Constitution. 

The  mere  allegation  that  constitutional  questions  are  involved  is  not 
sufficient  to  give  the  circuit  court  jurisdiction  when  it  appears  that  such 
allegation  is  without  color  or  merit. i  Thus  a  claim  that  an  action  of  a 
State  is  in  violation  of  the  Fifth  Amendment  cannot  be  maintained  as  that 
Amendment  is  a  limitation  on  the  powers  of  Congress  only.2     Nor  has  the 

174  U.  S.  168,  43  L.  ed.  936,  19  Sup.  i4Knoxville   W.    Co.   v.   Knoxville, 

Ct.  Rep.  644;  Xew  Orleans  v.  Benja-  200  U.  S.  22,  50  L.  ed.  353,  26  Sup. 

min,  153  U.  S.  411,  38  L.  ed.  764,  14  Ct.  Rep.  224. 

Sup.    Ct.    Rep.    905;     Shroveport    v.  isWvman  v.  Wallace,  201  U.  S.  230, 

Cole.  129  U.   S.  .36.  32  L.  ed.  5S9,  9  50  L.  ed.  738.  26  Sup.  Ct.  Rep.  495. 

Sup.  Ct.  Rep.  210 ;  Carson  v.  Dunham,  See  post,  §  9G4. 

121  U.  S.  421.  30  L.  ed.  992.  7  Sup.  isPeoples    Sav.    Bank    v.   Lavman, 

Ct.  Rep.   1030:   Ames  v.  Kansas.  Ill  134  Fed.  635. 

U.  S.  449,  28  L.  ed.  482,  4  Sup.  Ct.  iTKnight  v.  Shelton,  134  Fed.  423. 

Rep.  4.35;  Jov  v.  St.  Louis.  122  Fed.  isKinnevv.  Mitchell.  1.38  Fed.  270. 

528;    Minnesota    v.    Duluth,  etc.  Rv.  isUnited  States  v.   Bell,   135   Fetl. 

87   Fed.  497:    Crvstal    Springs   Laiid  339. 

Co.  V.  Los  Angeles.  76  Fed.  151.  20Willitt   v.   Baker,    133   Fed.   937. 

lOAustin    V.    Gagan.    39    Fed.    626,  21  Jov  v.  St.   Louis,  201   U.  S.  332, 

5  L.R.A.  476;    Theurkauf  v.  Ireland,  50  L.  ed.  776,  26  Sup.  Ct.  Rep.  478. 

27  Fed.  769;  ISIurrav  v.  Bluebird  i\lin.  iNewburvport,  etc.  Co.  v.  Newburv- 

Oo.  45  Fed.  385;   Ca.lifornia  Oil,  etc.  port,    193   U.    S.    576.   48   L.   od.    795, 

Co.  V.  Miller,  90  Fed.  17.  24  Sup.  Ct.  Rep.  553. 

11  Post.   §   133.  2  St.   Louis,  etc.  Ry.  v.   Davis,   132 

i30hio,  etc.  Co.  V.  Board  of  Com'rs.  Fed.  632. 
137  Fed.  947. 

325 


§   129   [k]  CHtCUIT  COURT— JURISDU'TIOX.  [Code   Fed. 

court  jurisdiction  merely  because  in  tlie  process  of  litigation  it  may  bo- 
come  necessary  to  give  a  construction  to  the  Constitution.  The  suit  must, 
in  part  at  least  arise  out  of  a  controversy  between  the  parties  in  re- 
gard to  the  Constitution. 3  Whenever  in  any  suit  the  right  and  title  of 
either  party  to  property  is  founded  upon  State  legislation  which  under- 
takes to  transfer  to  one  person,  the  property  of  another  without  due 
process  of  law,  a  Federal  question  is  presented. ^  Where,  however,  the  dep- 
rivation of  property  without  due  process  of  law  is  without  legislative  au- 
thority, the  case  does  not  present  a  Federal  question. 5  The  circuit  court 
has  jurisdiction  of  a  bill  to  restrain  collection  of  taxes  alleged  to  be 
repugnant  to  the  Constitution,  being  a  deprivation  of  property  under  the 
1 4th  Amendment.6  A  Federal  question  is  not  presented  where  the  con- 
•^titutionality  of  a  State  law  is  admitted,  but  it  is  asserted  that  its  con- 
struction by  the  State  officers  is  such  as  to  render  the  act  unconstitutional.'^ 
It  is  unnecessary  .that  the  particular  provision  of  the  Constitution  relied 
upon  be  set  out  special!}'  so  long  as  the  case  made  out  necessarily  comes 
within  some  of  the  provisions  of  that  instrument. s 

fk]     Suits  by  and  against  States,  involving  Federal  questions. 

There  is  no  constitutional  provision  prohibiting  a  State  from  suing  in 
any  tribunal  which  can  entertain  its  case.io  Tlie  above  provision  gives 
the  circuit  court  jurisdiction  concurrent  with  the  State  courts,  over  all 
cases  involving  a  Federal  question,  hence  a  State  may  under  its  pro- 
visions sue  either  in  the  State  or  in  a  circuit  court  when  such  question  is 
involved  and  the  amount  is  sufficient  to  give  jurisdiction.! i  The  immunity 
of  a  State  from  suit  guaranteed  by  the  Constitution,! 2  is  a  personal 
privilege  which  the  State  may  waive.! 3  But  without  its  consent  a  State 
cannot  be  sued  in  the  Federal  circuit  court,  on  the  ground  that  a  case 
is  one  arising  under  the  Federal  Constitution  or  have  laws  either  by  a  citizen 
of  another  State  or  of  a  foreign  State,!*  or  by  one  of  its  own  citizens.! 5 

sGold  Washing  and  Water  Co.  v.  son.   170   U.   S.   511,   42   L.   ed.   1126, 

Keyes,  96  U.  S.  199,  24  L.  ed.  656.  18  Sup.  Ct.  Rep.  685;  Ames  v.  Kan- 

•iCrystal    Springs,    etc.   Co.   v.    Los  s-as.    Ill    U.    S.   449,    28   L.    ed.    482. 

Angeles  76  Fed.  148.  4  Sup.   Ct.   Rep.   437:    NeAV  Orleans. 

^Barney  v.    New   York.    193   U.    S.  etc.  R.   Co.  v.  Mississippi.   102  IT.  S. 

430,  48  L.  ed.  737,  24  Sup.  Ct.  Rep.  140.  20  L.  ed.  98.     See  also  Illinois  v. 

502:    Huntington  v.   New   York,    193  Illinois,  etc.  R.  Co.  16  Fed.  886. 

U.  S.  441,  48  L.  ed.  743,  24  Sup.  Ct.  isAnte.  §  7. 

Rep.  505.  i3Clark  v.  Bernard.  108  U.  S.  436. 

6Mic'higan    R.    R.    Tax    Cases,    138  27   L.   ed.   780.   2  Sup.   Ct.   Rep.  878. 

Fed.  223.  i-s Louisiana   v.    Jumel,    107   U.    S. 

TArbuckle  v.  Blackburn.  191  U.  S.  711,   27   L.   ed.   448.   2  Sup.   Ct.   Rep. 

413,  48  L.  ed.  242,  24  Sup,  Ct,  Rep.  128;    Hagood  v.  Southern,  117  U.  S. 

148.  52.   29    L.    ed.   805,   6   Sup.   Ct.   Rep. 

sBridge   Proprietors   v.   Land.   etc.  608:    In  re  Avers,   123  U,  S.  443,  31 

Co.   1   Wall.   116,   17  L.  ed.  571;   see  L.  ed.  216,  8  Sup.  Ct.  Rep.  164;  Cun- 

Crystal   Springs,  etc.  Co.  v.  Los  An-  nini;ham   v.    Macon,   etc.   R.   Co.    109 

geies,  76  Fed.  153.  U.  S.  446,  27   L.  ed.  91)2,  3  Sup.  Ct. 

!0P]aquinines.   etc.    Co.   v.  Hender-  Rep.    292,   609. 

son.   170  U.   S.   511.   42   L.   ed.   1126,  !5Hans   v.  Txjuisiana,  1.34  U.  S.  1, 

IS  Sup.  Ct.  Rep.  685.  33    L.    ed.    842,    10    Sup.    Ct.    Rep. 

iiPlaquemines,  etc.  Co.  v.  Hender-  504:    North   Girolina   v.  Temple.   134 

326 


i 


n 


Iiocedurej  CASP:S   UNDER   FEDERAL   LAWS'.  §    123   [n] 

The  scope  of  the  jurisdiction  in  suits  against  a  State  has  already  been  con- 
sidered.! 6 

[I]     Suits  under  Federal  land  grants. 

The  mere  fact  that  the  plaintiff  and  the  defendant  make  adverse 
claims  to  land  which  has  been  granted  under  a  Federal  law  does  not  pre- 
sent a  Federal  question, i  since  such  a  case  may  involve  merely  a  question 
of  fact.  2  A  Federal  question  is  raised,  however,  where  a  right  is  claimed 
under  a  particular  Federal  statute,  the  validity,  construction  or  applica- 
liility  of  which  is  made  the  subject  of  dispute.3  So  a  controversy  turning 
upon  the  validity  of  a  patent  from  the  United  States  under  which  the 
plaintiff  claims  title  and  which  is  denied  by  the  defendant  presents  a 
l''ederal  question,*  as  does  also  a  suit  resting  upon  the  proper  interpreta- 
tion of  a  land  grant  act  of  Congress.s  A  Federal  question  is  likewise  pre- 
sented where  a  complainant  claims  equitable  title  to  Federal  lands  as  a 
pre-emptor,  and  the  question  in  dispute  is  whether  he  has  a  rigiit  to  such 
title  under  the  Federal  land  laws.6 

[m]     Suits  on  Federal  judgments. 

The  fact  that  a  suit  was  brought  to  recover  the  amount  of  a  Federal 
judgment  does  not  make  it  a  suit  arising  under  the  Constitution  and  laws 
of  the  United  States. «  Such  a  suit  is  nothing  more  than  the  case  of  an 
ordinary  right  of  property  sought  to  be  enforced  and  cannot  of  itself  give 
tlie  Federal  courts  jurisdiction.^  Many  suits  respecting  the  enforcement  or 
interpretation  or  enjoining  of  Federal  judgments  are  maintainable  as  an 
exercise  of  the  ancillary  jurisdiction  and  regardless  of  citizenship  or 
amount  in  dispute. lo 

[n]     Federal  question  must  appear  from  plaintiff's  own  statement. 

It  was  held  under  the  act  of  187512  and  is  also  the  rule  under  tiie  amend- 
ment   of    1 887-1 8S8,    that    where    the    original    jurisdiction    of    the    circuit 

r.  S.  22.  33  L.  ed.  849.  10  Sup.   Ct.  188  U.  S.  526.  47  L.  ed.  .575.  23  Sup. 

Rep.  .50n :  Brown  University  v.  Rhode  Ct.  Rep.  365. 

Island  College.  .56  Fed.  55."  «.Joncs   v.   Florida,   etc.   R.    Co.   41 

iBAnte.   §   7.  Fed.  71. 

iDe  Lamar,   etc.  ]\Iin.   Co.   v.   Nes-         sMetcalf  v.   Watertown,   128  U.   S. 

I.itt.    177    V.   8.    523.    44   L.    ed.    872.  588,   32   L.   ed.   544.   9   Sup.   Ct.   Rep. 

2n  Sup.  Ct.  Rep.  715.  173;   Pope  v.   Louisville,  etc.   R.   Co. 

^Shoshone  Min.  Co.  v.  Rutler.  177  173  U.  S.  573.  43  L.  ed.  814.  10  Sup. 

U.  S.  505.  44  L.  ed.  865,  20  Sup.  Ct.  Ct.  Rep.  500. 

Rep.  726;  Blackburn  v.  Portland,  etc.        ^Providence     Savings     Societv     v. 

Min.    Co.    175   U.   S.    571.   44   L.   ed.  Ford,  114  U.  S.  642.  29  L.  ed.  261,  5 

276,    20    Sup.    Ct.    Rep.    222;    Joy    v.  Sup.    Ct.    Rep.    1104;    si^e    Berger    v. 

St.  I^uis.  122  Fed.  527.  "  Douglass,  5  Fed.  23,  2  McCrarv.  483. 

sDe    Lamar,    etc.    Co.    v.    Nesbitt.        lOAnte.  §  3. 
177  U.  S.  .y27.  44  L.  ed.  872,  20  Sup.         i^^fetcalf    v.     Watertown.    12S    U. 

Ct.   Rep.    715.  S.  rM.  .32  L.  ed.  543,  0  Sup.  Ct.  Rep. 

<Doolan  v.  Carr.   125  U.  S.  618.  31  173;     Colorado,    etc.    Alining    Co.    v. 

L.  ed.  844.  £     Sup.     Ct.    Rep.    1228:  Turck.   150  U.  S.   138,  37  L.  ed.  1030, 

Pierce  v.  :\Iol liken.  78  Fed.  196.  14  Sup.  Ct.  Rep.  35. 

SNortlicni  Pac.  R.  Co.  v.  Soderberg. 

327 


§   130  CIRCUIT  COURT — JURISDICTION.  [Code  Fed. 

court  is  invoked  on  the  ground  that  the  determination  of  the  suit  depends 
upon  some  Federal  question,  that  fact  must  apear  from  the  declaration  or 
bill  of  the  party  suing.is  The  same  rule  is  followed  also  in  cases  of  re- 
moval from  a  State  to  a  circuit  court  on  the  ground  that  a  Federal  question 
is  presented.i*  Where  such  a  showing  does  not  appear  in  the  course  of 
correct  and  logical  pleading,  in  the  plaintiff's  declaration,  jurisdiction  can- 
not be  created  by  the  statement  of  some  defense  involving  a  Federal 
question,  either  in  the  form  of  allegations  in  plaintiff's  complaint  anticipat- 
ing such  defense  or  by  the  allegation  of  defendant's  answer  asserting  it.i5 
But  bad  pleading  on  the  part  of  the  plaintiff  in  failing  to  allege  a  Federal 
question  where  one  exists  cannot  defeat  the  defendant's  right  of  removal. is 

§  130.     Jurisdiction  where  United  States  are  plaintiffs  or  peti- 
tioners. 

The  circuit  courts  of  the  United  States  shall  have  original 
cognizance,  concurrent  with  the  courts  of  the  several  States,  of  all 
suits  of  a  civil  nature,  at  common  law  or  in  equity  ...  in 
which  controversy  the  United  States  are  plaintiffs  or  petitioners. 

Part  of  §  1  act  Mar.  3,  1875,  c.  137,  18  Stat.  470,  as  amended  Mar.  3, 
1887,  c.  373,  and  corrected  Aug.  13,  1888,  c.  866,  25  Stat.  433,  U.  S. 
Comp.  Stat.  1901,  p.  508. 

If  a  statute  providing  for  a  suit  by  the  United  States  does  not  specify 
venue  it  is  controlled  by  the  above  section,  i  In  a  controversy  in  which  the 
United   States   are   plaintiffs   or  petitioners  the  circuit   court  has  original 

isAnte,    §    2,    note.[n;    Metcalf   v.  654;  Walker  v.  Collins,  167  U.  S.  57, 

Watertown,    128    U.    S.    589,    32    L.  42  L.  ed.  76.  17  Sup.  Ct.  Rep.  738; 

ed.  544,  9   Sup.  Ct.  Rep.   173;    Colo-  Gablenmn  v.  Peoria,  etc.  Rv.  179  U. 

rado.  etc.  iSiin.  Co.  v.  Turck.  150  U.  S.   337,   45   L.   ed.   222,   21    Sup.    Ct. 

S.   138,  37   L.   ed.   1030,   14   Sup.   Ct.  Rep.    171;     State    v.    Virginia,     etc. 

Rep.  35:   Borgmever  v.  Idler,  159  U.  Chemical  Co.  117  Fed.  727;  Mayo  v. 

S.  413,  40  L.  ed.  201,  16  Sup.  Ct.  Rep.  Dockery,    108    Fed.    897;     Broadway 

36;  Third  St.,  etc.  Ry.  v.  Lewis,  173  Ins.  Co.  v.  Chicago,  etc.  Ry.  101  Fed. 

U.  S.  460,  43  L.  ed.  767,  19  Sup.  Ct.  507. 

Rep.  451 ;  Nashville,  etc.  Ry.  v.  Tay-  i  sMetcalf  v.  Watertown,  128  U.  S. 

lor,  86  Fed.  174;  Minnesota  V.  Duluth,  589,   32  L.   ed.   544,  9  Sup.   Ct.  Rep. 

etc.  R.   Co.  87  Fed.  497;   Press  Pub.  173;    Tennessee   v.  Union  Bank,   152 

Co.  V.  Monroe,  164  U.  S.   110,  41   L.  U.  S.  454,  38  L.  ed.  512,  14  Sup.  Ct. 

ed.  369,  17  Sup.  Ct.  Rep.  40;  Hanford  Rep.    654;    Shields   v.    Boardman,   98 

V.   Davies,    163  U.   S.   273,   41   L.  ed.  Fed.  455;  California,  etc.  Co.  v.  Mil- 

158,  16  Sup.  Ct.  Rep.   1051;   Oregon,  ler,   96   Fed.    19;    Spencer  v.   Duplau 

etc.  Rv.  V.  Skottowe,  162  U.  S.  490,  Silk  Co.  191  U.  S.  526,  48  L.  ed.  287, 

40  L.  ed.  1049,  16  Sup.  Ct.  Rep.  869.  24   Sup.   Ct.   Rep.   174;    Arkansas  v. 

i4Boston,  etc.  Min.  Co.  v.  Montana,  Kansas,    etc.    Co.    183   U.    S.    185,   46 

etc.  Co.  188  U.  S.  639,  47  L.  ed.  631,  L.  ed.  144,  22  Sup.  Ct.  Rep.  47;  Third 

23    Sup.    Ct.   Rep.   434;    Arkansas   v.  St.  R.    Co.   v.   Lewis,   173  U.    S.   457, 

Kansas,    etc.   R.    R.    183    U.    S.    185,  43  L.  ed.  766.  19  Sup.  Ct.  Rep.  451. 

46  L.  ed.   144,  22  Sup.   Ct.  Rep.  47;  lePost,  §   133   [e]. 

Tennessee  v.  Union,  etc.  Bank,  152  I^.  lUnited    States   v.    Northern    Pac. 

S.  460,  38  L.  ed.  513,  14  Sup.  Ct.  Rep.  R.  R.  134  Fed.  715,  67  C.  C.  A.  260. 

328 


i 


Procedure]  IN  CASES  OF  DIVERSE   CITIZENSHIP.  §   131   [a] 

jrarisdiction  without  regard  to  the  amount  involved. 2  Where,  however,  the 
United  States  is  a  mere  formal  party  and  without  interest  in  the  suit 
it  is  not  a  plaintiff  within  the  meaning  of  the  section,  and  the  amount  in 
dispute  in  such  case  must  exceed  two  thousand  dollars  in  order  to  give  the 
circuit  court  jurisdiction. 3  An  action  by  the  United  States  on  a  contractor's 
bond  for  government  work  has  been  held  within  this  section,  although 
brought  for  the  benefit  of  materialmen.*  The  United  States  is  also  given 
the  right  to  bring  suit  in  a  district  court  in  a  common  law  case,  and  this 
right  is  extended  to  an  officer  thereof  duly  authorized. 5  So  both  the  cir- 
cuit and  district  court  have  jurisdiction  of  a  suit  by  the  government  on 
the  official  bond  of  a  public  officer.6  A  general  discussion  of  the  scope 
and  extent  of  Federal  jurisdiction  in  cases  in  which  the  United  States  is 
a  party  will  be  found  in  a  previous  section.7 

§  131.  In  cases  of  diverse  citizenship,  or  land  grants  from  dif- 
ferent States. 
The  circuit  courts  of  the  United  States  shall  have  original  cog- 
nizance, concurrent  with  the  courts  of  the  several  States,  of  all  suits 
of  a  civil  nature,  at  common  law  or  in  equity,  where  the  matter  in 
dispute  exceeds,  exclusive  of  interest  and  costs,  the  sum  or  value 
of  two  thousand  dollars  ...  in  which  there  shall  be  a  con- 
troversy between  citizens  of  different  States,  in  which  the  matter 
in  dispute  exceeds,  exclusive  of  interest  and  costs,  the  sum  or  value 
aforsaid,'^^^"tg]  or  a  controversy  between  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States, ^^^^  or  a  controversy 
between  citizens  of  a  State  and  foreign  States,  citizens,  or  subjects, 
in  which  the  matter  in  dispute  exceeds,  exclusive  of  interest  and 
costs,  the  sum  or  value  aforesaid. "^'^ 

Part  of  §  1.  act  Mar.  .3,  1875,  e.  137,  18  Stat.  470,  as  amended  Mar.  3, 
1887,  c.  373,  and  corrected  Aug.  13,  1S88,  c.  866,  25  Stat.  433,  U.  S. 
Comp.  Stat.  1901,  p.  508. 

[a] — History  of  provision. 

Under  section  11  of  the  judiciary  act  of  178910  the  circuit  courts  were 
given  original  jurisdiction  concurrent  with  the  State  courts,  of  civil  suits 

2Unit^d  States  v.  Savward.  160  U.        ^United  States  v.  Churchvard.  132 

S.  4ns.  40  L.  ed.  oOS.  16  Sup.  Ct.  Rep.  Fed.   8-2:    but   see.   United   States   v. 

371;    Follett  v.   Tillinghast.   82   Fed.  Henderlong.  102  Fed.  2;  United  States 

241:   United  States  v.  Reid.  90   Fed.  v.    Sheridan.    119    Ferl.    2.36;    United 

d-^t;   United  States  v.  Flournov,  etc.  States  v.  Barrett,   135  Fed.   189. 
Co.    71    Fed.    576:    Ignited    States    v.        sPost.  §  196. 

Kentucky  River  Mills,  45  Fed.  273;        eUnited  States  v.  Belknap,  73  Fed. 

United  States  v.   Shaw,  39  Fed.  433,  19. 
3  L.R.A.  232.  TAnte.   §   2    [1]. 

sUnited    St:ites    v.    Sheridan.     119         101    Stat.   78. 
Fed.  238. 

329 


S   131   [b]  CIRCUIT   COURT— JURISDICTION.  [Code  Fed. 

where  "an  alien  is  a  party  or  the  suit  is  between  a  citizen  of  the  State 
where  the  suit  is  brought  and  a  citizen  of  another  State"  if  the  value  of  the 
matter  in  dispute  exclusive  of  costs  exceeded  live  hundred  dollars.  The 
act  of  Mar.  3,  1875,  while  leaving  the  jurisdictional  amount  the  same,  gave 
the  circuit  court  jurisdiction  of  controversies  "between  citizens  of  dit 
ferent  States"  using  the  very  words  of  the  Constitution!  i  and  avoiding 
the  embarrassment.-,  which  arose  under  the  act  just  mentioned,  limiting  the 
authority  of  the  circuit  courts  to  suits  "between  a  citizen  of  the  State  where 
the  suit  is  brought  and  a  citizen  of  another  State."  The  act  of  1887  and 
1888  changed  the  provisions  of  the  act  of  1875  merely  by  raising  tlu- 
jurisdictional  amount  from  five  hundred  dollars  to  two  thousand  dollars 
and  made  it  "exclusive  of  interest  and  costs"  instead  of  "exclusive  of  costs." 
This  section  gives  citizens  of  different  States  the  right  to  sue  in  the  Fed- 
eral courts,  and  the  fact  that  the  State  legislation  has  in  a  particular  case 
conferred  exclusive  jurisdiction  on  the  State  courts  cannot  oust  such 
jurisdiction.!  2 

[bj     Amount  in  controversy. 

Concerning  those  provisions  of  the  act  of  Mar.  3,  1887,  embodied  in  the 
above  Code  section,  it  is  uniformly  held  that  the  circuit  court  lias  juris- 
diction without  regard  to  the  amount  involved,  of  a  controversy  between 
citizens  of  the  same  State  claiming  lands  under  grants  of  different  States,i3 
but  that  it  has  jurisdiction  of  controversies  between  citizens  of  different 
States,  or  between  citizens  of  a  State  and  foreign  States,  citizens  or  subjects, 
only  when  the  amount  exclusive  of  interest  and  costs  exceeds  two  thousand 
dollars.i*  The  general  subject  of  the  amount  in  controversy  necessary  ti) 
give  the  circuit  court  jurisdiction,  whether  the  suit  is  one  arising  under  the 
Federal  laws,  or  under  the  provision  as  to  diverse  citizenship,  is  discussed 
in  a  previous  section,  i-^ 

[c]     What  constitutes  State  citizenship. 

In  order  to  constitute  State  citizenship  such  as  will  entitle  a  party  to 
sue  in  the  circuit  court  there  must  be  actual  residence  in  the  particular 
State  and  the  intention  that  such  residence  shall  be  permanent.!''  This 
rule  is  unaffected  by  the  14th  Amendment,  declaring  that  '"'all  persons  born 
or  naturalized  in  the  United  States  and  subject  to  the  jurisdiction  thereof 
.     .     .     are    citizens    of    the    State    where    they    reside. "is      No    particular 

!iOber  V.  Gallagher,  93  U.  S.  204.  Fed.  241;   United  States  v.  Kentuckv 

23  L.   ed.   830.     Ante.   §  2.  River    INIills,    45    Fed.    273;     United 

i2Schurmeier    v.    Connecticut,    etc.  States  v.  S'liaw,  39  Fed.  433,  3  L.R..A. 

Ins.  Co.  137  Fed.  42,  69  C.  C.  A.  22.  232;   United  States  v.  Sheridan,  119 

See  ante,   §  5.  Fed.   230:    United  States  v.   Render- 

!3United  States  v.  Sayward,  160  U.  long,  102  Fed.  2. 

S.  493,  40  L.  ed.  508,  16  Sup.  Ct.  Rep.  is  Ante,   §   129.['i]-[g:s] 

371.  1  T:\Iarks    v.    ^Marks.    75  Fed.  3'25 ; 

nUnited   States    v.    Sayward,    160  Mitcliell   v.  United   States,  21    Wall. 

U.  S.  493,  40  L.  ed.  508.  1(3  Sup.  Ct.  352.  22  L.  ed.  588. 

Eep.  371;   Follett  v.  Tilllinghast,  82  miarks  v.  Marks,  75  Fed.  325. 

330 


rroieflurel 


IX    CASES    OF    DIVERSE    CITIZENSHIP. 


I   131   [d] 


J'.ngth  of  time  for  residence  is  required,  all  that  is  necessary  being  a  re- 
.iioval  to  the  particular  State  with  the  intention  of  remaining  there.is 
The  motive  of  removal  is  immaterial. -o  Actual  residence  is  necessary. 
Iiowever.  and  a  person  having  once  lost  his  residence  in  a  State  by  having 
i.ioved  therefrom  and  making  his  domicile  in  another  State  does  not  by 
making  preparations  for  return  to  his  first  residence  and  having  fixed  in- 
:ention  to  remove  there,  become  a  resident  of  such  State  until  actual  re- 
uirn.i  Citizens  of  the  Territories  or  of  the  District  of  Odumbia  are  not 
>  itizens  of  a  State,  and  hence  cannot  sue  or  be  sued  and  on  the  ground  of 
■  liverse  citizenship  in  the  circuit  court, 2  even  though  a  person  competent  to 
-ue  be  joined  with  such  a  person  as  coplaintil?  or  codefendant.s  Neither 
■s  a  State  itself  a  citizen  within  the  meaning  of  the  judiciary  acts  and 
'lence  in  a  suit  between  a  State  and  a  citizen  of  another  State  a  circuit 

•lurt  ha>;  no  jurisdiction  on  the  grounds  of  diverse  citizenship.^ 

Where  diverse  citizenship  existed  at  the  commencement  of  the  suit,  a 
■.ubsequent  change  of  domicile  will  not  effect  the  court's  jurisdiction. 5  P>ut 
where  there  is  an  entire  want  of  jurisdiction  it  cannot  be  obtained  by 
waiver  on  the  part  of  the  litigants. 6  A  wife's  domicile  is  that  of  her 
liusband  for  jurisdictional  purposes."     The  necessity  for  explicit  allegation 

if  the  requisite  citizenship  is  discussed  elsewhere. s 

d1     Re£l  and  representative  parties. 
As  already  stated  the  courts  will  look  to  the  real  party  in  determining 
jurisdictional  questions  arising  on  the  grounds  of  diverse  citizenship,  and 
hence  a  nominal   complainant   through   whom  the  real   complainant   seeks 


iflCooper    V.    Pralbraith,   Fed.   Cas.  .39  L.  ed.  2.31,   1.5  Sup.  Ct.  Rep.  192; 

So.  .3.193,  3  "Wash.  C.  C.  .546;  Morris  Germania  Ins.  Co.  v.  Wisconsin.  1U» 

V.  Gilmer,  129  U.  S.  328.  .32  L.  ed.  G9o,  U.  S.  473,    30   L.    ed.    4^il.  7  Sup.  Ct. 

':>  Sup.  Ct.  Rep.  289:    Marks  v.  Marks,  Rep.    2G0:    Stone   v.    South    Carolina, 

75  Fed.  32(3.  117  U.  S.  430.  29  L.  ed.  962.  6  Sup.  Ct. 

2oCooper  v.  Galbraith,  3  Wash.  C.  Rep.  799;  Ames  v.  Kansas,  111  L.  S. 
C.  546.  Fed.  Cas.  Xo.  3.193;  Briggs  449,  28  L.  ed.  482,  4  Sup.  Ct.  Rep. 
V.  French.  2  Sumn.  256.  Fed.  Cas.  No.  437  ;  Commonwealth  v.  Cliicago.  etc. 
1.871.  See  also  Morris  V.  Gilmer,  129  R.  Co.  123  Fed.  457;  Arkansas  v. 
U.  S.  .3f28.  .32  L.  ed.  695.  9  Sup.  Ct.  Kansas,  etc.  Co.  96  Fed.  353;  Hick- 
Rep.  289.  man  v.  Missouri,  etc.  R.  Co.  97  Fed. 

iPacific  Mutual,  etc.  Co.  v.  Toinp-  116. 
kins.  101  Fed.  539.  41  C.  C.  A.  488.  SKoenigsberger  v.  Mining  Co.    15S 

2.Ante.    §    2.    subdiv.    q;    Hooe    v.  U.   S.  41.  39  L.   ed.  889.   15  Sup.   Ct. 

lamieson.    IG^G  U.    S.    398.   41    L.    ed.  Rep.  751;   Louisville  R.  Co.  v.  Trust 

10.50.  17  Sup.  Ct.  Rep.  596;    Johnson  Co.    174   U.    S.    552.   43    L.    ed.    1081, 

v.   P.unkerhill.    etc   Ck).   46    Fed.    417;  19   Sup.   Ct.   Rep.   817:    Haracovic   v. 

Tameron   v.    Hodges.    127   U.   S.    32.5.  Standard   Oil    Co.    105    Fed.   785. 
32  L.  ed.  134.  8  Sup.  Ct.  Rep.   1154;        sEmpire  Coal   Co.  v.   Empire  Coal 

Barnev  v.  Baltimore.  0  Wall.  280.  18  Co.    1.50   U.   S.    159,   37    L.   ed.    1037, 

L.  e(l.'825.  14  Sup.  Ct.  Rep.  66;  Wolfe  v.  Hart- 

3TIooe  V.  .Taiiiieson.   166  C.  S.  398.  ford    Ins.   Co.    148    V.    S.   389.    37    L. 

41  L.  ed.  1050.  17  Sup.  Ct.  Rep.  596;  ed.  493.  13  Sup.  Ct.  Rep.  602. 
New  Orleans  v.  Winter.  1   Wheat.  91.        ^Thompson   v.   Stalmann,   139  Fed. 

4  L.  ed.  44.  93. 

••Ante.  §  2,  subiliv.  q.;   Postal,  etc.        ^Ante.  §  9. 
•Cable  Co.  v.   Alabama,   lo.i  V.  S.  482. 

.331 


§  131   [e]  CIRCUIT    COURT— JURISDICTION.  [Code  Fed. 

relief  will  not  be  considered  a  party  to  the  suit.  But  it  is  also  well  settled 
that  the  courts  will  look  to  the  citizenship  of  the  party  in  whom  the 
cause  of  action  is  vested,  and  not  to  the  status  of  his  predecessor  in 
interest,  or  those  beneficially  interested.  lO 

[ej     Several  parties,  plaintiff  or  defendant. 

As  stated  in  a  previous  section, 12  Federal  jurisdiction  fails  where  all 
parties  on  one  side  of  a  controversy  have  not  a  right  by  diverse  citizenship 
to  sue  all  parties  on  the  other.is  But  an  arrangement  of  parties  which  is 
merely  a  contrivance  to  found  jurisdiction  on  diverse  citizenship  in  the  circuit 
court,  will  not  avail.i*  Thus  the  circuit  court  has  no  jurisdiction,  on  the 
grounds  of  diverse  citizenship,  of  a  suit  by  a  mortgagee  of  municipal  water- 
works to  enforce  a  contract  of  the  company  against  the  city  where  there 
was  no  antagonism  in  the  claim  of  the  mortgagee  as  respects  the  water 
company  and  no  diversity  of  citizenship  between  the  water  company  and 
the  city.15  Where  diversity  of  citizenship  does  not  exist  between  certain 
defendants  and  the  plaintili's,  the  suit  may  be  dismissed  as  to  the  former, 
and  jurisdiction  thus  retained,  where  they  are  not  indispensable  parties 
to  the  suit  and  such  dismissal  will  not  prejudice  them. is 

[f  J     Citizenship  of  corporations. 

The  word  "citizen"  in  the  judiciary  acts  has  always  been  held  to  include 
corporations.! 8  Under  the  early  decisions  the  jurisdiction  in  suits  between 
citizens  of  one  State  and  corporations  of  another  was  maintained  on  the 
theory  that  the  persons  composing  the  corporations  were  suing  or  being 
sued,i9  and  hence  if  some  members  of  the  corporation  were  citizens  of 
the  same  State  as  the  opposing  party,  jurisdiction  was  denied.20  it  is  now 
however  well  settled  that  for  the  purpose  of  suing  on  being  sued  in  a 
Federal  court,  the  stockholders  of  a  corporation  are  conclusively  presumed 
to  be  citizens  of  the  State  creating  it.i  But  this  presumption  does  not 
prevent  the  stockholders  in  suing  for  the  corporation,  from  alleging  actual 
citizenship  different  from  that  of  the  corporation  and  so  sustaining  Federal 

10 Ante,   §   2.[s]  indispensable  parties  see  post.  §§  902, 

izAnte.  §  2.[q]  1010. 

isHooe  V.  Jamieson,  166  U.  S.  395,        isBarrow,  etc.  Co.  v.  Kane,  170  U. 

41  L.  ed.  1049,  17  Sup.  Ct.  Rep.  596;  S.  100,  42  L.  ed.  965,  18  Sup.  Ct.  Rep. 

Abel  V.  Book,  120  Fed.  47;  Fletcher  526. 

V.  Hamlet,   116  U.   S.  408,  29  L.  ed.        isBarrow,  etc.  Co.  v.  Kane,  170  U. 

679,   6   Sup.   Ct.   Rep.   426;   Mirabile  S.    100.   42   L.    ed.   965,    18   Sup.    Ct. 

Corp.  v.  Purvis,  143  Fed.   920.  Rep.  526. 

i4Dawson   v.    Columbia  Trust   Co.        2  0Commercial,    etc.    Bank    v.    Slo- 

197  U.  S.  178,  49  L.  ed.  713,  25  Sup.  comb.  14  Pet.  60,  10  L.  ed.  3.54. 
Ct.  Rep.  420.  lAnte,  §  2  [t] ;  Barrow,  etc.  Co.  v. 

15 Dawson   v.    Columbia    Trust    Co.  Kane.   170  U.   S.   100,  42  L.  ed.   965. 

197  U.  S.  178,  49  L.  ed.  713,  za  Sup.  18  Sup.  Ct.  Rep.  52«;   National,  etc. 

Ct.  Rep.  420.  Co.   v.    Tugman,    106    U.    S.    118,   27 

isSee    ante.    §    2    [q] ;    Mason    v.  L.    ed.    87.    1    Sup.    Ct.   Rep   58;    St. 

Dullag'ham.  82  Fed.  689.  27  C.  C.  A.  Louis,  etc  R.  Co.  v.  James.  Itil  U  S. 

296;    Grove   v.    Grove,   93    Fed.    865.  555,   559,  40  L.  ed.  805,   16  Sup.   Ct. 

For  distinctions  as  to  necessary  and  Rep.  621 ;  Mississippi,  etc.  Co.  v.  Pat- 

332 


Procedure]  IN  CASES  OP  DIVERSE  CITIZENSHIP.  §   131   [si 

jurisdiction. 2  A  corporation  does  not  become  a  citizen  of  another  State  by 
transacting  business  therein  nor  by  having  an  office  therein, 3  nor  by  agree- 
ing as  a  condition  of  being  permitted  to  transact  business  in  another  State, 
that  it  may  be  sued  therein.*  It  is  established  also  that  a  State  corpora- 
tion incorporating  under  the  laws  of  another  State  does  not  thereby  become 
a  citizen  of  the  second  State  for  the  purposes  of  Federal  jurisdiction. 5  Hence 
a  citizen  of  the  second  State  may  bring  suit  against  it  or  have  a  suit  re- 
moved on  the  ground  of  diverse  citizenship. 6 

[gj     Averment  of  citizenship  essential. 

Where  the  jurisdiction  depends  on  the  citizenship  of  the  parties  it  is 
essential  that  such  citizenship  or  the  facts  which  in  legal  intendment  consti- 
tute it  should  be  distinctly  and  positively  averred  in  the  pleadings  or  other 
parts  of  the  record. 8  It  is  not  sufficient  that  the  jurisdiction  may  be  in- 
ferred argumentatively  from  the  pleadings. »  The  averment  must  show 
that  the  requisite  citizenship  existed  at  the  commencement  of  the  suit.io 
WTiere  jurisdiction  is  dependent  upon  the  citizenship  of  the  plaintiff's  as- 
signor such  citizenship  must  affirmatively  appear.n  Likewise  Avhere  an 
executor,  administrator,  trustee  or  receiver  is  suing  in  his  representative 
capacity  his  personal  citizenship  must  be  alleged,i2  and  the  court  has  no 
jurisdiction  where  a  defendant  trustee  and  plaintiff  are  residents  of  the 
same  State.is     So  also  where  a  party  sues  by  a  guardian  or  next  friend, 

terson,  98  U.   S.  407,  26  L.  ed.  208:  11    Sup.    Ct.   Rep.   449:    Chapman    v. 

Marsliall    v.    Balumore.    etc.    R.    Co.  Barney,  129  U.  S.  681.  32  L.  ed.  801, 

10  How.   329.   14  L.  ed.   959;    Louis-  9  Sup.  Ct.  Rep.  426,  and  see  Railway 

ville,  etc.   R.   Co.   v.  Letson.   2   How.  Co.  v.  Ramsey.  22  Wall.  322.  22  L.  ed. 

558.  11  L.  ed.  378.  823;  Rriges  v.  Sperrv,  95  U.  S.  401, 

2Do*-tor  V.  Harrington,    196    U.  S.  24  L.  ed.    390;  Menard  v.  Goggan.  121 

587,  49  L.  ed.  606,  25  Sup.  Ct.  Rep.  U.  S.  253,  30  L.  ed.  914,  7  Sup.   Ct. 

355.  Rep.  873. 

3Railroad  Co.  v.  Koontz,  104  U.  S.  oRrown  v.  Keene,  8  Pet.  112,  8  L. 

12,  26  L.  ed.  043;  Ex  parte  Schollen-  ed.  885;  Robertson  v.  Cease,  97  U.  S. 

berger,  96  U.  S.  309,  24  L.  ed.  853 ;  646,  24  L.  ed.  1057 ;  Continental  Ins. 

In  re  Keasbey,  etc.  Co.  160  U.  S.  229,  Co.  v.  Rhoads,  119  U.   S.  240,   30  L. 

40  L.  ed.  405,  16  Sup.  Ct.  Rep.  273;  ed.  381,  7   Sup.  Ct.  Rep.  193. 

McOormick   Co.   v.   Walthers.   134   U.  lOBenjamin  v.  Citv  of  New  Orleans, 

S.  43,  33  L.  ed.  834.  10  Sup.  Ct.  Rep.  71   Fed.  758;  also  74  Fed.  417,  20  0. 

4S5;    Freemen   v.   Aimerican,   etc.    Co.  C.    A.    591;    Chicago   Lumber    Co.   v. 

116  Fed.  551;  United  States  v.  South-  Comstocks,  71  Fed.  477.   18  C.  C.  A. 

ern  Pac.  R.  Co.  49  Fed.  302.  207 ;     Laskey  v.   IMining  Co.   56  Fed. 

^Southern  Pac.  Co.  v.  Denton,  146  628;  Brigelv.  Coal,  etc.  Co.  73  Fed. 

U.  S.  202,  36  L.  ed.  943,  13  Sup.  Ct.  13. 

Rep.  44;  Piatt  v.  Massachusetts,  etc.  uNorth  American,  etc.  Co.  v.  Mor- 

Co.  103  U.   S.  707,  26  L.  ed.  601.  rison,  178  XT.   S.  268,  44  L.  ed.  1064, 

5 Ante,  §  2   [tl.  20  Sup.  Ct.  Rep.  809;  Brock  v.  North- 

sFreeman  v.  American,  etc.  Co.  116  westprn,   etc.    Co.    130  U.   S.   341.   32 

Fed.  .548.  L.    ed.    905,    9    Sup.    Ct.    Rep.    552; 

8 Ante,  §  9.    Wolfe  v.  Hartford,  etc  see  Morgan  v,  Gav,   19  Wall.   82,  22 

Tns.  Co.  148  U.  S.  389,  37  L.  ed.  493,  L.  ed.  100:   Hampton  v.  Truckee  Ca- 

13  Sup.  Ct.  Rep.  602;    Home  v.  Ham-  nal  Co.  19  Fed.  2.  9  Sawv.  381. 

mond  Co.  155  U.  S.  393,  39  L.  ed.  197.  izCoal  Co.  v.  Blatehford,  11  Wall. 

15   Sup.    Ct.   Rep.    107;    Anderson    v.  172,  20  L.  ed.  179. 

Watt,  138  U.  S.  702,  34  L.  ed.   1081,  isGardner  v.   Brown,  21   Wall.  41, 

333 


S    131   [h] 


CIRCUIT    COUKT^.TIjRISDICTION. 


[Code    Fed. 


the  citizenship  of  the  party  hiwiself  must  be  allejjjed.i*  In  (lie  case  ot'  a 
partnership  or  joint  stook  company,  tliere  lieing  no  jnesnmption  tliat  i  !io 
members  thereof  are  citizens  of  the  particular  State  in  wliicli  it  docs  busi- 
ness,! 5  the  citizenship  of  each  of  the  members  must  be  allcgcil.iG  I'uL 
diverse  citizenship  being  alleged  an  allegation  of  residence  is  unnecessary. it 
The  decisions  are  uniform  in  holding  that  an  averment  of  residence  is  not 
the  equivalent  of  an  averment  of  citizenship  for  the  purpose  of  supportijig 
Federal  jurisdiction.! s  The  following  allegations  have  also  been  declared 
insufficient,  that  a  party  is  "a  citizen  of  the  United  States.!  9  that  a  party 
is  "of"  a  certain  place.20  The  allegation  that  a  corporation  is  a  citi/.cii  of 
a  particular  State  is  not  a  sufficient  averment  of  its  titi/cnship  as  a 
corporation. 1  The  averment  should  be  that  it  is  a  covpmat  ion  croatciS 
under  the  laws  of  a  particular  State. 2 

[hj     Citizens  claiming  under  land  grants  of  different  States. 

By  the  terms  of  the  section  jtu-isdiction  is  conferred  only  where  citizens 
of  the  same  State  claim  under  land  grants  of  different  States,  hence  whcro 
the  parties  so  claiming  are  citizens  of  different  States,  jurisdiction  depends 
I'litircly  on  diverse  citizenship. ^     The  amount  in  dispute  is  immaterial. » 

[ij     Suits  between  citizens  and  aliens. 

The  circuit  court  has  jurisdiction  of  a  suit  between  a  citizen  of  a  State 
and  a  subject  of  a  foreign  State,  without  reference  as  to  which  one  is 
I'laintifT  or  defendant.''  But  the  suit  must  be  between  a  State  citizen  and 
an  alien  and  hence  the  fact  that  one  of  the  parties  is  an  alien  is  not  suf- 
ficient.8  Likewise  the  fact  that  a  party  is  a  citizen  of  the  United  States 
only  and  not  of  a  particular  State,  is  insufficient  to  give  jurisdiction. 9     A 


22  L.  ed.  527:  Donolhoe  v.  Mariposa, 
etc.  Co.  5  Sa.wv.  167,  Fed.  Cas.  No. 
.3.989. 

i4Voss  V.  Neineber.  68  Fed.  947: 
Wiggins  V.  Bethune.  29  Fed.  51  :  see 
;'nte.    §   2    [q]. 

!5Ante,  §  2. 

iGGreat  Southern,  etc.  Hotel  Co. 
V.  Jones,  177  U.  S.  449,  44  L.  ed.  842, 
20  Sup.  Ct.  Rep.  690:  Imperial  Re- 
fining Co.  V.  Wvman,  38  Fed.  574. 
3   L.R.A.   503. 

ivBaltimore.  etc.  R.  R.  v.  Dotv.  133 
Fed.  866.  67  C.  G.  A.  38. 

isHorne  v.  Hammond  Co.  155  U. 
S.  393,  39  L.  ed.  197.  15  Sup.  Ct. 
Rep.  167:  Wolfe  v.  insurance  Co.  148 
U.  S.  389,  37  L.  ed.  493,  13  Sup.  Ct. 
Rep.  602:  Menard  v.  Goggan,  121  U. 
S.  253,  30  L.  ed.  914.  7  Sup.  Ct.  Rep. 
873:  Everhart  v.  Huntsville  College, 
120  U.  S.  223,  30  L.  ed.  G23,  7  Sup. 
Ct.  Rep.  555 :  Grace  v.  Insurance  Co. 
109  U.   S.  278,  27  L.  ed.  932,  3  Sup. 


Ct.  Rep.  207 :  Brown  v.  Keene.  8  Pet. 
112.  8  L.  ed.  885:  ]\Iarks  v.  Marks 
75  Fed.  325. 

inVilson  V.  Citv  Bank.  3  Suniii. 
422.  Fed.   Cas.   Xo.'  17.797. 

20j}iekson  v.  Ashton.  8  Pet.  14S. 
8  L.  ed.  898. 

iLafayette  Ins.  Co.  v.  French.  IS 
How.  405.  15  L.  cd.  451  :  Lonergan 
V.  Illinois,  etc.  1\.  R.  o5  Fed.  55V. 
Frisbie  v.  Chesapeake,  etc.  Ry.  57 
Fed.  3:  American,  etc.  Co.  v.  Jolnison. 
60  Fed.  509.  9  C.  C.  A.  110. 

2Lafayet<<'  Ins.  Co.  v.  French.  IS 
How.  405.  15  L.  ed.  451. 

■tStevenson  v.  Fain.  195  U.  S.  Id.'.. 
49  L.  ed.   142,  25   Sup.  Ct.   Rep.  6. 

sSupra    [b]. 

THincklev  v.  Bvrne.  Deadv.  224. 
Fed.  Cas.  No.  6.510'. 

sPrentiss  v.  Brennan,  2  Blatchf. 
162.  Fed.  Cas.  No.   11,385. 

i'Picquet  v.  Swan.  5  Mason,  35. 
Fed.  Cas.  No.  11,134. 


334 


i 


Procedure]  OF   CRIMKS   AND   OFFENSES.  S   132 

citizen  of  Cuba  is  a  foreign  citizen  within  the  meaning  of  the  section, i"  as 
is  also  a  corporation  created  under  the  laws  of  a  foreign  country. n  But 
an  Indian  residing  in  the  United  States  is  not  a  foreign  citizen, 12  nor. 
unless  naturalized,  is  he  a  citizen  of  the  United  States  nor  of  the  State  of 
his  residence  within  the  meaning  of  the  statutes  conferring  jurisdiction  on 
the  Federal  courts. is 

.Jurisdictional  facts  must  appear  affirmatively.  One  party  must  be  al- 
leged to  be  a  citizen  of  a  particular  State  and  the  other  a  citizen  of  some 
particular  foreign  State, 14  the  presumption  being  that  a  case  is  without 
the  jurisdiction  of  the  Federal  courts  unless  the  contrary  appears  from  the 
record.  15  The  Supreme  Court  has  held  that  by  a  description  of  a  plaintiff" 
as  a  "citizen  of  London,  England,"  the  fact  that  he  was  a  subject  of  the 
English  crown,  did  not  affirmatively  appear; I6  and  following  this  decision 
the  circuit  court  has  held  that  a  "resident  of  Ontario,  Canada,  and  a  citize?! 
of  the  Dominion  of  Canada  and  the  Empire  of  Oreat  Britain."  is  not  a 
sufficient  averment. i"  A  recent  decision  of  the  Supreme  Court,  however, 
holds  that  an  averment  that  all  the  complainants  are  "of  Cognac  in 
France,  and  citizens  of  the  Republic  of  France"  is  sufficient,  and  that  ati 
averment  of  alienage  is  unnecessary.! s  The  circuit  court  has  no  juri^ 
diction  of  suits  between  aliens,  where  no  Federal  question  is  involved. i^* 

§  132.     Jurisdiction    of   crimes   and   offenses. 

The  circuit  courts  of  the  United  States  .  .  .  shall  liavc^ 
exclusive  cognizance  of  all  crimes  and  offenses  cognizable  under  the 
authority  of  tlie  United  States,^^^'^^^  except  as  otherwise  provided  by 
law,f'^^and  concurrent  jurisdiction  with  the  district  courts  of  the 
crimes  and  oft'enses  cogTiizable  by  them-^*^^ 

Part  of  §  1,  act  Mar.  3,  1875,  c.  137,  18  Stat.  470.  a*  amended  :\Iar.  .;. 
1887,  and  corrected  Aug.  13,  1888,  c.  866.  25  Stat.  433.  U.  S. 
Comp.  Stat  mOl,  p.  508. 

lOBetancourt  v.  .Mutual,  etc.  Ass'n.  120  U.  S.  226.  .10  L.  ed.   624.  7  Sup. 

101  Fed.  30.^.  Ct.  Rep.   552:    Stuart  v.   Easton,   156 

iiTerry  v.  Imperial  Ins.  Co.  3  Dill.  U.  S.  47,  30  L.  ed.  341.   15  Sup.  Ct. 

408.  Fed".   Cas.  Xo.   13.838:    Shattuck  R«p.  268:  Mansfield,  etc.  Ry.  v.  Swan, 

v.  Xorth  British,  etc.  Tns.  Co.  58  Fed.  ^  ^^-  ^-  ^83,  28  L.  ed.  464,  4  Sup. 

60!).  7  C.  C.  A.  386;  Sherwood  v.  New-  <^'t-  Rep.  5iz. 
port  News.  etc.  Co.  55  Fed.  1.  lestuart  v.  Easton.   156  U.   S.  46, 

i20herokee    Nation    v.    Georgia.    5  ^^  V'' /^f '  ''^^"P-u^*'  ^X^t^  "i^^.-. 

Pet.    10.   8   L.   ed.    31:    Cherokee   Na-  o. 'A^n'^'f  T'J''  ^i' ^  /^\. 

X-  e     j-1  T.'  Ti        r^  -5  C.  C.  A.   145:     see  also  Voight   v. 

tion    V.    Southern     Kansas    Ry.     Co.  ,..  ,  •  .      tV    t>     ion  i^..  1    ono 

iQc  TT    c    cr:.>    o  T        1     en (     1  "A  o  ^liphigau.  etc.  R.  R.   l.W  red.  398. 
135  U.  S.  65,!.  8  L.  ed.  594.  10  Sup.        , -,t  t>-  u     j        t^ 

Cf    TJo      (¥•-  isHennessy  V.  Rachardson  Drug  Lo. 

ut    nep.  .TOO.  .      -^  T.   ,     .^o  189  U.  S.  34.  47  L.  ed.  698.  23  i^up. 

ispaul  V.  Clulsoquie.   lO  Fed.  402.  ^.    p^     go2 

nBors  V.  Preston,  n  1  r.  S.  252,  28  mPoolev  v.  Luce.  72  Fed.  .561: 
L.  od.  419.  4  Sup.  Ct.  Rep.  407.  T.aird  v.  Mutual,  etc.  Asso.  Co.  44  Fed. 

i'>Bors  v.  Preston,  111  U.  S.  25.1,  712:  Jackson  v.  Twentvman.  2  Pet. 
28  L.  ed.  -1 10.  4  Snp.  Ct.  Rep.  407:  1.36,  7  L.  ed.  .374:  Prentiss  v.  Bren- 
sec  also  King  HriUge  Co.  v.  Otoe  Co.    nan,  2  Blatchford.  164.  Fed.  T^as.  No. 

335 


§   132   [a]  CIRCUIT   COURT— JURISDICTION.  [Code  Fed. 

[a]     In  general. 

Federal  courts  have  no  common  law  jurisdiction  in  criminal  casesi  and 
can  take  cognizance  of  offenses  only  as  authorized  by  Congress. 2  Before 
an  offense  can  become  cognizable  in  the  circuit  court  Congress  must  first 
define  or  recognize  it  as  such  and  affix  a  punishment  to  it,  and  confer 
jurisdiction  on  some  court  to  try  the  offender.3  By  the  above  section 
Congress  has  conferred  on  the  circuit  court  exclusive  cognizance  of  all 
crimes  and  offenses  cognizable  under  the  authority  of  the  United  States 
except  as  otherwise  provided  by  law. 4  The  question  whether  a  Federal 
court  has  jurisdiction  can  be  raised  at  any  stage  of  a  criminal  proceedin;^;. 
It  is  never  presumed  and  must  always  be  proved.5  The  want  of  juris- 
diction of  subject-matter  may  appear  in  such  proceeding  either  because 
there  is  no  law  making  the  act  charged  a  crime,  or  because  the  act  is  not 
properly  charged  or  because  the  facts  fail  to  show  that  the  party  charged 
committed  the  act. 6  An  indictment  found  in  a  district  court  may  on  an 
order  of  a  judge  of  that  court  be  transmitted  to  a  circuit  court,  and  that 
court  will  have  jurisdiction  although  the  transfer  was  not  made  until  after 
the  defendant  had  pleaded.'? 

[bj     Jurisdiction  in  particular  cases. 

Federal  courts  have  jurisdiction  of  the  crime  of  murder  committed  in  a 
place  under  the  exclusive  jurisdiction  of  the  United  States. 9  Perjury  be- 
fore a  State  notary  in  testimony  as  to  a  congressional  election  is  within  the 
jurisdiction  of  the  circuit  court  under  the  above  provision  and  is  not 
cognizable  in  a  State  court.io  The  offering  of  a  bribe  to  a  Federal  officer 
to  do  an  act  not  connected  with  his  Federal  duties,  is  no  violation  of  a 
Federal  law.  and  the  offender  cannot  be  subjected  to  Federal  punishment. 11 
An  act  of  Congress  declaring  that  the  embezzlement  by  a  guardian  of 
i.ioney  received  by  him  from  the  government  for  his  ward,  is  constitutional, 
and  power  may  be  vested  in  the  circuit  court  to  punish  the  offense. 1 2 
The  jurisdiction  given  by  this  section  cannot  be  defeated  by  the  refusal 
of  a  defendant  to  plead  to  an  information.! 3  Federal  jurisdiction  in  suits 
against  consuls  and  vice-consuls  is  discussed  in  a  previous  section. i* 


11.385;    Hincklev    v.    Bvrne,    Deady,        ^United   States   v.   Richardson.   28 
227,  Fed.  Cas.  No.  6.510.  Fed.  65.     See  United  States  v.  Mur- 

iSee  ante,  §  13.  phy,  3  Wall.  649.  18  L.  ed.  217.    Ante, 

2Bollraan  v.  Swart wout,  4  Cranch,    §  116  et  seq. 
■93,   2   L.   ed.   554;    United   States   v.        sUnited  States  v.  McBratney.   104 
Wiltberger,  5  Wheat.  98,  7  L.  ed.  37;    U.  S.  621,  26  L.  ed.  869.     See  ant,\ 
United  States  v.  Hudson,  7  Cranch,    §  25. 
32,  3  L.  ed.  259.  loin   re  Loney,   134  U.   S.  375,  33 

sUnited   States  v.   Hall,   98   U.   S.    L.  ed.    949.     10    Sup.    Ct.   Rep.   584, 
346,  25  L.   ed.    180;    see  also   United    Aflirmincr  38  Fed.  101. 
States  V.  Wilson,  3  Blatchf.  435,  Fed.        nUnited  States  v.  Gibson,  47  Fed. 
Cas.  No.   16,731.  834. 

^United   States   v.  Hall,   98   U.   S.        izUnited  States  v.  Hall,  98  U.  S. 
345.  2i5  L.  ed.  180.  343,  25  L.  ed.  180. 

SUnited  States  v.  Rogers,  z3  Fed.        isUnited   States  v.  Borger.  7  Fed. 
•662.  193,   19   Blatchf.   249. 

6In  re  Wolf,  27  Fed.  606.  1 4 Ante,  §  2  [i]. 

336 


tl 


Procedure!  REMOVAL   OP    CAUSES.  §   133   [a] 

[cj     "Except  as  otherwise  provided  by  law." 

The  district  courts  are  given  jurisdiction  of  all  crimes  and  offenses 
cognizable  under  the  authority  of  the  United  States  committed  within  their 
respective  districts,  or  upon  the  high  seas,  the  punishment  of  which  is  not 
capital. 16  The  jurisdiction  of  the  circuit  courts  therefore  is  exclusive  only 
in  the  cases  of  capital  offenses  and  in  other  cases  is  concurrent  with  the 
district  court  of  the  district  in  which  the  crime  or  offense  is  committed.  17 
The  circuit  and  district  courts  are  given  concurrent  jurisdiction  over 
certain  offenses  committed  on  the  great  lakes  and  the  waters  connecting 
them.18 

[d]     Concurrent  with  district  court 

The  act  giving  the  circuit  court  concurrent  jurisdiction  with  the  district 
court  over  crimes  and  offenses,  operates  prospectively  and  hence  an  after- 
created  offense  may  be  cognizable  in  the  circuit  court,  although  jurisdiction 
may,  in  terms  be  conferred  on  the  district  court  only.i 

§  133.  Removal  of  causes  arising  under  Federal  Constitution, 
treaties  or  laws. 
Any  suit  of  a  civil  nature,  at  law  or  in  equity,  arising  under  the 
Constitution  or  laws  of  the  United  States,  or  treaties  made,  or 
which  shall  be  made,  under  their  authority,  of  which  the  circuit 
courts  of  the  United  States  are  given  original  jurisdiction  by  the 
preceding  section,  [a]-[f]2  ^j^ich  may  now  be  pending,  or  which  may 
hereafter  be  brought,  in  any  State  court,  may  be  removed  by  the 
defendant  or  defendants  therein  to  the  circuit  court  of  the  United 
States  for  the  proper  district. "^^^ 

First  clause  §  2,  act  Mar.  3,  1875,  c.  137,  18  Stat.  470,  as  amended  Mar. 
3,  1887.  c.  373,  24  Stat.  552,  and  corrected  Aug.  13,  1888,  c.  866,  25 
Stat.  433,  U.  S.  Comp.  Stat.  1901,  p.  509. 

[a]     Removal  of  suits  involving  Federal  questions — in  general. 

The  original  jurisdiction  of  the  circuit  courts  over  suits  arising  under  the 
Constitution  and  laws  of  the  United  States  has  already  been  considered. 5 
The  jurisdiction  of  the  circuit  courts  on  removal  of  such  suits  from  the 
State  courts  seems  to  present  no  different  principles.  A  suit  is  not  re- 
movable simply  because  an  act  of  Congress  is  to  be  construed  or  applied. 

i«Post,  §  1(W.  lUnited  States  v.  Holliday,  3  Wall. 

iTUnited   States    v.    Holliday,     3,  415,  18  L.  ed.   182.     See  also  United 

Wall.    414,    18    L.    ed.    182;    United  States    v.    Block,    3    Biss.    213,    Fed. 

States   V.    Plumer,   3   Cliff.    28.    Fed.  Cas.  Xo.  14.610. 
Cas.    No.    16,056;    United    States    v.        2  Ante,  §  12i9. 

Reese,   4  Sawy.   629,    Fed.    Cas.   No.        sAnte.    §    129.     [h]-[n]     see    also 

16,1.38.  ante,  §  2.   [g] 

IS  Ante,  §  27. 
Fed.  Proc.— 22.  337 


§   133   [b]  CIRCUIT    COURT— JURISDICTION.  [Code   Fed. 

'Dicrc  niust  be  a  dispute  as  to  the  construction  of  the  act. 6  The  right  of 
rciuoval  exists  whei-e  plaintiff's  statement  shows  that  his  recovery  would 
be  defeated  by  a  construction  of  some  Federal  provision,  which  may  fairly 
be  contended  for.  Thus,  a  suit  by  a  State  to  recover  lands  under  a  State 
statute  forfeiting  a  previous  railroad  grant  is  removable  where  the  validity 
of  the  act  of  forfeiture  is  questionable  under  the  Federal  Constitution. T 
It  has  been  held  that  a  complaint  by  a  State  alleging  that  the  defendant 
is  about  to  import  into  the  State  a  number  of  armed  and  lawless  men. 
raises  a  Federal  question  under  the  14th  Amendment,  and  entitles  the  de- 
fendant to  a  removal. 8  But  a  proceeding  by  a  State  to  forfeit  a  franchise 
cannot  be  removed  to  the  Federal  courts  on  the  ground  that  it  impairs  the 
obligations  of  a  contract,  the  constitutional  prohibition  being  that  "no 
State  shall  pass  any  law"  impairing  the  obligation  of  contracts. 9 

Suits  arising  under  disputes  as  to  public  land  laws  are  removable,  as 
where  the  plaintiff  denys  the  authority  of  the  land  department  to  issue  a 
certain  patent. n  Where,  however,  the  dispute  merely  involves  the  location 
of  boundary  lines  no  Federal  qiiestion  is  involved. 12  A  suit  arising  uiiil^r 
Federal  mining  laws  is  removableis  as  is  also  a  mandamus  proceeding  to 
compel  a  railroad  engaged  in  interstate  commerce  to  run  its  trains  to  a 
certain  station,  since  a  judgment  therein  may  impose  a  burden  on  interstate 
commerce. i<  A  bill  by  an  assignee  in  bankruptcy  to  set  aside  a  fraudulent 
conveyance  by  the  bankrupt,  is  removable  as  presenting  a  Federal  ques- 
tion.i5  Where  the  Federal  question  has  already  been  decided  by  the  Su- 
preme Court  it  ceases  to  be  ground  for  removable  A  suit  by  daughter  of 
deceased  homesteader  to  establish  her  right  against  widow  to  whom  patent 
issued  under  R.  S.  §  2291,  is  one  arising  under  Federal  laws  and  removable. it 
A  suit  on  a  marshal's  bond  involving  the  proper  construction  of  a  section 
of  the  Revised  Statutes  is  removable. i« 

[b]  —  suits  by  and  against  national  bank  receivers. 

A  suit  against  a  receiver  of  a  national  bank,  appointed  by  the  Comptroller 
of  Currency  is  one  arising  under  the  laws  of  the  United  States. 1  Hence  the 
circuit  court  has  jurisdiction  of  a  suit  against  such  a  receiver,  brought  to 
establish  the  claim  of  the  plaintiff  as  a  depositor  in  the  bank. 2  It  has 
jurisdiction  also  to  compel  the  receiver  to  pay  to  the  comjilainant  out  of  the 

6 Fitzgerald    v.    Missouri,    etc.    Rv.  i^People   v.   Rock   Island,   etc   Ry. 

45  Fed.  812.                                           ~  71    Fed.    753. 

vState  V.  Duluth,  etc.  R.  R.  87  Fed.  i^Woolridge  v.   McKenna,    8    Fed. 

497.  &-50. 

s Arkansas  v.   Kansas,   etc.    Co.   96  i*'''\fyTtle   v.   Nevada,   etc.   Ry.   137 

Fed    353  Fed.   193:  Arkansas  v.  Choctaw,  etc. 

!»Kentucky  V.  Louisville  Bridge  Co.  ^^'-  ^?^^^^*^-  ^^Jl"    .      ,„„  ^t    o    qqo 

4'>  Fed    241  I'^IcCune  v.  Lssig.  190  U.  S.  382, 

.A  ■\'^  ^l       o      1      1.0  TT    c    .n«  ''"'0  •  '^fl-  -•'^■'  26  Sup.  Ct.  Rep.  78. 

iiMitchell  V.  Smale,  140  U.  S.  406.  isLawrence   v.   Norton.   13  Fed.   1, 

35  L.  ed.  442,  11  Sup.  Ct.  Rep.  819.  4  ^Voods  383. 

12L0S  Angles,   etc.   Co.  v.  Hoff.   48  iSjjeckart   v.    German    Nat.    Bank, 

Fed.    .340.  85  Fed.  12  :  Sowles  v.  W  itters,  43  Fe:l. 

isFrank.   etc.   Co.   v.   Larimer,   etc.  700:  Cilliert  v.  Mr-Nulta.  96  Fed.  S3. 

Co.  8  Fed.  724.  2Bartlev  v.   Havden.   74   Fed.   9l4. 

.338 


Procedure] 


REMOVAL  OF    CAUSES. 


§   133   [dl 


funds  of  the  bank  in  the  receiver's  hands  a  certain  sum  on  the  grounds  that 
it  was  held  by  the  receiver  as  a  trust  fund  and  not  part  of  the  bank  prop- 
erty.s  A  receiver  of  a  national  bank  being  a  Federal  officer^  may,  under 
R.  S.  §  629,5  sue  in  the  Federal  courts  \\ithout  regard  to  the  parties  or  the 
amount  of  the  suit.  6 

[c]  —  suits  against  Federal  corporations. 

Suits  against  corporations  organized  under  acts  of  Congress  have  always 
been  held  to  be  suits  arising  under  the  laws  of  the  United  States,  and 
therefore  cognizable  by  the  circuit  courts  regardless  of  citizenship.s 
By  act  of  1S87,  however,  national  banks  for  jurisdictional  purposes  are  to 
be  deemed  citizens  of  the  States  in  which  they  are  located  and  hence, 
although  Federal  associations,  have  no  more  right  to  sue  in  a  circuit  court. 
than  a  citizen  of  the  particular  State.9  The  fact  that  a  State  corporation 
is  jointly  sued  with  a  Federal  corporation  does  not  change  the  nature  of 
the  suit.     It  is  one  arising  under  the  Federal  laws  and  hence  removable. lo 

[dj  —  suits  against  Federal  court  receivers. 

The  fact  that  a  receiver  is  appointed  by  a  Federal  court  does  not  make 
all  actions  .against  him  cases  arising  under  the  Constitution  and  laws  of  the 
United  States. 12  Accordingly  where  he  was  appointed  as  receiver  of  a  State 
corporation  in  the  exercise  of  the  general  jurisdiction  of  the  court,  and  not 
under  any  proA-ision  of  the  Federal  laws,  a  suit  against  him  does  not  per 
se,  present  a  Federal  question.! 3  While  some  cases  in  the  Supreme  Court 
go  further  than  thisi*  they  really  involved  receivers  of  Federal  corpor- 
ations.! 5     This  distinction  has  apparently  not  been  drawn  in  some  of  the 


2Hot  Springs,  etc.  School  District 
V.  National   Bank,  61   Fed.  417. 

^Frelinghuysen  v.  Baldwin.  12  Fed. 
.S95. 

sAnte.  §  124. 

sPrice  v.  Abbott.  17  Fed.  .506:  Arm- 
strong V.  Ettlesohn.  36  Fed.  209: 
Armstrong  v.  Trautman.  36  Fed.  276. 

sSee  Osborn  v.  United  States  Bank. 
9  Wheat.  819.  6  L.  ed.  223:  Pacific 
R.  R.  Removal  Cases.  115  U.  S.  1, 
20  L.  ed.  .3.19,  5  Sup.  Ct.  Rep.  1113; 
Oregon,  etc.  R.  Co.  v.  Skottowe.  162 
U.  S.  490.  40  L.  ed.  1049,  16  Sup. 
rt.  Pep.  869:  I^nion  Pac.  Rv.  v.  Har- 
ris. 158  I^  S.  326.  39  L.  ed.  1003, 
15  Sup.  Ct.  Rep.  843:  Texas,  etc.  R. 
Co.  V.  Cody.  166  U.  S.  606.  41  L.  ed. 
i0.'i2,  17  Sup.  Ct.  Rep.  703:  Texas  R. 
Co.  V.  Cox,  145  U.  S.  .>93.  36  L.  ed. 
829.  12  Sup.  Ct.  Rep.  905:  Lund  v. 
Chicago,  etc.  R.  Co.  78  Fed.  .385; 
United  States  Freehold,  etc.  Co.  v. 
f^allegos.  89  Fed.  769.  32  C.  C.  A. 
470:  Supreme  Lodge,  etc.  v.  ^^'ilson. 
66  Fed.  785,  14  C.  C.  A.  264. 


"Ante.  §  24.  Ex  parte  Jones.  164 
r.  S.  693.  41  L.  ed.  602.  17  Sup.  Ct. 
Rep.  222:  Wichita  Nat.  Bank  v. 
Smith.  72  Fed.  .569.  19  C.  C.  A.  42. 

10 Lund  V.  Chicago,  etc.  Ry.  78  Fed. 
387 :  ]\lartin  v.  St.  Louis,  etc.  Rv. 
1.34  Fed.  135. 

i2Cableman  v.  Peoria,  etc.  Ry.  179 
V.  S.  3.35.  45  L.  ed.  220,  21  Sup.  Ct. 
Rep.  171  :  Peoner  v.  Rogers.  128  Fed. 
988.  see  also.  Bausman  v.  Dixon.  173 
U.  S.  113.  43  L.  ed.  6.33.  19  Sup.  Ct. 
Rep.  316:  Pope  v.  Railway  Co.  173 
U.  S.  .573.  43  L.  ed.  814.  19  Sup.  Ct. 
Rep.  .500. 

isOableman  v.  Peoria,  etc.  Rv.  179 
U.  S.  340,  45  L.  ed.  220.  21  Sup.  Ct. 
Rep.  171. 

14 See  Railroad  Co.  v.  Cox.  145  U. 
S.  593.  .36  L.  ed.  829.  12  Sup.  Ct.  Rep. 
905:  Tennessee  v.  Union,  etc.  Bank, 
1.52  U.  S.  463.  .38  L.  ed.  515.  J 4  Sup. 
Ct.  Rep.  654. 

isMarrs  v.  Felton,  102  Fed.  776. 


339 


§   133   [e]  CIRCUIT    COURT— JURISDICTION.  [Code  Fed. 

circuit  courts,  which  have  held  that  all  suits  against  a  Federal  receiver  are 
suits  under  the  laws  of  the  United  States. 1 6  Where  a  suit  against  a  re- 
ceiver raises  a  Federal  question,  the  fact  that  other  parties  are  joined  as 
co-defendants  does  not  aflect  the  nature  of  the  suit  or  the  right  of  re- 
moval. 1 7 

[ej     Federal  question  to  appear  from  plaintiff's  statement. 

As  already  stated  the  general  rule  is  that  the  Federal  question  must  ap- 
pear by  the  plaintiff's  statement  of  his  own  claim,  and  unless  it  does  so 
appear  the  court  has  no  jurisdiction  either  original  or  on  removal.i  The 
failure  of  the  plaintiff  so  to  set  forth  a  Federal  question  is  not  remedied 
by  any  statement  in  the  petition  for  removal  or  in  the  subsequent  plead- 
ings.2  The  above  rule  has  been  followed  however,  only  since  the  amend- 
ment of  1887.  As  the  act  of  1875  originally  stood,  any  civil  suit  of  the 
requisite  amount  arising  under  the  Federal  laws  might  be  removed  by 
either  party.  Removal  cases,  while  this  provision  was  in  force,  held  that 
the  Federal  question  might  be  presented  by  the  answer  or  plea  of  the  de- 
fendant,3  the  test  being  whether  at  the  time  of  removal,  a  Federal  question 
appeared  on  the  record,  i  By  the  amending  act  of  1887,  only  such  Federal 
question  might  be  removed  as  the  circuit  court  iiad  original  jurisdiction 
over  "by  the  preceding  section,"  and  since  it  is  uniformly  held  that  the 
circuit  court  has  original  jurisdiction  over  a  suit  involving  a  Federal  ques- 
tion only  when  such  question  appears  in  the  plaintiff's  statement,  a  removal 
suit  must  also  show  jurisdiction  on  the  face  of  the  plaintiff's  statement.  5 
An  exception  has  been  made  where  plaintiff  has  been  guilty  of  bad  plead- 
ing and  failed  to  set  forth  facts  which  if  stated  would  give  the  Federal 
courts  jurisdiction. 6  Accordingly  failure  to  state  that  a  corporation  is  a 
Federal  corporation  will  not  destroy  the  right  of  removal  and  the  fact  can 
be  shown  in  the  petition  for  removal."  So  also  Federal  jurisdiction  can- 
not be  defeated  by  a  false  statement  in  plaintiff's  declaration,  that  the 
citizenship  of  defendant  corporation  is  State,  and  not  Federal. « 

[f]     Amount  in  controversy. 

The  above  provision   allows  the  removal  of  causes    arising    under    the 
Federal  Constitution  or  laws,  of  which  the  circuit  courts  are  given  juris- 

leLanders  v.  Felton,  73  Fed.  313;  sas,   111   U.   S.  4©2,  28  L.  ed.  487,  4 

Ray  V.  Peirce,  81  Fed.  881;  Pitkin  v.  Sup.  Ct.  Rep.  437;  Metoalf  v.  Water- 

Cmven,  91   Fed.  600.     But  see  Crable-  town.   128   U.   S.   589,  32  L.  ed.  544. 

man  v.  Peoria,  etc.  R.  Co.  101  Fed.  1,  9  Sup.  Ct.  Rep.  173. 

41  C.  C.  A.  160.  sTennessee  v.  Union,  etc.  Bank.  152 

i^Landers  v.  Felton.  73  Fed.  311.  U.  S.  461,  38  L.  ed.  514,  14  Sup.  Ct. 

lAnte,  §  129.[h]  Rep.   654. 

2Arkansas  v.  Kansas,  etc.  Co.  183  eSpeer  v.   Colbert,   200   U.   S.    130, 

V.  S.  188,  46  L.  ed.  Uo,  22  Sup.  Ct.  50  L.  ed.  403,  26  Sup.  a.  Rep.  201. 

Rep.   47;     Cella   v.   Brown,   144   Fed.  7  Scott   v.   Choctaw,  etc.   R.  R.   112 

742.  Fed.  182;  Winters  v.  Drake,  102  Fed. 

3 See  San  Mateo  v.  Railroad  Co.  13  545. 

Fed.  145:  Van  Allen  v.  Atchison,  etc.  sTexas,  etc.  Rv.  v.  uody,  166  U.  S. 

R.  Co.  3  Fed.  545,  1  McCrary,  598.  606.  41  L.  ed.  1132,  17  oup.  Ct.  Rep. 

■JRailroad   Co.    v.    Mississippi,    102  703. 
U.  S.  140,  26  L.  ed.  98;  Ames  v.  Kan- 

340 


Procedure]  REMOVAL  OP   CAUSES.  §  134 

diction  "by  the  preceding  section."  That  section  requires  in  excess  ot 
two  thousand  dollars  to  be  involved,  lo  Hence  a  removal  to  the  Federal 
court  is  not  allowed  in  a  case  arising  under  the  Federal  Constitution  or 
laws,  unless  the  amount  in  dispute  exceeds  two  thousand  dollars.n  Where, 
however,  a  suit  is  merely  ancillary  to  one  in  the  Federal  court,  it  may  be 
removed  regardless  of  the  amount  in  controversy.! 2  A  receiver  appointed 
by  a  Federal  court,  when  authorized  to  defend  in  a  suit  affecting  his  trust, 
may  remove  the  case  regardless  of  the  amount  on  the  ground  that  3uch> 
suit  is  ancillary.  13 

[g]     May  be  removed  by  defendant  or  defendants. 

As  originally  enacted  in  1875  the  above  provision  gave  either  party  the 
right  to  remove  on  the  ground  that  a  Federal  question  was  raised.  This 
right  is  now,  however,  limited  in  terms  to  the  defendant  or  defendants,!  ^ 
and  the  rule  is  well  established  that  all  such  defendants  must  join  in  the 
petition,  where  the  removal  is  sought  because  of  a  Federal  question.! 6 
The  rule  has  been  applied  where  a  State  corporation  and  a  Federal  corpora- 
tion are  jointly  sued!'?  and  in  the  case  of  a  joint  suit  against  a  railroad- 
and  its  receiver.!  8 

§  134.     Removal  of  causes  where  United  States  are  parties,  di- 
verse   citizenship,    or    land    grants    from    different 
States. 
Any  other  suit  of  a  civil  nature,  at  law  or  in  equity,  of  which  the 
circuit  courts  of  the  United  States  are  given  jurisdiction  hy  the 
preceding  section   [i.  e.,  causes  where  United  States  are  plaintiffs 
or  petitioners  or  where  diverse  citizenship  exists  or  where  parties 
claim  under  land  grants  from  different  States]  ,21  and  which  are 
now  pending,  or  which  may  hereafter  be  brought,  in  any  State  court, 
may  be  removed  into  the  circuit  court  of  the  United  States  for  the 
proper  district  by  the  defendant  or  defendants  therein.^^^'^''^  i>eing 
non-residents  of  that  State. ^'^ 

Part  of  §  2,  act  :Mar.  3,  1875,  as  amended  Mar.  3,  1887,  c.  373.  24  Stat. 
552,  and  corrected  Aug.  13,  1888,  c.  860,  25  Stat.  433,  U.  S.  Comp. 
Stat.  509. 

lOAnte,  §  129.[(i]  S.  335.  45  L.  e<l.  220.  21  Sup.  Ct.  Rep. 

iiHallam    v.   Tillin/jhast.    75   Fed.  171:   Railroad  Co.  v.  Martin.  178  U. 

849;    Jolmson   v.   Wells,    Fargo,   etc.  S.   245,  44   L.  ed.   1055.   20   Sup.   Ct. 

Co.  91   Fed.  I.  Rep.    854;    Miller   v.    Le   Mars.    etc. 

!2See  Carpenter  v.  Northern  Pac.  Bank,    116    Fed.    553;    German,    etc. 

R.  Co.  75  Fed.  850.     See  ante,  §  3.  Soc.  v.   Dormitzer,   116   Fed.   473,   53 

!3See    Hallam    v.    Tillinghast,   76  C.   C.  A.   639;     Martin   v.   St.   Louis, 

Fed.  849.  etc.  Ry.  134  Fed.  135. 

isCapIes  v.  Texas,  etc.  Ry.  67  Fed.        ! "Scott  v.  Choctaw,  etc.  R.  Co.  112 

11;  Tennessee  v.  Bank,  1.52  U.  S.  462,  Fed.  182. 
38  L.  ed.  513.  14  Sup.  Ct.  Rep.  654.        isYarnellv.  Felton.  104  Fed.  163. 

leCableman  v.  Railway  Co.  179  U.        21  Ante,  §§  130,  131. 

341 


§   134    [a]  CIRCUIT  COURT— JURISDICTION.  [Code  Fed. 

[a]     The  section  in  general,  and  cross-references. 

Proceedings  for  ascertaining;  whether  land  grants  of  different  states  are 
involved  are  provided  by  another  section  of  the  law.i  This  provision  super- 
seded R.  S.  §  639,  respecting  removal. 2  It  is  held  that  the  above  provision 
as  to  "any  suit  of  which  the  circuit  court  is  given  jurisdiction  by  the  pre- 
ceding section,"  applies  only  to  the  first  part  of  that  sections  and  not  to 
the  clause-4  relating  to  the  district  in  which  suit  may  be  brought. 5  Where 
a  suit  is  brought  by  several  plaintiffs,  residents  of  different  States,  against 
a  nonresident  defendant,  the  circuit  court  would  have  no  original  juris- 
diction, neither  the  plaintiff  nor  the  defendant  being  residents  of  the  dis- 
trict, but  on  I'emoval  would  have  jurisdiction  since  the  clause  does  not 
apply. 6  So  also  where  there  is  a  single  plaintiH'  and  defendant  if  diverse 
citizenship  exists,  removal  may  be  had  though  neither  party  is  a  resident 
of  the  district.'?  The  claiise  is,  however,  not  jurisdictional,  and  may  be 
waived. 8  Hence  even  if  it  did  apply  to  removal  suits,  the  fact  that  the 
■defendant  has  petitioned  for  a  removal  would  be  a  sufficient  waiver.;' 
Where,  however,  the  State  court  has  no  jurisdiction  over  the  subject- 
matter  of  the  action  on  the  merits  the  circuit  covirt  on  removal  is  likewise 
without  jurisdiction,  although  the  suit  may  be  between  citizens  of  different 
States  and  the  amount  in  dispute  sufficient  to  give  jurisdiction.! 0  But 
if  the  case  is  one  of  which  the  State  court  had  jurisdiction,  the  fact  that 
the  defense  made  after  removal  is  based  upon  a  statute  which  the  Fetleral 
courts  are  alone  empowered  to  administer,  and  not  cognizable  in  the  State 
courts,  will  not  defeat  the  circuit  court's  jurisdiction.il 

It  is  established  that  a  suit  cannot  be  removed  for  diverse  citizenship 
unless  the  requisite  citizenship  exists  both  at  the  time  when  the  suit  is 
begun  and  when  the  petition  for  removal  is  filed.  1*  So  where  there  Avas  no 
diversity  of  citizenship  at  the  commencement  of  the  suit,  the  substitution 
of  new  defendants  who  are  nonresidents  cannot  give  jurisdiction.!  5  An 
amendment  to  a  complaint  which  transforms  a  non -removable  cause  to  one 
which  is  removable,  gives  the  defendant  a  right  to  remove  if  he  acts 
promptly.  16  A  Federal  court  cannot  acquire  jurisdiction  by  removal  of 
jjroceedings  instituted  in  what  was  supposed  to  be  a  State  court,  but  which 

iPost.  §  1144.  ^Empire  M\n.  Co.  v.  Propeller,  etc. 

20'Conor  v.   Texas.  202  V.   S.   .501.  Co.  108  Fed.  902. 
.^0  L.  ed.  1120.  2(5  Sup.  Ct.  Kep.  72(5.         lOAuracher  v.   Omaha,   etc.   R.   Co. 

3See  ante,  §§  129.  1.30.  131.  10-  ^'"<^'l-  1-     ^^^  also.  Swift  v.  R.  R. 

4Mexican  Nat.  R.  Co.  v.  Davidson.  ^'°-  ;^^,  .^^f^;.^!!^-     „     „ 
157  r.  S.  201,  .39  L.  ed.  672.  15  Sup.        "T^ehigh  \  alley  R.   Co.  v.  Rainey. 

Ct.    Ro...    563;     Empire,    etc.    Co.     v.  ^"  ^ed    o98.  '„„.,,„,,,, 

Propeller,  etc.  Co.  108  Fed.  902.       '  ^    'f'^^r^',,  ^'""'f'  i^^  ^«,^-  ^'  "  "' 

5bee  post    ^  40-.  ^^     ^^^j.^     J  J-    ^,     j^     jjj^^    29    L.   ed. 

eSmpire  Man.  Co.  v.  Propeller,  etc.  ^g^    ,3  ^^^^    ^^    -^^^    qqc,.   Stevens  v. 

Co.    108   Fed.   902.  Nichols.  1.30  U.  S.  230,  32  L.  ed.  914, 

7Burch    v.    Southern    Pac.    R.    Co.  9  Sup.  C't.  Rep.  518. 
139  Fed.  3.50,  and  cases  cited.  isBurnham  v.  First  Nat.  Bank.  5.3 

sEmpire  Min.  Ck).  v.  Propeller,  etc.  Fed.  165,  3  C.  C.  A.  486. 
Co.  108  Fed.  902:  Burch  v.  Southern        isMyrtle   v.   Nevada,  etc.   Ry.   137 

Pac.  R.  Co.  139  ]  ed.  350.  Fed.   193. 

342 


i 


Procedure]  REMOVAL  OF  CAUSES.  §   1:54    [b] 

liad  no  legal  existence. i"  On  removal  for  diverse  citizenship  the  arranj,'*^- 
nient  of  parties  in  the  declaration  is  not  conclusive,  and  the  Federal  court 
may  ascertain  the  real  dispute  and  arrange  the  parties  according  to  their 
interests. IS  Thus  in  a  stockholder's  suit  to  enforce  a  right  of  the 
corporation,  the  latter  will  be  aligned  with  the  defendants  where  the  con- 
trolling officers  thereof  are  shown  to  be  opposed  to  the  object  sought. i? 
Parties  not  indispensable  may  be  dismissed  or  disregarded  if  their  presence 
would  oust  or  interfere  with  the  jurisdiction  of  the  court,  or  the  right  of 
removal.  2  0 

[bj     What  suits  removable. 

The  above  provision  gives  defendant  the  right  of  removal  of  "any  other 
suit  ...  of  which  the  circuit  courts  are  given  jurisdiction  by  the  pre- 
ceding section."  The  suits  referred  to  are  suits  in  which  the  United  States 
are  plaintiffs  or  petitioners,  suits  concerning  land  grants  of  different  States, 
and  cases  of  diverse  citizenship,  i  As  originally  enacted  the  second  section 
of  the  act  of  1875,  gave  either  party  the  right  to  remove  a  case  "'in  which 
the  United  States  shall  be  plaintiff  or  petitioner,  or  in  which  there  shall  be 
a  controversy  between  citizens  of  different  States,  or  a  controversy  between 
citizens  of  the  same  iState  claiming  land  under  grants  of  different  States, 
or  a  controversy  between  citizens  of  a  State  and  foreign  States,  citizens  or 
subjects."  Now,  however,  the  circuit  court's  jurisdiction  on  removal  is 
limited  to  such  suits  as  miglit  originally  have  been  brought  in  that  court. 2 
This  limitation  is  based  upon  those  elements  specified  as  essential  to 
jurisdiction  in  that  section  of  the  act  just  mentioned  and  not  upon  matters 
of  procedure.3  That  is,  if  a  suit  is  of  a  civil  nature  at  law  and  the  contro- 
versy is  between  citizens  of  different  States  and  the  amount  in  dispute 
exceeds  two  thousand  dollars,  it  is  removable  by  a  nonresident  defendant 
under  the  above  provision,  even  though  the  plaintiff  could  not  have  insti- 
tuted it  in  the  circuit  court  owing  to  a  limitation  of  a  State  statute 
limiting  that  particular  action  to  a  particular  State  court. ■*  The  method  of 
procedure  by  which  a  suit  is  brought  or  instituted  in  a  State  court  is  mere- 
ly formal  and  modal  and  nowise  affects  the  right  of  removal  hx  the  defend- 

iTOrowley  v.  Southern  Ry,  Co.  139        zoCella    v.   Brown.    136    Fed.    439: 

Fed.  851.  Same  v.  Same.   14-1  Fed.  742:    Boat- 

isCarson  v.  Hvatt.   118  U.   S.  279.  man's  Bank  v.  Fritzlen.  135  Fed.  650. 
30  L.  ed.  167,  6  Sup.  Ct.  Rep.  1050:  08  C.  C.  A.  288:   Axline  v.  Toledo,  etc. 
Evers  v.  Watson,   156   U.   S.  527.   39  R.  Co.  138  Fed.  160;  Croel  v.  United 
L.    ed.    521,    15    Sup.    Ct.   Rep.    430;  Electric  Co.    132   Fed.   254. 
Merchants,  etc.  Co.  v.  Insurance,  etc.        lAnte.   §§   130.   131. 
Co.  m\  U.  S.  385,  .38  L.  ed.  204.   14        28ee  ante.   §§129.  130,   131;   Rail- 
Sup.  Ct.  Rep.  367;   First  Nat.  Bank  road  Co.  v.  Davidson.  157  U.  S.  201. 
V.  Bridgeport  Trust  Co.  117  Fed.  969;  39  L.  ed.  672,  15  Sup.  Ct.  Rep.  -363; 
ITutton  V.  Bancroft,  etc.  Co.  77  Fed.  Wahl  v.  Franz.  100  Fed.  682.  40  C.  C. 
481;    Oakes    v.    Yonah    Land    Co.    89  A.    638.   49   L.R.A.  62:     Tennes.see  v. 
Fed.  243:    Bo:itmen's   Bank  v.   Fritz-  Bank,  152  U.  S.  462.  38  U.  ed.  511,  14 
leii.   135   Fed.   650.   68  C.   C.  A.   288;  Sup.  Ct.  Rep.  654. 
C.roel  V.  United  Electric  Co.  132  Fed.        sin  re  Stutsman  Co.  88  Fed.  341. 
254.  ^Union.  etc.  Rv.  v.  Chicago,  et<'.  R. 

i9Groel  V.  ITnited.  etc.  Co.  1.32  Fed.  Co.    119    Fed.    215.     See    aiso    In    re 

252.  Stutsman.   88  Fed.  341. 

343 


§   134   [c]  CIRCUIT   COURT— JURISDICTION.  [Code   Fed. 

ant. 5  A  proceeding  for  taking  land  of  a  non-resident  corporation,  by 
eminent  domain  is  a  removable  controversy,  the  amount  in  dispute  being 
sufficient. 6  A  mandamus  proceeding  under  the  laws  of  Iowa,  has  been  held 
not  a  removable  controversy. 7 

[c]  —  who  may  remove  for  diverse  citizenship. 

By  the  above  proAasion  it  is  clear  that  in  all  cases  where  there  is  no 
separable  controversy  the  right  of  removal  can  be  exercised  only  by  non- 
resident defendants. 8  All  defendants  must  be  non-residents. 9  Where  a 
petition  alleges  a  joint  cause  of  action  against  a  resident  and  a  non-resident 
defendant  the  cause  is  not  removable,  on  the  petition  of  either,  lo  Where 
the  petition  is  brought  by  the  non-resident  in  such  a  case,  it  is  not  re- 
movable even  though  it  is  averred  in  the  petition  that  the  resident  defend- 
ant has  no  interest  in  the  controversy  or  that  the  cause  of  action  is  not 
joint;  11  or  upon  an  allegation  that  such  defendant  was  joined  merely  for  the 
purpose  of  defeating  jurisdiction.  12  The  defendant  petitioning  for  a  re- 
moval may,  however,  allege  and  prove  that  the  local  defendant  was  joined 
for  the  fraudulent  purpose  of  defeating  jurisdiction.!  3  Where  such  alle- 
gations of  fraudulent  joinder  are  denied  the  burden  of  proof  lies  with  the 
defendant.!  4 

While,  by  the  terms  of  the  provision  the  defendant  must  be  a  non-resi- 
dent, mere  temporary  residence  in  the  State  where  the  suit  is  brought  will 
not  defeat  his  right  of  removal.is  The  citizenship  and  residence  of  a 
domestic  corporation,  within  the  meaning  of  this  provision,  are  in  the  State 
of  its  incorporation,  although  it  may  be  organized  chiefly  for  the  purpose  of 
doing  business  in  other  States. 1 6  A  foreign  corporation  is  a  citizen  and 
resident  of  the  place  of  its  incorporation  and  does  not  become  a  resi- 
dent of  a  State  by  doing  business  and  having  an  office  therein.17  Where  a 
resident  defendant  is  made  party  by  amendment  of  the  complaint  the 
right  of  removal  does  not  exist,  although  prior  to  the  amendment  the  other 
defendant  might  have  removed. is 

sTerre  Haute  v.  Evansville  R.  Co.  lin,  132  U.  S.  601,  33  L.  ed.  476,  10 

106  Fed.  548.     See  also,  Kirbv  v.  Chi-  Sup.  Ct.  Rep.  203 ;  Union,  etc.  Ry.  v. 

cago,  etc.  R.  Co.  106  Fed.  557.  Chicago,  etc.  Ry.  119  Fed.  211;  Kelly 

sMadiisonville.  etc.  Co.  v.  St.  Ber-  v.  Chicago,  etc.  R.  Co.  122  Fed.  286. 

nard.  etc.  Co.  196  U.  S.  239,  49  L.  ed.  i^Kansas.  etc.  Ry.  v.  Herman,  187 

462,    25    Sup.    Ct.    Rep.    251.  U.   S.   69,  47  L.  ed.  76,  23   Sup.   Ct. 

7Mystic  M.  Co.  v.  Chicago,  etc.  Ry.  Rep.  24. 

132  Fed.  289.  isChiatovich  v.Hanchett,  78  Fed.  193. 

sParkinson  v.  Barr,  105  Fed.  81.  isBaughman  v.  Waterworks  Co.  46 

SMeCabe  v.  Maysville,  112  Kv.  861,  Fed.  4.     Fales  v.  Railroad  Co.  32  Fed. 

66  S.  W.  1054.                               ■  675;   Purcell  v.  British  Land  Co.  42 

loAppel,   etc.  Co.   v.   Baggott,    132  Fed.  467;    Galveston,  etc  Railroad  Co. 

Fed.  1005.  V.  Gonzales,  151  U.  S.  501,  38  L.  ed. 

iiLouisi\'ille.  etc.  R.  R.  v.  Wange-  248.  14  Sup.  Ct.  Rep.  403. 

lin,  132  U.  S.  601,  33  L.  ed.  476.  10  iTPuvcell   v.   British   Land   Co.   42 

Sup.  Ct.  Rep.  203.  Fed.  407,  note  to  Eddy  v.  Casas,  118 

isKeller   v.   Kansas   City    etc.    R.  Fed.  .364. 

Co.  135  Fed.  202.  ]  sMerchants,  etc.  Bank  v.  Thomp- 

isLouisville,  etc.  R.  R.  v.  Wange-  son,  4  Fed.  878. 

344 


■ 


Procedure]  REMOVAL  OF  CAUSES.  §   134   [f] 

[d] — all  defendants  must  join  in  petition. 

Where  the  case  does  not  present  a  separable  controversy  all  the  defend- 
ants must  join  in  the  petition  for  removal. i  If  the  parties  have  been  re- 
arranged, all  those  whose  interests  are  really  those  of  the  defendants  must 
join. 2  Removal  is  defeated  where  one  of  the  defendants  allows  his  right  to 
elapse  by  failing  to  take  advantage  of  it  within  the  required  time.3 

[e]  —  diversity  of  citizenship  how  to  appear. 

Where  removal  is  sought  solely  for  diverse  citizenship,  it  is  not  neces- 
sary that  the  diverse  citizenship  appear  in  the  plaintiff's  complaint. 5  The 
rule  is  that  it  must  appear  upon  the  record,  either  upon  the  petition  for  re- 
moval or  upon  the  other  pleadings.s  and  unless  it  so  appears  the  State 
court  may  proceed  with  the  case."  A  statement  in  a  policy  of  insurance 
made  a  part  of  the  record  by  the  pleading,  may  be  referred  to  for  facts 
necessary  to  give  the  right  to  removal. 8  The  diverse  citizenship  of  the 
parties  must,  however,  appear  affirmatively. 9  Allegations  in  the  petition 
for  removal  which  have  been  deemed  sufficient  to  show  diversity  of  citizen- 
ship are  considered  in  a  following  note. 

[f  ]  —  amount  in  controversy — counterclaim. 

Since  suits  involving  diverse  citizenship  are  originally  cognizable  in  the 
Federal  court  only  when  the  amount  in  controversy  exclusive  of  interest 
and  costs  exceeds  two  thousand  dollars,ii  removal  of  such  suits  under  the 
above  provision  cannot  be  allowed  except  when  that  amount  is  involved.!  2 
The  amount  must  be  exclusive  of  interest  and  where  the  principal  is  less 
than  the  jurisdictional  amount  the  plaintiff  cannot,  by  adding  principal  and 
interest  in  the  amount  prayed  for,  obtain  removal. 1 3  Where  the  amount 
claimed'  in  the  plaintiff's  complaint  and  which  he  is  entitled  to  recover  if 
the  allegations  are  true,  is  sufficient  to  give  jurisdiction,  it  cannot  be  de- 
feated after  removal  by  the  plaintiff  changing  his  position  with  respect  to 
the  amount  claimed. i<  Thus,  jurisdiction  cannot  be  defeated  by  a  conces- 
sion by  the  plaintiff  that  the  amount  he  claimed  was  less  than  that  which 
he  stated  in  the  pleadings. is    But  where  before  removal  plaintiff's  pleading 

1  Miller  v.  Clifford,  133  Fed.  886,  67  7 Phoenix  Ins.  Co.  v.  Peehner,  95  U. 

C.  C.  A.  .52;    Chicago  Railwav  Co.  v.  S.  183.  24  L.  ed.  427. 

Martin,  178  U.  S.  248,  44  L.  ed.  1055,  sRobertson  v.  Scottish,  etc.  Ins.  Co. 

20  Sup.  Ct.  Rep.  8.54;    Whitcomb  v.  68  Fed.   173. 

Smithson,   175   U.   S.   635,   44  L.   ed.  sDalton  v.   Ins.   Co.  118  Fed.  936. 

303.  20  Sup.  Ct.  Rep.  248;    Railroad  See  Pa-rkinson  v.  Barr,  105  Fed.  84. 

Co.  V.  Dixon,  179  U.  S.  140.  45  L.  ed.  nAnte.  §  131. 

121,  21   Sup.  Ct.  Rep.  67.  i2S-e  Gilson  v.  Mutual,  etc.  Ass'n. 

2Wilson  V.  Oswego  Twp.  151  U.  S.  129    Fed.    1003. 

03,   38   L.  ed.   70,    14   Sup.    Ct.   Rep.  isOilson  v.  Mutual,  etc.  Ass'n.  129 

259.  Fed.   1003. 

3 Abel  v.  Book.  120  Fed.  47.  i^Johnson  v.  Computing  Scale  Co. 

sYsleta  v.  Canda,  67   Fed.   6.  130  Fed.  339. 

«Phoenix    Ins.    Co.   v.   Peehner.   95  isHavAvard   v.    Xordberg.   85    Fed. 

U.  S.  183.  24  L.  ed.  427:   Bondurant  4.  29  C."  C.  A.  43S. 
V.  Watson,  103  U.  S.  286,  26  L.  ed.  450. 

345 


$   134    [g]  CIRCUIT    COURT— JURISDICTION.  [Code   Fed. 

lias    been  amended   reducing   the  claim  below   $2,000,   there   can    be   no   re- 
moval, is 

I'pon  the  question  whether  or  not  a  counterclaim  set  up  by  a  removing 
defendant  may  be  considered  in  determining  the  jurisdictional  amount, 
there  is  a  contiiet  of  authority,  some  cases  holding  that  it  may  be  con- 
sidered,!" and  others  that  it  may  not. is  The  latter  eases  rest  their  de- 
cisions on  the  fact  that  the  removing  defendant  becomes  a  plaintiff  so  far 
as  the  counterclaim  is  concerned,  and  as  the  right  of  removal  does  not 
exist  in  favor  of  the  plaintiff  there  can  be  no  removal. 1 9  Under  a  Utah 
statute  which  made  it  obligatory  on  defendant  to  set  up  his  counterclaim 
or  be  forever  barred  from  maintaining  an  action  on  it,  it  was  held  that 
the  amount  of  the  counterclaim  might  be  considered.2  0  The  point  was 
raised  in  a  recent  case  in  the  southern  district  of  Xew  York,  and  the  cause 
was  remanded  on  the  ground  that  a  doubt  existed  as  to  jurisdiction.! 
Where  the  party  removing  is  the  original  plaintiiY  and  not  the  defendant, 
it  is  held  that  he  becomes  the  defendant  as  regards  the  counterclaim  and 
if  a  nonresident,  and  the  counterclaim  is  sufficient  to  give  jurisdiction, 
removal  is  proper.  2  If  separate  suits  involving  less  than  $2,000  each  are 
l)rought,  no  right  of  removal  arises  when  they  are  consolidated  for  trial. s 

[gj  —  how  amount  in  controversy  to  appear. 

It  should  appear  either  in  the  removal  petition  or  the  other  pleadings, 
that  the  amount  in  dispute  was  sufficient  to  give  the  court  jurisdiction  at 
the  time  the  suit  was  commenced.  Hence  an  allegation  in  the  petition  that 
the  controversy  exceeded  the  jurisdictional  amount  at  the  time  of  removal 
is  insufficient. 4  The  fact  that  the  amount  was  not  alleged  in  plaintiff's 
pleadings  is  immaterial  if  it  sufficiently  appears  from  the  petition. 5  Where 
an  action  for  personal  injuries  is  commenced  by  service  of  summons  without 
a  complaint,  and  removed,  on  a  petition  alleging  that  the  amount  in  contro- 
versy is  sufficient  to  give  jxirisdiction,  remand  has  been  refused  because 
the  complaint  alleges  an  insufficient  amount.6  Such  a  ruling  however  de- 
prives the  plaintiff  of  his  right  to  elect  for  what  amount  of  damages  he 
will  sue. 

[h]     Averments  in  petition  for  removal — diverse  citizenship. 

Unless  otherwise  set  forth  in  the  record  the  petition  must  clearly  allege 
the  citizenship  of  each  party  to  the  suit,  an  allegation  of  diverse  citizen- 

leMaine  v.  Gilman,  11  Fed.  214.  2Price  v.  Ellis  &  Co.  129  Fed.  482: 

iTWalcott  V.  Watson.  46  Fed.  529;  Carson,    etc.    v.    Holtzclaw,    39    Fed. 

Clargson    v.   ]\Ianson,  4   Fed.   2.57,   18  578.    But  see  contra  Waco,  etc.  Co.  v. 

Blatchf.  44.3.  Stove   Co.   91   Fed.   289,   33   C.   C.  A. 

isBennett  v.  Devine.  45   Fed.   705:  511:    and   see   West   v.   Aurora    City. 

AIcKown  v.  Kansas,  etc.  Co.  105  Fed.  G  Wall.  139,  18  L.  ed.  819. 

ti57.  ■iStrasburger    v.    Beeoher.    44    Fed. 

isBennett  v.  Devine.  45   Fed.  705;  214. 

McKown  v.  Kansas,  etc.  Co.  105  Fed.  sBanisan  v.  Worcester,  30  Fed.  392. 

657.  sCoffin  v.  Philadelphia,  etc.  R.  Co. 

20Lee  v.   Ins.   Co.  74  Fed.  424.  118  Fed.  688. 

iCrane  Co.  v.  Cuanica,  132  Fed.  71.!. 

346 


J 


Prvt^eciuie]  RKMOVAI.  OF  CAUSES.  §   134   [i] 

ship  in  general  terms  Iteing  insufficient. »  Tlie  fact  that  there  arc  a  large 
number  of  parties  plaintifl"  or  defendant  does  not  take  the  case  out  of  tlie 
rule. 10  An  averment  of  residence  only  is  not  sufficient. n  Where  the 
parties  are  suing  in  their  representative  character  their  personal  citizen-' 
ship  must  be  alleged,i2  it  being  the  personal  citizenship  of  the  parties 
which  determines  the  right  to  removal. is  But  where  the  suit  is  by  an 
assignee  diversity  of  citizenship  must  be  alleged  not  ojily  between  the  as- 
signee and  the  defendant,  but  also  between  the  defendant  and  the  as- 
signor.14  since  diverse  citizenship  must  exist  not  only  at  the  time  of  the 
removal,  but  also  at  the  time  when  the  suit  was  commenced.is  The  fact 
of  diverse  citizenship  may  however  appear  either  from  the  petition  or  from 
the  other  parts  of  the  record. ig  Where  a  partneship  or  joint  stock  com- 
pany is  a  party,  the  petition  should  state  the  individual  names  and  citizen- 
ship of  the  firm  members.i'  Where  a  corporation  is  a  party  the  averment 
should  be  that  the  corporation  is  created  under  the  laws  of  the  particular 
State.!-  Such  an  averment  is  sufficient  since  a  corporation  is  a  citizen  of 
the  State  of  its  incorporation  only. 1 9  In  the  case  of  a  foreign  corporation 
an  averment  that  it  is  a  "company  duly  chartered  and  incorporated  under 
the  laws  of  Great  Britain"  is  sufficient. 20  But  an  averment  that  a  corpora- 
tion is  a  citizen  of  a  particular  S^ate  is  insufficient.! 

[ij non-residence  of  defendant. 

The  restriction  as  to  the  right  to  removal  based  on  the  residence  of  de- 
fendants is  clearly  jurisdictional  and  the  non-residence  of  the  defendant 
must  be  alleged  in  the  petition  or  in  other  parts  of  the  record. 2  AVhere  n 
suit  was  brought  in  Indiana,  an  allegation  in  the  petition  that  the  defend- 
ant "was  at  the  time  of  the  commencement  of  the  suit  and  still  is  a  citizen 
and  resident  of  the  State  of  Ohio,"  is  a  sufficient  allegation  of  his  nou- 
residence.3  An  averment  also  that  a  party  is  a  citizen  of  a  certain  State  is 
held  to  include  the  idea  of  residence  in  that  State  and  to  be  sufficient. -i 

sThompson   v.  Stalmann,   131    Fed.  isShattuck   v.    North    British,  etc. 

Sfl!);  .Tones  v.  Adams  Express  Co.  120  Co.  58  Fed.  609,  7  C.  C.  A.  386. 

Fed.    018:    Cameron    v.    Hodgps.    127  i^Adams     v.     Mav.     27    Fed.    907: 

r.  S.  322.   32  L.  ed.   132.  8   Sup.   Ct.  Chapman  v.  Barnev.'  129  V.  S.  682,  32 

Rep.  1154.     See  generally  post,  §  11 36,  L.  ed.  802,  9  Sup.  Ct.  Rep.  426.    ^ 

-et  seq.                                 "  isFrisbie  v.  Chesapeake,  etc.  R.  Co. 

lO.Tones  v.  Adams  Express  Co.  129  57  Fed.  3:   see  Mvers  v.   ^lurrav,  43 

Fod.  619.  Fed.  695.  11   L.R..\.  216. 

iiEverhart.   v.    Tluntsville   College,  isShaw   v.    ^Mining    Co.    145    U.    S. 

120  r.  S.   223.  30  L.  cd.  623.   7   Sup.  444,  .36  L.  ed.   769.   12  Sup.   Ct.  Rep. 

Ct.  Rep.  555;  Minnrd  v.  Goggnn,  121  935:    Soutiliorn    Pac.    R.    Co.   v.    Den- 

T'.  S.  253,  30  L.  ed.  914,  7  Sup.  Ct.  ton,  146  U.  S.  202.  36  L.  ed.  943,  13 

Rep.   874:    Southwestern,   etc.   Co.   v.  Sup.  Ct.  Rep.  44. 

Robinson.  48  Fed.  769.  1  C.  C.  A.  91.  2  0Robertson  v.  Scottish  Union,  etc. 

l2Amory   v.   Amory.  95  U.   S.   187,  Co.  68  Fed.  173. 

24  L.  ed.  428;  Brisoriden  v.  Ch;vmber-  iLafavette  Insurance  Co.  v.  French, 

hiin.  53  Fed.  310.  18  How.   404.   15  L.   ed.   451;    Muller 

"Wilson  V.  Smitli.  66  Fed.  82.  v.  Dows,  94  U.  S.  444,  24  L.  ed.  207. 

i^Murphv  V.  Pavette,  etc.  Gold  Co.  2Fife  v.  Whittell.  102  Fed.  539. 

•98  Fed.  321.             "  sZebert  v.  Hunt,  108  Fed.  449. 

i5Sui)rii.  [a]  ! Myers    v.    Murray.    43    Fed.    695, 

347 


I   135    [a]  CIRCUIT  COURT— JURISDICTION.  [Code   Fed. 

Where  the  petitioning  defendant  is  a  corporation,  an  allegation  that  it  was- 
created  under  the  laws  of  a  State  other  than  that  in  which  the  suit  i» 
brought  is  a  sufficient  allegation  of  non-residence,5  since  a  corporation  can- 
not have  a  residence  other  than  that  of  the  State  of  its  incorporation  ex- 
cept by  a  positive  and  affirmative  act  of  creation  and  adoption  by  another 
State. 6  So  it  is  held  that  a  defendant  being  a  foreign  corporation  is  pre- 
sumed to  be  a  resident  of  the  country  where  it  was  created,  and  non- 
residence  being  presumed  and  nothing  appearing  to  dispute  the  same,  it 
need  not  be  alleged  in  the  petition.^ .  Where  an  alien  is  defendant  there 
should  be  an  allegation  of  non-residence.8 

§  135.     Removal  of  separable  controversies. 

When  in  any  suit  mentioned  in  this  sectional  there  shall  be  a  con- 
troversy which  is  wholly  between  citizens  of  different  States,  and 
which  can  be  fully  determined  as  between  them,^'^^"^^^  then  either 
one  or  more  of  the  defendants  actually  interested  in  such  con- 
troversy may  remove  said  suit  into  the  circuit  court  of  the  United 
States  for  the  proper  district. '^^^''^'^ 

Part  of  §  2,  act  Mar.  3,  1875,  c.  137,  18  Stat.  470,  as  amended  act  Mar. 

3,  1887,  c.  373,  24  Stat.  552,  and  corrected  act  Aug.  13,  1888,  c.  866,  25 

Stat.  433,  U.  S.  Comp.  Stat.  1901,  p.  509. 

[a]     History  of  provision. 

The  removal  of  separable  controversies  was  first  provided  for  by  an  act 
of  July  27,  1866.12  That  act  gave  the  right  of  removal  to  a  defendant, 
citizen  of  a  State  other  than  that  in  which  the  suit  was  brought;  and  was 
carried  into  the  Revised  Statutes.is  By  the  act  of  1875  the  right  of  re- 
moval in  eases  of  separable  controversies  was  extended  to  "one  or  more 
of  the  plaintiffs  or  defendants,"  and  did  not  restrict  the  right  to  the  party 
or  parties  who  were  non-residents  of  the  State  in  which  suit  was  brought. 
The  present  law  restricts  the  right  of  removal  to  the  "defendant  or  defend- 
ants."i<  While  the  provision  does  not  expressly  require  that  the  removing 
defendant  be  a  noa-resident  of  the  State  it  is  said  to  be  clearly  implied 

11  L.R.A.  216;  but  seeBarth  v.  Coler,  ^Howard   v.    Gold   Reels,   etc.    102 

60  Fed.  466,  9  C.  C.  A.  81.  Fed.  657. 

sMyers  v.  Murray,  43  Fed.  695,  11  sWalker  v.  O'Neill,  38  Fed.  374. 

L.R.A.    216;    Overman   Wheel    Co.   v.  HAnte.  §§  133,  134. 

Pope  Mfg.  Co.  46  Fed.  577;  Stiattuck  1214  Stat.  306,  c.  288. 

v.   North    Britis.h,    etc.   Co.   58   Fed.  13R.   S.   §   639,  sub.  sec.   2.     Ante, 

609.  7  C.  C.  A.  386.  §  124. 

sOverman  Wheel  Co.   v.  Pope,  etc.  i4Thruber  v.  Miller,  67  Fed.  376,  14 

Co.  46  Fed.  577.  0.  C.  A.  432. 

348 


Procedure]         REMOVAL  OF   SEPARABLE   CONTROVERSIES.  §   135   [b] 

from    the    coiitext,i»    making    the    provision  practically  identical  with  the 
■original  provision  of  the  act  of  1866,  just  stated.is 

[bj     Separable  controversies  in  general. 

If  there  is  but  a  single  controversy  in  a  cause  it  cannot  be  deemed 
separable  within  the  meaning  of  the  above  provision.  21  In  cases  of  diverse 
citizenship  the  right  of  removal  is  governed  by  the  preceding  code  section 
and  there  can  be  no  removal  unless  the  defendant  is  a  non-resident.22 
The  above  provision  governs  only  that  class  of  cases  where  there  are  two 
or  more  controversies  involved  in  the  same  suit.i  Misjoinder  of  parties 
cannot  justify  removal,  nor  misjoinder  of  several  causes  of  action.  The 
sole  question  is  whether  there  are  several  distinct  controversies  included  in 
a  single  suit,  whether  properlj'  so  included  or  not. 2  Where  there  is  but 
one  indivisible  controversy  between  the  plaintiffs  and  defendants,  as  in 
the  case  of  a  suit  for  a  partition,  one  of  several  defendants  cannot  remove.  3 
If  the  judgment  must  be  for  all  or  against  all  the  defendants  there  can  be 
no  separable  controversy.*  The  fact  that  it  is  necessary  to  prove  more 
facts  against  one  defendant  than  against  another  is  no  test  to  determine 
whether  or  not  there  is  a  separable  controversy.5 

.Separable  controversies  are  separate  and  distinct  causes  of  action  dis- 
closed by  the  record  in  a  single  suit,  upon  either  of  which  a  separate  suit 
could  have  been  maintained,  and  the  determination  of  neither  of  which  is 
essential  to  the  disposition  of  the  other. 6  The  case  must  be  one  capable  of 
being  separated  into  parts  so  that  in  one  of  the  parts  a  controversy  will 
be  presented  in  which  citizens  of  one  or  more  States  will  be  on  one  side 
and  citizens  of  other  States  on  the  other.'  Other  parties  to  the  suit  as 
it  was  begun,  not  indispensable  to  the  controversy,  will  not  be  considered  if 
their  presence  will  oust  the  jurisdiction  of  the  court. 8 

isThurber   v.   Miller,   67   Fed.   376,        5 Ames  v.  Chicago,  etc.  Ry.  Co.  39 

14  C.  C.  A.  432.  Fed.  881. 

Schofield  v.   Demorest,  40  Fed.   273;         eBoatman's  Bank   v.  Fritzleu,   135 

see  also  Vinal  v.  Continental  Const.  Fed.  663,  68  L.  ed.  288;  Geer  v.  Alkali 

Co,  34  Fed.  228;  but  see  Staubrough  AVorks,  190  U,  S.  432,  47  L,  ed.  1122, 

v.  Cook,  38   Fed.   369,   3  L.R.A.   400.  23    Sup,    Ct.    Rep.    807;     Fraser     v. 

See  Iowa,  etc.  Min.  Co.  v.  Bliss,  144  Jennison,  106  U.  S.  194;  27  L.  ed,  132, 

Fed.  446.  1  Sup,  Ct,  Rep.  171 ;   see  Torrence  v. 

leThurber  v.   Miller,  67   Fed.   379,  Shedd.  144  U.  S.  530,  36  L,  ed.  528,  12 

14  C.  C,  A.  43-2.  Sup.   Ct.   Rep.   727,   and   eases   cited; 

2iWestern     Umion     Tel.      Co.      v.  German  Savings,  etc.  Co.  v.  Dormetz- 

Brown,  32  Fed.  342;  Sharkev  v.  Port  er,   116  Fed.   473,   53  C.  C.    A.    639; 

Bla-kely  Mill.  Co.  92  Fed.  428.  Merchant's   Cotton    Press   Go.   v.   In- 

2 2 Western     Union      Tel.      Co.      v.  suranee  Co.  151   U.  S.  385,  38  L,  ed. 

Brown,  32  Fed.  342.  195,  14  Sup.  Ct.  Rep.  367. 

ildem.  TFraser  v.  .Jennison,  106  U.  S.  194, 

2Deere,    etc.    Co,    v,    Chicago,    etc,  27  L.  ed.  1.32,   1   Sup,  Ct,  Rep.   171; 

Ry.  85  Fed.  888.  Geer  v.  Mathieson,  etc.  Works.  190  U. 

■3See   Hanriek   v.   Hanrick.   153    U.  S.  4.32,  47  L.   ed.   1125,  23   Sup.   Ct 

S.  192,  38  L.  ed.  685,  14  Sup.  Ct.  Rep,  Rep.  807. 
835.  sCella  v.  Brown,   136  Fed.  441. 

estate  V.  Columbus,  etc.  R,  Co,  48 
Fed,  628. 

34S 


s  ]•' 


Lc] 


CirUTIT    COUIIT      .TUItlSDICTION. 


[Code    Ked.. 


1 


LcJ  —  where  cause  of  action  is  joint  and  several. 

Where  the  cause  of  action  is  joint  and  several  and  the  plaintiff  elects  to 
sue  two  or  more  defendants  jointly,  a  non-resident  defendant  being  so  sued, 
with  otJior  defendants,  co-residents  with  plaintiff,  cannot  remove  on 
the  ground  of  separable  controversy.! 4  Plaintiff  has  his  right  to  elect 
whether  his  suit  in  such  ca,se  shall  be  joint  or  several.  15  This  is  a  well- 
settled  rule,  and  it  is  also  established  that  whether  the  joint  action  is  in 
tortis  as  for  a  joint  fraud  or  joint  trespass,! 7  or  joint  negligence,! 8  or 
whether  it  is  on  a  contract, is  the  defendants  cannot  by  a  denial  of  joint 
liability  or  by  the  presentation  of  separate  defenses  resolve  the  joint  suit 
into  separable  controversies.  Separate  answer  or  defense  may  defeat  a 
joint  recovery,  but  it  cannot  deprive  the  plaintiff  of  his  right  to  prosecute 
his  suit  in  his  own  way. 20  In  a  tort  action  by  suing  less  than  all  the 
tort  feasors,  the  plaintiff'  has  not  elected  to  make  the  action  several  so  as 
to  entitle  one  or  more  of  the  defendants  to  remove.! 

[ccj  —  suit  against  corporation  and  its  employee. 

Under  this  principle  where  the  complaint  charges  concurrent  negligence 
jointly  against  a  corporation  such  as  a  railroad,  and  its  employees,  the 
controversy  is  not  separable; 2  and  if  a  railroad  and  its  section  foreman  arc 
jointly  sued  for  the  negligent  burning  of  plaintiff's  premises,  no  separable 
controversy  is  presented.^  The  joinder  of  an  employee  as  co-defendent  in 
damage  suits  against  railroad  and  other  corporations  for  the  purpose  of 
defeating  removal  proceedings,  has  been  a  common  expedient  in  recent 
years;   and  the  efforts  of  defendant  corporations  to  avoid  that  result  ha.s 


14 Ames  V.  Chicago,  etc.  R.  Co.  39 
Fed.  883;  Mitchell  \.  Snmle,  140  U. 
S.  409,  35  L.  ed.  443,  11  Sup.  Ct.  Rep. 
820;  Sweeney  v.  Grand  Island,  etc. 
R.  Co.  61  Fed.  5;  Kane  v.  Indianapo- 
lis, 82  Fed.  772;  Moore  v.  Los  An- 
geles, etc.  Co.  89  Fed.  78. 

i5Boatnian  Bank  v.  Fritzleu,  135 
Fed.  662.  68  C.  C.  A.  288:  Powers  v. 
Chesapeake.  et<-.  R.  Co.  169  U.  S.  96. 
42  L.  ed.  675,  18  Sup.  Ot.  Rep.  264; 
Brow2i  V.  Coxe,  75  Fed.  690 ;  Moore  v. 
Ix)s  Angeles,  etc.  Co.  89  Fed.  78; 
Southern  Rv.  v.  Oarson,  194  U.  S. 
1.36.  48  L.  ed.  907,  24  Sup.  Ct.  Rep. 
609. 

lePirie  v.  Tvedt.  115  U.  S.  43.  29 
L.  ed.  .331,  5  Sup.  Ct.  Rep.  1034.  1161 ; 
Powers  V.  Chesapeake,  etc.  R.  Co. 
169  U.  S.  9(5.  42  L.  ed.  673.  18  Sup. 
Ct.  Rep.  264:  Creagh  v.  Equitable, 
etc.  Assn.  88  Fed.  3:  Louisville,  etc. 
Rv.  V.  Wanffclin.  132  U.  S.  602.  33  L. 
eci.  476,  10  Sup.  Ct.  Rep.  204. 

iTBarth  v.  Coler.  60  Fed.  469.  9  C. 
C.  A.  S3:  Little  v.  Giles.  118  U.  S. 
601.  30  L.  ed.  260.  7  Sup.  Ct.  Rep.  .32. 


is  Chesapeake,  etc.  Ry.  v.  Dixon, 
179  U.  S.  131,  45  L.  ed.  121,  21  Sup. 
Ct.  Rep.  67:  Fogarty  v.  Southern 
Pac.  Co.  123  Fed.  974. 

isBrooks  V.  Clark,  119  U.  S.  502. 
30  L.  ed.  482,  7  Sup.  Ct.  Rep.  301: 
Putnam  v.  Ingraham,  114  LT.  S.  57.  29 
L.  ed.  65,  5  Sup.  Ct.  Rep.  746:  Louis- 
ville, etc.  R.  Co.  V.  Ide,  114  U.  S.  52, 
29  L.  ed.  63.  5  Sup.  Ct.  Rep.  735. 

2  0Torrence  v.  Shedd,  144  U.  S. 
527.  .36  L.  ed.  .528,  12  Sup.  Ct.  Rep. 
726;  Pirie  v.  Tvedt.  115  U.  S.  41,  29 
L.  ed.  331.  5  Sup.  Ct.  Rep.  1034. 

iFox  V.  IMackay,  60  Fed.  4. 

2 Chesapeake,  etc.  Ry.  v.  Dixon.  179 
V.  S.  139.  45  L.  ed.  125.  21  Sup.  (^t. 
R-ep.  67 ;  Dougherty  v.  Atchison,  etc. 
Rv.  Co.  126  Fed.  239;  Weaver  v. 
Northern,  etc.  Ry.  125  Fed.  155; 
Riser  V.  Southern  Ry.  116  Fed.  215. 
But  see  Mclntvre  v.  Southern  Rv. 
131  Fed.  985. 

3 Deere,  etc.  Co.  v.  Chicago,  etc. 
Rv.  85  Fed.  876. 


I 


350 


Procpdure]        REMOVAL     OF     SErARABLE      COXTROVERSIES.      §    135    Lclc) 

led  to  some  refinement  in  the  law  upon  this  point.  It  has  been  held  that  in 
the  absence  of  allegation  of  concurrent  negligence  in  both  master  and  servant 
the  defendant  corporation  may  reraoA'e.*  So  also  where  action  was  based  on 
a  State  statute  never  construed  to  create  a  joint  liability,  and  the  allegations 
were  as  to  negligent  acts  of  the  railroad  with  which  the  servant  had  no  con- 
cern, and  which  were  necessary  to  make  out  an  action  under  the  State  law,  a 
separable  controversy  was  held  to  be  disclosed.5  Likewise  where  a  rail- 
road leased  its  road  to  a  corporation  in  another  State  and  the  latter  corpora- 
tion was  guilty  of  negligence,  joint  liability  has  been  denied  and  removal 
allowed.6  Cases  in  which  both  railroad  and  employee  have  actually  been 
guilty  of  negligence  have  been  distinguished  from  cases  where  the  liability 
of  the  former  rests  merelj'  on  the  principle  of  respondeat  superior.  In  the 
latter  class  it  is  said  that  there  are  separable  controversies  and  a  right  of 
renioval.7  It  seems  questionable  whether  this  distinction  is  sustained  by 
the  decisions  of  the  Supreme   Court. « 

While  the  Federal  court  may  be  without  jurisdiction  on  removal  the 
action  being  joint,  yet  if  the  suit  is  dismissed  as  to  all  save  one  non- 
resident defendant,  the  Federal  court  may  then  take  jurisdiction. 9  De- 
fault by  one  of  several  defendants  jointly  sued  does  not  place  the  parties 
in  any  different  position  in  reference  to  removal^Vz  and  it  will  be  refused 
notwithstanding   sucli    default.! o 

Lcccj  —  sham  joinder  of  co-citizen  defendant. 

Some  cases  have  given  consideration  to  the  claim  of  a  non-resident  de- 
fendant that  the  joinder  of  the  domestic  defendant  was  a  sham  and  for 
the  sole  purpose  of  defeating  its  right  of  removal.ioyz  The  general  question 
of  devices  to  secure  or  defeat  Federal  jurisdiction  has  already  been  con- 
sidered.! i  When  the  sham  is  obvious  removal  has  been  allowed  notwith- 
standing such  joinder,i2  but  if  there  is  any  ground  upon  which  the  joinder 
of  the  domestic  defendant  may  be  justified,  allegations  of  sham  cannot  be 
allowed  to  prevail. is 

^Sessions  v.  Southern  Pac.  Co.  134  U.  S.  139.  48  L.  ed.  910.  24  Sup.  Ct. 

Fed.  315:  Helms  v.  Xorthem  Pac.  R.  Rep.  609. 
Co.  120  Fed.  389.  !i Powers  v.  Chesapeake,  etc.  Ry.  169 

sHenrv  v.  Illinois,  etc.  R.  Co.   132  ^^-  ^-   102.  42  L.  ed.  673,  18  Sup.  Ct. 

Fed.  715.  Rep.    264. 

sKelly  v.  Chicago,  etc.  R.  Co.   122  .„''iP"*"^'"  J"  T"?)-al>«"'-  \l^  ^^_^- 

Fed    '^86  ^^^  ^^  ^^-  ^-  *^-^-  5  ^"P-  ^*-  R^P-  ^'*^- 

-a~   A         1         17       .t   11        i      o  loWilson   V.    Oswefro   Twp.    l.'il    U. 

•See  Creagli  v.  Equitable,  etc.  Soc.  o    ,^,,    oo   r       /i    --    i  •  c         nt-    t> 

88   Fed.   1:    Helms   v.   Northern   Pac.  .^;.. '^•-  '^^   '^  "'^^   '''■  ^^  "'^P"  ^*-  ^^P" 

R.   Co     120   Fed.   389:    TTen.T   ^^   Tlli-  "  ^o.^Boatmen's     Bank     v.    Frit.leu, 

nois.  e  c.  R.  Co.  1_32  led.  /1 5;  Atarax  y.-   ,,^,j    ,,5^   gg  ^    ^    ^    288:  Keller 

V.  Railroad  to.   r2  ted.  63/;  Hukill  ^.    K,,„5a<,_  etc.   Rv.   135  Fed.  202. 
V.   Railroad    Co.    72    Fed.   745:    Mc-        11  Ante.  §  23.     " 
Intyre  v.  Southern  Ry.  131  Fed.  985.         1 2Boatmen''s  Bank  x.   Fritzlcu.  l.ij> 

8See  Railroad  Co.  v.  Dixon.  179  V.  Fed.  6.")0,  68  C.  C.  A.  288. 
S.  131,  45  L.  ed.  121.  21  Sup.  Ct.  Rep.        1  "Keller   v.   Kansas,    etc.    Ry.    13.> 

07;    Southern    R.  Co.  v.   Carson.    194  Fed.  202. 

351 


{   135    [d] 


CIRCUIT    COURT— JURISDICTION. 


[Code  Fed 


[d]  —  controversies  in  particular  cases. 

There  has  been  held  to  be  no  separable  controversy  in  the  following 
cases:  a  suit  for  an  undivided  half  interest  in  a  tract  of  land  held  by  two 
defendants;  13  a  suit  by  a  stockholder  against  a  corporation  and  its  lessee 
to  set  aside  lease; i*  or  to  cancel  shares  of  stock  or  determine  their  owner- 
ship; is  suits  against  a  stockholder  and  the  corporation  to  determine  the 
ownership  of  certain  stock;  16  a  suit  to  compel  specific  performance  of  con- 
tract for  the  sale  of  land,  brought  against  the  vendor  and  his  grantee  and 
the  latter's  grantee; it  a  suit  against  a  partnership  on  a  joint  contract;  is 
or  by  one  partner  for  the  settlement  of  partnership  affairs;  19  a  suit  to 
foreclose  a  mortgage  brought  against  several  mortgagors ;  2  o  a  suit  brought 
by  several  plaintiffs,  judgment  creditors  of  the  assignors,  to  set  aside  the 
assignments,  where  the  only  controverted  facts  were  those  tending  to  im- 
peach the  validity  of  the  assignments. i  The  failure  to  serve  one  of  the  de- 
fendants with  summons 2  or  the  default  of  a  defendants  does  not  make  the 
controversy  separable.  Where  one  of  the  defendants  enters  a  disclaimer  it 
is  said  that  such  disclaimer  does  not  leave  a  separable  controversy  as  to 
the  others.*  In  any  event,  there  is  no  separable  controversy  where  the 
disclaiming  defendant  still  retains  an  interest  in  the  eontroversy.5 

[e]  . suits  concerning  liens. 

Suits  by  a  judgment  creditor  to  have  his  debtor's  property  sold  after 
satisfying  prior  encumbrances,  the  holders  of  which  are  made  defendants, 
presents  no  separable  controversy,  justifying  removal,  between  the  plain- 
tiff and  such  holders. 7  But  a  suit  by  a  judgment  creditor  to  subject  land 
standing  in  name  of  the  debtor  to  payment  of  judgment  on  the  ground 
that  purchase  price  was  paid  by  debtor,  was  held  to  present  a  separable 
controversy.  8  A  cross  bill  brought  by  a  defendant  claiming  interest  in 
mortgaged  property  in  a  suit  by  the  mortgagee  to  foreclose,  presents 
merely  matters  of  defense  and  such  defendant  has  no  right  to  remove. 9    So 


isKnight  V.  Lumber  Co.  136  Fed. 
406,  69'  C.  C.  A.  248. 

i4East  Tennessee,  etc.  Ry.  v.  Gray- 
son, 119  U.  S.  244,  30  L.  ed.  382,  7 
Sup.  Ct.  Rep.  190. 

iBVinal  V.  Construction  Co.  35  Fed. 
673;  and  see  Crump  v.  Thurber,  115 
U.  S.  56,  29  L.  ed.  328,  5  Sup.  Ct. 
Rep.   1154. 

i6Rogers  x.  Van  NortwicK,  45  Fed. 
513. 

I'Smedley  v.  Smedley,  110  Fed. 
255. 

isStone  V.  South  Carolina,  117  U, 
S.  433,  29  L.  ed,  963,  6  Sup,  Ct.  Rep. 
799, 

isShainwald  v,  Lewis,  108  U,  S, 
158,  27  L.  ed,  691,  2  Sup,  Ct.  Rep. 
385 

20Ayres  v.  Wiswall,  112  U,  S,  187, 
28  L,  ed.  694,  5  Sup,  Ct.  Rep.  90. 

352 


iReinenian  v.  Ball,  33  Fed.  692. 

2Ame3  V.  Railway  Co.  39  Fed.  881 ; 
Patchen  v.  Hunter.  38  Fed.  51. 

3  Wilson  V.  Oswego  Twp.  151  U.  S. 
56,  38  L.  ed.  70,  14  Sup.  Ct.  Rep.  259. 
259. 

4Hax  V.  Caspar,  31  Fed.  500; 
Davies  v.  Wells,  134  Fed.  140. 

sWashington  v.  Columbus,  etc.  R. 
Co.  53  Fed.  673. 

T  Fidelity  Safe  Deposit  Co.  v.  Hunt- 
ington, 117  U.  S.  280,  29  L.  ed.  898, 
6  Sup.  Ct.  Rep.  733 ;  Graves  v.  Corbin, 
132  U.  S.  571,  33  L.  ed.  462,  10  Sup. 
Ct.  Rep.  196;  Torrenoe  v.  Shedd.  144 
U,  S,  527,  36  L,  ed,  528,  12  Sup.  Ct. 
Rep.    726. 

8  Kalamazoo  Wagon  Oo.  v.  Suavely, 
34  Fed.   823. 

9Maish  v.  Bird,  48  Fed.   607. 


Procedure]         REMOVAL  OF  SEPARABLE  CONTROVERSIES.  §    135   [h] 

where  a  bill  in  equity  is  brought  to  establish  a  resulting  trust  in  land  in 
possession  of  a  mortgagor,  a  non-resident  mortgagee  being  made  defendant, 
cannot  remove.! o  An  action  by  a  divorced  woman  against  the  heirs  of  her 
former  husband  to  subject  lands  of  which  he  died  seised  to  payment  of  her 
alimony  presents  no  separable  controversy  as  to  any  of  the  defendants; n 
No  separable  controversy  is  presented  as  to  a  nonresident  trustee  of  a 
railroad  who  intervenes  in  a  suit  in  the  nature  of  a  creditors  bill  brought 
against  the  railroad.12  Nor  is  such  controversy  presented  in  a  suit  brought 
to  enforce  a  mechanic's  lien  against  a  railroad  under  a  statute  requiring 
all  lien  holders  to  be  made  parties  and  their  claims  and  priorities  adju- 
dicated; is  nor  in  the  case  of  a  suit  brought  by  a  party  who  has  replevied 
goods  against  one  of  several  attaching  creditors;!*  nor  in  case  of  a  bill 
brought  by  a  creditor  to  compel  satisfaction  of  his  debt  out  of  property 
of  his  deceased  debtor,  in  the  hands  of  the  heirs,  since  all  the  heirs  are 
indispensable  parties  to  the  suit.  15 

[f ] proceedings  concerning  wills. 

An  action  to  establish  a  will  is  a  single  and  not  a  separable  controversy.!  7 
A  proceeding  brought  in  a  probate  court  to  contest  the  probate  of  a  will 
by  the  heirs  of  the  deceased  is  a  single  proceeding.! 8  So  also  a  bill  filed 
by  an  administrator  for  the  construction  of  a  will  as  against  two  bene- 
ficiaries, presents  no  separable  controversy  as  between  the  non-resident  bene- 
ficiary and  the  other  beneficiary  or  the  administrator.  1 9 

[g] suits  in  ejectment  and  to  quiet  title. 

One  of  several  defendants  charged  with  conspiracy  in  a  scheme  to  raise 
a  cloud  on  plaintiflf's  title  cannot  remove  on  ground  of  separable  controver- 
sy.! So  a  suit  brought  against  a  lessor  and  lessee  to  quiet  title  cannot 
be  removed  by  the  lessor  on  grounds  of  separable  controversy. 2  But  a 
suit  to  quiet  title  requiring  each  of  several  defendants  to  set  up  any 
claim  he  may  have,  has  been  held  to  present  a  separable  controversy.3 

[h]. condemnation  proceedings. 

A  controversy  between  property  owners  and  city  on  a  proceeding  for 
widening  the  city  streets  is  held  to  be  separable  as  each  defendant  owned 
a  particular  piece  of  land.  5  But  where  the  object  of  the  suit  is  to  con- 
demn a  single  lot  the  controversy  is  held  not  to  be  separable  although  the 

lOChester  v.  Chester,  7  Fed.  1.  !8Fraser    v.    Jennison.    106    U.    S. 

iiChapman  v.  Chapman.  28  Fed.  1.  191,   27  L.   ed.   131,   1   Sup.   Ct.  Rep. 

!2ln  re  Saa  Antonio  Ry.  44   Fed.  171. 

145.  !  9  Security    Co.   v.   Pratt,    64    Fed. 

isSweenev     v.     Railroad     Co.     61  405. 

Fed.  3.         '  !Little  v.  Ciles.  118  U.  S.  596,  30 

!  4 Temple  v.   Smith,  4  Fed.  392,  2  L.  ed.  269,  7  Sup  Ct.  Rep.  32. 

McCrarv.  226.  2Mil1er  v.  Sharp.  37  Fed.   161. 

!5Lyddy  v.  Gano.  26  Fed.  177.  sBates  v.  Carpenter,  98  Fed.  4,52; 

! "Anderson    v.    Appleton,    32    Fed.  see  also  Bacon  v.  Felt.  38   Fed.  870. 

■855.  5Pacific  Ry.  Removal  Cases,  115  U. 
Fed.  Proc— 23.                                 353 


S   1 :'..-.    |i| 


riit(  1  IT  contT— .Tritismc'j'ioN. 


[  ("ode   Fed. 


two  (Icl'oiKhnits  (iwii  distinct  interests. e  A  eontrovcrsy  holws-en  a  state 
and  a  noneiti/en  owner  in  a  condenination  proteodiiig  in  \vhii'li  tlie  resi- 
dent lessee  of  the  owner  is  made  eodefendant  is  separable  for  removal  pur- 
]ioses.T  A  proceedini;-  for  the  establishment  and  construction  of  a  drain  in 
which  the  main  (|uestion  is  the  right  of  the  petitioners  to  establish  such 
drain  presents  a  ^sin^i•le  and  entire  controversy. >>  Railroad  cDndemnation 
proceedings  aie  separable  as  to  eacli  separate  owner.!* 

[i]     Separable  controversy,  how  to  appear. 

Whether  an  action  involves  a  separable  controversy  must  be  determined 
by  the  allegations  in  the  plaintifl[''s  pleadings  at  the  time  when  the  peti- 
tion for  removal  is  filed, lo  and  not  by  the  allegations  in  the  petition, ^i 
or  the  subsequent  proceedings  in  the  circuit  court. 12  Hence  the  removal 
of  a  cause  cannot  be  had  on  the  ground  that  facts  may  be  developed  at  the 
trial  which  may  exculpate  the  defendant,!  s  matters  of  defense  not  being 
available  as  a  ground  for  removal. n  An  exception  to  this  rule  exists, 
however,  where  the  petitioner  both  alleges  and  proves  that  the  defendants 
were  wrongfully  made  joint  defendants  for  the  purpose  of  pieventing  a 
removal  to  the  Federal  court. is  To  establish  this  it  must  appear  not  only 
that  they  were  joined  to  defeat  jurisdiction  but  that  no  cause  of  action 
is  asserted  against  them,  or  that  they  are  in  law  improperly  joined,  or  that 
the  averments  of  fact  on  which  the  joint  liability  is  asserted,  are  so  pal- 
pably untrue  or  unfounded  as  to  make  it  improbable  that  the  plaintiflf 
could  have  inserted  them  in  good  faith. 1 6  In  determining  whether  the 
controversy  is  separable  so  as  to  allow  removal,  the  allegations  in  the 
complaint  are  considered  as  confessed. i' 

[j]     Petition  for  removal,  what  to  contain. 

The  petition  for  removal  must  specify  the  separate  controversy  and 
claim  the  right  of  removal  on  that  ground,  and  show  that  the  suit  is 
wholly  between    citizens  of  different   States,  and  that  it  can  be   fully  de- 


S.  23.  -20  L.  ed.  310,  .5  Sup.  Ct.  Eep. 
1113. 

sBellaire  v.  Baltimore,  etc.  Ev.  146 
IT.  S.  119,  36  L.  ed.  911,  13  Sup.  Ct. 
Rep.  16.  But  see  Northern  Pac. 
Terminal  Co.  v.  Lowenberg,  18  Fed. 
339.  9  Sawy.  348. 

"Sugar  Creek,  etc.  Rv.  v.  McKell. 
75  Fed.  36. 

sin  re  Jarnecke  Ditch,  69  Fed.  161. 

!*Soutli  Dakota  Rv.  v.  Chicago,  etc. 
Ry.  141  Fed.  578,  73  C.  C.  A.  176. 

lOHarley  v.  Insurance  Co.  125  Fed. 
792;  Wilson  v.  Oswego  Twp.  151  IT. 
S.  65.  38  L.  ed.  74.  14  Sup.  Ct.  Rep. 
259;  Deere  v.  Chicago,  etc.  R.  Co.  85 
Fed.  876;  Cableman  v.  Peoria,  etc. 
R.  Co.  179  U.  S.  335.  45  L.  ed.  220, 
21  Sup.  Ct.  Rep.  171  :  Louisville,  etc. 
R.   Co.   V.   Wangelin,   132  U.   S.   601, 


3.54 


33  L.  ed.  474,  10  Sup.  a.  Rep.  203: 
Doremus  v.  Root,  94  Fed.  760. 

iiFogartv  v.  Southern  Pac.  Co. 
123  Feu.  973. 

12  Wilson  v.  Oswego  Twp.  151  U.  8. 
65,  38  L.  ed.  74.  14  Sup.  Ct.  Rep. 
259. 

13 Ward  V.  Franklin.  110  Fed.  794 

i4Riser  V.  Southern  Rv.  116  Fed. 
216. 

isBryce  v.  Southern  Ry.  122  Fed. 
710:  see  also  Prince  v.  Illinois,  etc. 
R.  Co.  98  Fed.  2;  Railroad  Co.  v. 
Wangelin.  132  U.  S.  599.  33  L.  ed. 
475.  10  Sup.  Ct.  Rep.  203. 

i6H)ikill  V.  Mavsville.  etc.  R.  Co.  72 
Fed.  750. 

iTEast  Tennessee,  etc.  R.  R.  v. 
Gravson.  119  U.  S.  244,  30  L.  ed.  382, 
7  Sup.  Ct.  Rep.  190. 


i 


Prote;iure]  HEMOVAL  ON   GROUND  OF  PREJUDICE.  §    VM 

tenniiied  as  between  them.i  Where  it  fails  to  allege  such  jurisdictional 
facts  it  i';  insufficient. 2  So  it  is  said  that  the  averment  of  a  separable 
controversy  in  the  pleadings  cannot  make  up  for  the  failure  to  allege  it 
in  the  petition. s  The  omission  in  the  petition  of  the  averment  of  a  sepa- 
rable controversy  can  be  amended  only  in  the  State  court.* 

[kj     Who  may  remove. 

The  controversy  must  be  wholly  between  citizens  of  different  States: 6 
;ind  the  suit  is  not  removable  if  a  necessary  party  defendant  in  a  sepa- 
rable controversy  is  a  citizen  of  the  same  State  as  the  plaintiff."  More- 
over, since  the  controversy  must  be  between  citizens,  an  alien  defendant  is 
not  given  the  power  to  remove  a  separable  controversy  in  a  suit  by  a 
State  citizen, 8  nor  is  a  citizen  given  the  power  to  remove  where  the  suit 
is  brought  by  an  alien. 9  The  right  is  confined  to  parties  "'actually  inter- 
ested in  the  controversy"  and  no  other  party  can  apply.io  An  interveuor 
cannot  remove  where  the  real  questions  at  issue  are  between  the  original 
parties  and  the  intervenor  has  rights  only  as  he  may  be  subrogated  to 
those  of  the  defendant.!!  Nor  can  he  remove  where  he  appears  only  to 
protect  the  rights  of  the  original  defendant  and  claims  nothing  independent 
f  the  original  plaintiff  or  defendant. 12 

jlj     Whole  suit  removed. 

While   under   the   act    nt'    1S6G.  only  the   separable   controversy  could   be 
rc!noved,i4   there  is  nothing  in   the   act  of   1875  justifying  the  conclusion 
liat  Congress  intended  to  leave  any  part  of  the  suit  in  the  State  court: is 
md  where  a  suit  involves  a  separable  controversy  under  the  above  provi- 
sion the  suit  is  removable  in  its  entirety.  16 

>^  136.     Removal  on  ground  of  prejudice  or  local  influence. 

And  where  a  suit  is  now  ponding,  or  may  be  hereafter  broiiglit. 
in  anv  State  court,  in  which  there  is  a  controversy  between  a  citi- 


iSharkcv  v.  Mill  Co.  02  Fed.  425.  '"Rand  v.  \Yalker.   117   U.  S.  345, 

2Spp  Smith  v.  Horton,  7  Fed.  270.  20  L.  ed.  007.  6  Sup.  Ct.  Rep.  769; 

sGates.  etc.   Works  v.   Pepper,   98  Merchants,  etc.  Co.  v.  Insurance  Co. 

Fed.  451.  of  N.  a.  151  U.  S.  387.  38  L.  ed.  105.. 

<Winnemans  v.  Edging! on,  27  Fed.  14  Sup.  Ct.  Rep.  .367. 

326,  as  to  petition  for  removal   and  !!Chicago    v.    Ctage,    6    Biss.    472. 

procedure  generally.    See  post,  §  1136  Fed.  Cas.  No.  2.664. 

ct  set].  i2Bronson  v.  St.  Croix  Lumber  Co. 

elTvde  v.  Ruble,   104  U.  S.  407.  26  35  Fed.  634. 

L.  ed.  823.  14  14  Stat.  306.  c.  288. 

"Scoutt    v.   Ko<k,   73    Fed.    000.    20  1  sRarnev  v.  Latham,  103  U.  S.  213 : 

C  C.  A.  103.  20    L.    ed."514.      See   also    Brooks   v. 

sTracv  v.  Morel.  88  Fp<1.  801:  King  Clark,   119  U.  S.  512,  30   L,  ed.  482. 

v.  Cornell.   106  V.   S.   308,  21    L.  ed.  7   Sup.  Ct.  Rep.  301. 

61,  1    Sup.    Ct.   Rep.   312:    Woodrum  isSee   Hoge   v.   Canton    Tns.    ORice, 

v.  Clav.  33  Fed.  S07.  10.3  Fed.  513.  515:  Council  v.  Smiley, 

sCreagh    v.   Life    jus.    Co.    SS    Fed.  156  V.  S.  341.  30  L.  ed.  445.  15  Sup. 

'*:   Deakin  v.   Lea.   11    Bi>^s.    30.   Fed.  Ct.  Rep.  3.53. 
Cas.  No.  3,695. 


§  136  [a]  CIRCUIT  COURT— JURISDICTION.  [Code  Fed. 

zen  of  the  State  in  which  the  suit  is  brought  and  a  citizen  of  an- 
other State, ^^^"'^'^^  any  defendant,  being  such  citizen  of  another  State, 
may  remove  such  suit  into  the  circuit  court  of  the  United  States 
for  the  proper  district, '^''^  at  any  time  before  the  trial  thereof  J*^^  when 
it  shall  be  made  to  appear  to  said  circuit  court  that  from  prejudice 
or  local  influence  he  will  not  be  able  to  obtain  justice  in  such 
State  court, "^^^  or  in  any  other  State  court  to  which  the  said  de- 
fendant may,  under  the  laws  of  the  State,  have  the  right,  on 
account  of  such  prejudice  or  local  influence,  to  remove  said  cause  t^^' 
provided,  that  if  it  further  appear  that  said  suit  can  be  fully  and 
justly  determined  as  to  the  other  defendants  in  the  State  court, 
without  being  affected  by  such  prejudice  or  local  influence,  and  that 
no  party  to  the  suit  will  be  prejudiced  by  a  separation  of  the  parties, 
said  circuit  court  may  direct  the  suit  to  be  remanded,  so  far  as 
relates  to  such  other  defendants,  to  the  State  court,  to  be  proceeded 
with  therein. 

Part  of  §  2,  act  of  Mar.  3,  1875,  c.  137,  18  Stat.  470,  as  amended  act 
Mar.  3,  1887,  c.  373,  24  Stat.  552,  and  corrected  act  Aug.  13,  1888,  c. 
866,  25  Stat.  433,  U.  S.  Comp.  Stat.  1901,  p.  50&. 

[a]     In  general — history  of  provision. 

The  procedure  on  removal  for  prejudice  or  local  influence  is  fully  con- 
sidered in  a  following  section. i  Under  an  act  of  Mar.  2,  18672  which  first 
gave  the  right  of  removal  on  the  ground  of  prejudice  or  local  influence  the 
right  was  confined  to  "such  citizen  of  another  State  whether  he  be  plaintiff 
or  defendant."3  That  pi'ovision  was  substantially  re-enacted  in  the  Re- 
vised Statutes. 4  Nothing  was  contained  in  the  act  of  1875  as  it  stood  orig- 
inally, concerning  removal  on  the  ground  of  prejudice  or  local  infiuence, 
and  the  provision  of  the  Revised  Statutes  just  referred  to  remained  in 
force  until  the  act  of  1875  was  revised  and  corrected  in  1887-18885  as  set 
forth  above.  While  the  existing  provision  does  not  in  terms  set  forth  what 
suits  are  removable  for  prejudice  or  local  influence,  it  does  not  describe  a 
new  class  of  suits  but  only  specifies  a  distinct  ground  for  removing  one 
class  of  suits  previously  defined,  viz.,  that  class  in  which  there  is  a  con- 
troversy between  citizens  of  difi'erent  States. 6  And  as  the  controversy  in 
such  a  case  must  exceed  the  sum  or  value  of  two  thousand  dollars,'?  it  must 
likewise  do  so  where  removal  is  attempted  on  the  ground  of  prejudice  or 
local  infiuence. s     An  appeal  under  a  State  law  from  an  assessment  of  taxes 

iPost,  §  1143.  6Malone   v.   Richmond,   etc.   R.   R. 

214  Stat.  558,  c.  196.  35  Fed.  625;  Cochran  v.  Montgomery 

SThurber  v.  Miller,  67  Fed.  375,  14  Co.    199   U.   S.   271,    50    L.    ed.    187, 

C.  C.  A.  432.  26    Sup.    Ct.    Rep.    58.      See    In    re 

4R.  S.  §  639.  subsec.  3.  Cillev.  58  Fed.  980. 

5Fisk  V.  Henarie,  142  U.  S.  459.  35  7Ante.  §   134.[b] 

L.  ed.  1080.  12  Sup.  Ct.  Rep.  207.  sin    re    Pennsylvania    Co.    137    U. 

356 


Procedure]  REMOVAL  ON  GROUND  OF  PREJUDICE,  §   136    [c] 

to  a  "county  court"  sitting  without  judicial  powers  is  not  a  suit  within 
the  meaning  of  the  section. 9 

[b]  Citizenship  of  parties. 

Under  the  above  provision  the  plaintiff  must  be  a  citizen  of  the  State 
where  suit  is  brought.  Where  there  are  several  plaintiffs  each  one  must 
apparently  be  a  citizen  of  that  State.n  In  any  event  they  must  be 
citizens  of  the  State  if  they  are  all  jointly  concerned  in  the  cause  of  ac- 
tion against  the  defendant.  12  Since  citizenship  is  essential  the  presence 
of  an  alien  plaintiff  whether  sole,  or  one  of  several,  will  prevent  removal.  1 3 
So,  if  it  is  found  upon  an  arrangement  of  the  parties  according  to  the 
real  controversy,  that  aliens  and  citizens  of  the  same  State  as  the  de- 
fendants would  be  placed  in  the  position  of  plaintiflFs  there  can  be  no 
removal.  14  Xone  but  defendants  can  remove; is  and  no  removal  can  be 
had  for  prejudice  or  local  influence  by  a  defendan:.  where  a  co-defendant 
is  a  citizen  of  the  same  State  as  the  plaintiffs. is  The  diverse  citizenship 
necessary  to  jurisdiction,  must  exist  both  at  the  time  the  suit  is  commenced 
and  at  the  time  petition  for  removal  is  filed.i7 

[c]  Application  for  removal. 

Under  the  original  act  of  1867,  as  carried  into  the  Revised  Statutesi  a 
petition  for  removal  on  the  ground  of  prejudice  or  local  influence  was  ex- 
pressly required.  No  such  express  requirement  is  made  in  the  above  pro- 
vision, however,  which  simply  requires  that  the  prejudice  or  local  influence 
must  be  shown  to  the  circuit  court.  2  Such  fact  may  appear  by  oral 
testimony  or  afRdavits,3  but  the  court  should  be  legally  not  merely  moral- 
ly satisfied  as  to  the  truth  thereof.*  Legal  satisfaction  requires  some 
proof  suitable  to  the  nature  of  the  case.    The  amount  and  manner  of  the 

S.  454,  34  L.  ed.  740,  11  Sup.  Ct.  Rep.  number  of  cases  contra:  Whelan  v. 
143;  Todd  v.  Cleveland,  etc.  Rv.  65  New  York.  35  Fed.  849.  1  L.R.A.  65: 
Fed.  148,  12  C.  C.  A.  521;  City  of  Jackson,  etc.  Co.  v.  Pearson,  60  Fed. 
Detroit  v.  Detroit,  etc.  Ry.  54  Fed.  5.    113;  Hall  v.  Chattanooga,  etc.  Works. 

sUpshur  Co.  V.  Rich,  135  U.  S.  467,  48  Fed.  599;  Tacoma  v.  Wright,  84 
34  L.  ed.  196,  10  Supt.  Ct.  651.  Fed.  836;  Wilder  v.  Virginia,  etc.  Co. 

iiRike  V.  Floyd,  42  Fed.  247:  46  Fed.  676;  Boatmen's  Bank  v. 
Thouron  v.  East  Tenn.  etc.  R.  Co.  38  Fritzleu,  135  Fed.  650,  68  C.  C.  A. 
Fed.  678;  Wilder  v.  Virginia,  etc.  Co.  288;  Parker  v.  Vanderbilt.  136  Fed. 
46  Fed.  676.  246;    Haire  v.  Rome  R.   Co.   57   Fetl. 

i2Gann  v.  Northeastern  R.  Co.  57  321;  Holmes  v.  Southern  R.  Co.  125 
Fed.  417.  Fed.  301. 

isCohn  v.  Louisville,  etc.  R.  39  1 'Young  v.  Parker,  132  U.  S.  267, 
Fed.  227.  33  L.  ed.  352.  10  Sup.  Ct.  Rep.  75. 

KAdelbert  College  v.   Toledo,   etc.        iR.  S.  §  639,  subdiv.  3. 
R.  Co.  47  Fed.  836.  2 Short  v.  Chicago,  etc.  Ry.  Co.  33 

i5Tullock  V.  Webster  Co.  40  Fed.    Fed.  116. 
706.  3  Short    v.    Chicago,    etc.    Ry.    33 

isCochran  v.  Montgomerv  Co.   199    Fed.  116. 
U.  S.  272,  50  L.  ed.  IS'8,  2C  Sup.  Ct.        ^Ex  parte  Pensylvania  Co.  137  U. 
Rep.      58;      Anderson      v.      Bowers,    S.    457.   34   L.    ed.   741,   11    Sup.   Ct. 
43   Fed.   321:    Campbell   v.   Milliken.    Rep.  143;  Tacoma  v.  Wright.  84  Fed. 
119    Fed.    982.      There    have   been    a    838. 

357 


§   i:;»!    [d]  CIRCUIT  COi:UT— JUltlSDICTION.  [Code   i'pd. 

proof  required  must  be  left  to  the  discretion  of  tlic  court.!''  lender  the  act 
of  1807  the  affidavit  was  required  to  state  men  I y  that  the  jjarty  "lias 
reason  to  believe  and  does  ))elieve  that  lie  will  be  unable  to  obtain  jus- 
tice."6  But  under  tlie  present  act  an  ex  parte  affidavit  merely  alleoin*,'  tlie 
existence  of  local  prejudice  without  stating  any  facts  tending  to  show  it, 
lias  been  held  insufficient.'  On  the  other  hand  a  bare  statement  of  the  fact 
of  prejudice  in  the  language  of  the  statute  has  been  held  a  sufficient  prima 
facie  showing.'**  But  if  such  statement  is  made  on  information  and  be 
lief  only  it  is  insufficient. 9  Where,  however,  the  facts  supporting  a  state- 
ment on  information  and  belief  are  fully  set  forth  it  is  held  that  personal 
knowledge  is  not  necessary.! o  While  there  is  no  requirement  that  the 
application  be  made  by  petition,  that  is  the  usual  method  of  procedure. 
The  petition  should  distinctly  aver  the  prejudice  or  local  influence,  and  as 
a  consequence  thereof  the  inability  of  the  defendant  to  obtain  justice  in 
the  State  court. n  A  petition  and  affidavit  merely  alleging  that  the  de- 
fendant is  unable  to  obtain  justice  are  not  sufficient.!  2  Notice  to  the  op- 
posite party,  of  the  application  for  removal  while  not  required  is  perhaps 
the  better  practice.is  An  order  of  removal  by  the  circuit  court  is  neces- 
sary. Tlie  mere  finding  that  a  party  is  entitled  to  remove,  is  no  order 
and  does  not  work  a  removal. i< 

[dj     Removal  to  be  before  State  court  trial. 

Under  a  provision  of  the  act  of  1807  as  substantially  embodied  in  the 
Revised  Statutes,  the  petition  for  removal  was  required  to  be  filed  at 
any  time  fore  the  trial  or  final  hearing; is  and  a  cause  might  be  removed 
even  after  the  trial  court  had  granted  a  new  trial,  or  after  reversal  and 
remand  by  the  State  supreme  court.i'?  But  removal,  under  the  above 
provision,  may  be  had  "at  any  time  before  the  trial."  Tliis  means  before 
or  at  the  terra  at  which  the  cause  could  first  be  tried,  and  before  the 
trial  thereof. IS  The  right  of  removal  remains  up  to  the  time  of  the  first 
trial  on  the  merits. 1 9     A  hearing  on  a  special  demurrer  as  to  formal  de- 

5ln  re   Pensylvania  Co.   137   U.   S.        isAdelbert   College  v.   Toledo,   etc. 
454.  34  L.  ed. '741.  11   Sup.  Ct.  Rep.    R.  Co.  47  Fed.  830. 
143.  i-iPennsvlvania   Co.  v.  Bender,  148 

eSee  R.  S.  §  039.  subdiv.  3.  U.  S.  255/37  L.  ed.  441,  13  Sup.  Ct. 

TSchwenk   v.   Strang.   59  Fed.   211,    Rep.  591. 
8   C.   C.   A.   92.      See  also   INIalone  v.         16R.  S.  §  039.  subdiv.  3. 
Railroad  Co.  35  Fed.  025.  i^See   Fisk   v.   Henorie.    142   U.   S. 

sShort  v.  Railroad  Co.  34  P^ed.  227:  459,  35  L.  ed.  1080.  12  Sup.  Ct.  Rep. 
Franz  v.   Wahl,  81   Fed.   10.  207.  and  cases  cited. 

9Short  V.  Chicago,  etc.  Co.  33  Fed.  isMcDonnell  v.  Jordan,  178  U.  S. 
110:  Collins  v.  Campbell.  62  Fed.  238,  44  L.  ed.  1052,  20  Sup.  Ct.  Rep. 
851:  In  re  Pennsylvania  Co.  137  U.  880;  Fisk  v.  Henarie.  142  U.  S.  467, 
S.  457.  34  L.  ed.  741.  11  Sup.  Ct.  Rep.  35  L.  ed.  1082,  12  Sup.  a.  Rep.  207; 
143.  Thurber  v.  Miller,  67  Fed.  378,  14  C. 

loDetrolt  v.  Detroit,  etc.  R.  Co.  54  C.  A.  432.  But  see  Detroit  v.  De- 
Fe<l.  ].  troit,  etc.  R.  Co.  54  Fed.  11. 

iiColdiwortliv  V.  Chicago,  etc.  L.  isSee  Durkee  v.  Illinois,  etc.  R.  Co. 
Co.  38  Fed.  769.  81    Fed.    1  :    Huskins    v.    Cincinnati, 

i^Ellison  V.  Louisville,  etc.  R.  Co.  etc.  R.  Co.  37  Fed.  504,  3  L.R.A.  545. 
112  Fed.  805.  .50  C.  C.  A.  530. 

358 


rrocedure]  REMOVAL  OX  (inOT'XD  OF  PREJUDICK.  §   13G   [e] 

fects  does  not  prevent  removal, 20  altliouoh  it  is  liold  otlierwise  wliere 
the  hearing  is  on  a  demurrer  alleging  that  no  cause  of  action  is  stated. 1 
such  being  deemed  a  hearing  on  the  merits. 2  The  tiling  of  an  answer  is 
not  a  trial  within  the  meaning  of  the  provision; 3  nor  is  a  hearing  before 
a  board  of  arbitrators  under  a  compulsory  arbitration  law; 4  nor  a  hear- 
ing before  commissioners  the  result  of  which  is  subject  to  affirmance  or 
rejection.5  Xo  mere  attempt  of  one  party  to  get  himself  upon  the  record 
as  having  commenced  the  trial  will  be  enough  to  cut  oflf  removal.6  Hence 
an  application  for  removal  is  in  time  although  made  during  the  trial  of 
an  interlocutory  application,  in  which  the  plaintiff  offers  evidence  on  the 
merits."  The  trial  on  the  merits  having  once  begun  an  application  for  re- 
moval comes  too  late,  even  though  a  mistrial  results. s  The  time  of  the 
application,  however,  is  not  jurisdictional  and  may  be  waived  by  the  par- 
ties.9 

[e]     The  showing  of  prejudice  or  local  influence. 

Prejudice  or  local  influence  may  relate  to  the  person  of  the  litigant  or 
the  subject  matter  of  the  litigation.  In  either  case  there  must  exist  im- 
proper bias,  partiality  or  hostility,  which  will  prevent  the  party  seeking 
removal  from  obtaining  justice. n  The  prejudice  may  be  either  against 
the  party  seeking  removal  or  in  favor  of  the  opposite  part}';  12  and  the 
moral  justification  therefor  is  immaterial.  1 3  But  it  must  lie  between  the 
opposite  parties  to  the  suit,  and  one  of  two  or  more  defendants  cannot  re- 
move for  alleged  prejtidice  as  between  himself  and  the  other  defendants. 1 4 
luther  prejudice  or  local  influence  are  grounds  for  removal,  the  words  being 
used  disjunctively.! '1  The  fact  that  the  only  question  at  issue  is  one  of  law 
does  not  affect  the  defendant's  right  of  removal  under  the  above  section, 
since  the  prejudice  or  local  influence  is  not  limited  to  that  which  would 
operate  upon  a  jury,  but  relates  to  suits  both  at  law  and  equity. is  The 
inquiry    should    be    whether    the    prejudice    exists    and    whether    the    local 

20Richards  v.  Rock  Rapids.  .31  Fed.  Fe<l.  307.     See  Farmers,  etc.  Bank  v. 

;">07.  Schuster.    86    Fed.    H!l.    29    C.    C.    A. 

iHobart  v.  Illinois,  etc.   R.   Co.  81  ()4S). 
Fed.  .5;   Maher  v.   Hotel    Co.  94  Fed.         sKniglit    v.    International,    etc.    R. 

•2I0:    Lookout    Mountain   v.   Houston,  Co.  (H   Feil.  90,  9  C.  C.  A.  ;37tt. 
32  Fed.  711.  iiAdelbert    College    v.    Toledo.    47 

-'See    Wilson    v.    Rock    Inland,    etc.  Fed.   8.3G. 
Co.  20  Fed.  70o.  i2Xeal   v.   Foster,   31    Fed.    r,:i,    12 

3Durkee  v.   Illinois,  etc.   R.  Co.  81  Sawv.    424:    Parks    v.    Southern    Ry. 

l^i'd.  I.  no  Fed.  4. 

<Thorne    v.    Tanning    Co.    l.'i     Fed.         i^Bartlett   v.    Cales.    117    Fed.    ■MV2. 
2S9.  nHanrick    v.    Hanrick.    15.3    V.    S. 

SHess   v.   Reynolds,    113    U.    S.    SO.  I9tj.  38   L.  ed.  tiSS.    14  Sup.  Ct.  Rep. 

28   L.   ed.   930.'.-)   Sup.   Ct.  Rep.   377:  835. 

Car«on    v.    Hvatt,   118   I'.    S.   289.    30        i5Huskens  v.  Cincinnati  R.  Co.  .il 

L.  ed.  170,  (iSup.  Ct.  Rep.  1050.  Fed.  .)04.  3  L.R.A.  .14.1. 

«Removal  Cases.   100  V.  S.  473.  25         isDetroit  v.  Detroit,  etc.  H.  Co.  54 

L.  ed.  599.  ImmI,    1.      See   also  Bonner  v.  Meikle, 

^Idem.  77    K,.,i.   845. 

SDavis    V.    Cliic:i-_'o.    otr.    B.    Co.    4li 

3.19 


§   136   [f]  CIRUCIT    COURT — JURISDICTTION.  [Code  Fed. 

judge  is  exposed  to  it.iT  Removal  may  be  allowed  although  the  evidence 
does  not  justify  the  finding  that  he  cannot  or  will  not  treat  the  defendants 
fairly.  18 

[f]  "In  any  other  State  court  to  which  defendant  may  .  .  .  remove.'* 
Before  the  circuit  court  can  order  a  removal  on  the  ground  of  local  in- 
fluence or  prejudice  is  must  appear  that  the  defendant  cannot  obtain  jus- 
tice in  any  State  court  to  which  he  may  remove  the  cause  under  the  State 
laws.i  Where,  however,  under  the  State  law,  an  order  of  removal  to 
another  county  on  the  ground  of  prejudice  or  local  influence,  is  discre- 
tionary with  the  State  court  the  defendant  may  apparently  remove  to  the 
circuit  court  without  showing  prejudice  or  local  influence  in  other  counties 
of  the  State.2  Where  the  existence  of  prejudice  on  the  part  of  the  local 
judge  is  relied  upon,  the  fact  that  he  might  preside  at  the  trial  of  the 
cause  if  tried  in  any  other  county  is  sufficient  to  justify  a  removal  order.* 

§  137.     Removal    of    causes   against   persons    denied   any   civil 
rights. 

When  any  civil  suit  or  criminal  prosecution  is  commenced  in  any 
State  court,  for  any  cause  whatsoever,  against  any  person  who  is 
denied  or  cannot  enforce  in  the  judicial  tribunals  of  the  State,  or 
in  the  part  of  the  State  where  such  suit  or  prosecution  is  pending, 
any  right  secured  to  him  by  any  law  providing  for  the  equal  civil 
rights  of  citizens  of  the  United  States,  or  of  all  persons  within  the 
jurisdiction  of  the  United  States,  or  against  any  officer,  civil  or 
military,  or  other  person,  for  any  arrest  or  imprisonment  or  other 
trespasses  or  wrongs,  made  or  committed  by  virtue  of  or  under 
color  of  authority  derived  from  any  law  providing  for  equal  rights 
as  aforesaid,  or  for  refusing  to  do  any  act  on  the  ground  that  it 
would  be  inconsistent  with  such  law,  such  suit  or  prosecution  may, 
upon  the  petition  of  such  defendant,  filed  in  said  State  court  at 
any  time  before  the  trial  or  final  hearing  of  the  cause,  stating  the 
facts  and  verified  by  oath,  be  removed,  for  trial,  into  the  next  cir- 
cuit court  to  be  held  in  the  district  where  it  is  pending. 
Part  of  R.  S.  §  641,  U.  S.  Comp.  Stat.  1901,  p.  520. 

The  remainder  of  the   section  prescribes  the  procedure  and  is  given  in 


iTMonteomerv  Co.  v.  Cochran,  116  2Smith  v.  Crosby,  etc.  Co.  46  Fed. 

Fed   985.  824 ;  Tacoma  v.  Wright,  84  Fed.  838. 

isTacoma  v.  Wnight,  84  Fed.  838;  See   also   Bonner  v.   Meikle.   77    Fed. 

Detroit  v.  Detroit,  etc.  R.  Co.  54  Fed.  485 ;   Herndon  v.  Soutbern  R.  Co.  73 

]g  Fed.      307.      But      see      Robison     v. 

iSouthworth  V.  Reid,  36  Fed.  451;  Hardy,  38  Fed.  49. 

ke  V.  Flovd   42  Fed.  247.  sWalcott  v.   Watson,  46   Fed.  529. 


Rike  V.  Flovd,  42  Fed.  247 

360 


Procedure]  REMOVAL  OF  CAUSES   AGAINST  OFFICERS.  §   138 

another  chapter.5  Acts  of  1887  and  1888,  amending  the  removal  laws,  ex- 
pressly declared  that  this  section  was  not  to  be  deemed  repealed  or  affect - 
ed.ti  The  above  provision,  giving  the  right  of  removal  to  the  Federal  court 
of  a  cause  commenced  in  a  State  court  against  a  person  who  is  denied 
or  cannot  enforce  his  civil  rights,  has  reference  to  a  denial  of  those  rights 
or  an  impediment  to  their  enforcement  arising  from  some  State  law,  stat- 
ute or  regulation.'?  The  maladministration  of  the  laws  by  the  State 
oiBcers  is  of  itself  no  ground  for  removal,  s  Hence  the  fact  that  the 
State  court,  in  a  particular  case,  may  not  enforce  the  right  to  equal  pro- 
tection under  the  law,  is  no  ground  for  removal,  where  the  State  laws  do 
not  stand  in  the  way  of  equal  protection. 9  The  fact  that  the  local  prej- 
udice is  so  great  that  the  defendant  may  not  have  a  fair  trial,  is  no 
ground  for  removal  under  this  section ;io  nor  is  the  fact  that  colored  per- 
sons,! i  or  persons  of  the  same  political  belief  as  the  defendant,  12  are  ex- 
cluded from  juries,  such  exclusion  not  being  by  virtue  of  State  law.  The 
fact  that  the  defendant  has  been  unable  to  secure  an  attorney  or  has  been 
unable  to  have  the  case  tried  on  account  of  postponements  by  the  plain- 
tiflF,i3  does  not  make  out  a  case  within  this  section.  A  State  statute  pre- 
scrbing  punishment  for  acts  committed  in  one  place  and  not  for  the  same 
acts  committed  elsewhere,  is  not  within  the  meaning  of  the  above  provi- 
sion, the  legislation  not  being  directed  against  any  particular  class  of 
persons.  !■* 

§  138.  Removal  of  canses  against  revenue  and  registration  of- 
ficers. 
When  any  civil  suit  or  criminal  prosecution  is  commenced  in  any 
court  of  a  State  against  any  officer  appointed  under  or  acting  by 
authority  of  any  revenue  law  of  the  United  States  now  or  hereafter 
enacted,  or  against  any  person  acting  under  or  by  authority  of  any 
such  officer,  on  account  of  any  act  done  under  color  of  his  office  or 

sPost.  §  1145.  .582,  40  L.  ed.  1075,  16  Sup.  Ct.  Rep. 

6§  5.  act  March  3.  1887.  c.  375.  24  904. 
Stat.  000,  as  corrected  Aug.  13,  1888,        lOTexas  v.   Gaines,   2  Woods,   342, 

c.  806,  §  5.  25  Stat.  436.  Fed.    Cas.     No.     13.847:     Fowlkos  v. 

"Kentuckv    v.    Powers.    201    V.    S.  Fowlkes.  21   Int.  Rev.  Rec.  358,  Fed. 

1.  50  L.  ed.  633.  26  Sup.  Ct.  Rep.  387;  Cas.  No.  5,005. 

Ex.  parte  Wells.  3  Woods,  132.  Fed.        nMurray  v.  Louisiana.   163  U.   S. 

Cas.   No.   17,386:    Neal   v.   Delaware,  106,   41    L.   ed.  87,  16  Sup.   Ct.   Rep. 

103   U.   S.   392,   393.   20   L.    ed.   .507;  990:    Gibson   v.   Mississippi.    162   U. 

Bush  V.  Kentuckv.  107  U.  S.  116.  27  S.   584.   40  L.   ed.   1075,   16   Sup.   Ct. 

L.   ed.   357.   1     Sup.    Ct.     Rep.    625;  Rep.  904:   Neal  v.  Delaware,  103  U. 

Strauder  v.  West  Virainia.  100  U.  S.  S.   392,  26   L.  ed.  507. 
300.  25  L.  ed.  666:  Virginia  v.  Rives,        i2Kentuckv  v.   Powers,   201   U.   S. 

100  U.  S.  31.3..  25  L.  ed.  607;  Scott  v.  1,   50   L.   ed."  633,   26   Sup.   Ct.   Rep. 

Kcnnoy  Co.  137  Fed.  1011.  387. 

Mventuckv  v.  Powers.  201   X'.  S.  1,        isScott   v.    Kennov    Co.    137    Fed. 

50  1..  ed.  033,  26  Sup.  Q.   Rep.  .387:  1010. 
California  v.  Chue  Fan.  42  Fed.  865.        i4People  v.  Bennett,  113  Fed.  515. 

sQib.son   v.  Mississippi,   162   U.   S. 

361 


S   l.;S    [a  I  riRCriT   court— .TURISDICTIOX.  [Codo   Fed. 

of  any  such  law,  or  on  account  of  any  right,  title,  or  aiithority 
claimed  bv  such  officer  or  other  person  under  any  such  law ;  or  ie 
commenced  against  any  person  holding  property  or  estate  by  title 
derived  from  any  such  officer,  and  affects  the  validity  of  any  such 
revenue  law ;  .  .  .  the  said  suit  or  prosecution  may.  at  any 
time  before  the  trial  or  final  hearing  thereof,  be  removed  for  trial 
into  the  circuit  court  next  to  be  holden  in  the  district  where  the 
same  is  pending,  upon  the  petition  of  such  defendant  to  said  circuit 
court,  and  in  the  following  manner/^^'^''^ 

Part  of  R.  S.  §  G43,  U.  S.  Comp.  Stat.  1001.  p.  521. 

[a]     In  general. 

The  remainder  of  the  section  prescribes  the  procedure  and  is  given  in 
nnother  chapter. 1 6  Acts  of  1887  and  1888  amending  the  removal  laws 
expressly  declared  that  this  section  was  not  to  be  deemed  repealed  or 
affectedjiT  and  the  original  act  of  1875,  was  not  inconsistent  with  its 
provisions.! s  The  section  should  be  given  a  liberal  construction.! 9  It 
covers  all  suits  against  Federal  revenue  officers  for  acts  done  by  them  un- 
der color  of  the  revenue  laws,2  0  and  all  suits  against  any  person  acting 
under,  or  by  authority  of  such  officer;!  but  it  does  not  extend  the  right  of 
removal  to  persons  who  are  being  prosecuted  merely  on  account  of  a  right 
or  authority  claimed  under  a  revenue  law. 2  The  amount  in  dispute  is 
immaterial."  Where  the  action  is  criminal  and  under  the  State  laws 
must  be  prosecuted  by  indictment,  removal  cannot  be  liad  until  such  indict- 
ment is  found. 4  Hence  removal  cannot  be  had  by  a  person  arrested  and 
imprisoned,  to  await  the  action  of  the  grand  jury.^^  But  in  case  or  a 
misdemeanor,  nonindictable  under  State  law,  removal  may  be  had  from  tlie 
court  of  the  justice  of  the  peace. 6  Removal  may  be  had  at  "any  time  be- 
fore the  trial  or  final  hearing."  Tliis  is  said  to  refer  to  the  coiut  of  orig- 
inal jurisdiction  where  the  suit  is  brought."  The  right  is  not  taken  away 
by  an  allegation  in  the  defense  that  the  act  rliarged  was  not  in  fact  done.s 

16 Post,  §  1146.  2 Idem. 

!7§  5.  act  March  3.  1S87,  c.  873.  24         3\',.nable    v.    Richards.    105    U.    S. 

Stat.  555.  as  corrected  Aug.  13.  1888,  037.  2(i  L.  ed.  1197. 
c.  866.  §  5,  25  Stat.  436.  ^Virginia   v.    Paul,    148   I'.   S.    120, 

isSee  Venable  v.  Ricliards,   105  V.  37  L.  ed.  301.  13  Sup.  Ct.  Rep.  536. 

S.  638.  26  L.  ed.  1197.  But  see  State  v.  Bolton,  11  Fed.  217. 

inVard    V.    Congress,    etc.    Co.    O^i         5Virginia   v.   Paul,    148   U.   S.    119, 

Fed.  604.   39   C.   C.  A.   669;    State  v.  37   L.   ed.  391,  13  Sup.  Ct.  Rep.  536. 
Sullivan.   50   Fed.   594.  syirgiinia  v.  Bingham.  88  Fed.  564. 

2  0Findley  v.   Satterfield,  3  Woods,        ^Brice  v.  Somers,  1  Flip.  578,  Fed. 

504,  Fed.  Cas.  No.  4,792;   Johnson  v.  Cas.  No.  1,856. 
Wells   Fargo,  etc.   Co.   98  Fed.  7.  sCleveland,  etc.  R.  Co.  v.  McClung. 

1  Johnson  v.  Wells  Fargo,  etc.  Co.  119  U.  S.  454,  30  L.  ed.  465,  7  Sup. 

98  Fed.  7.  Ct.  Rep.  262. 

<^ 


I^rocedmel  CONCURRENT  JURISDICTION,  §   1?.0 

[b|     Removal  in  particular  cases. 

Removal  under  the  above  provision  was  allowed  in  the  following  cases: 
-action  to  enjoin  the  construction  of  a  postoffice,  under  contract  made  witM 
ihe  Secretary  of  the  Treasury; lo  a  proceeding  in  ejectment  to  recover  pos- 
session of  premises  used  as  a  warehouse  by  internal  revenue  officers ;ii  ac- 
lion  against  revenue  officer  for  contempt  in  refusing  to  allow  sheriff  to  levy 
goods  in  warehouse;  12  prosecutions  against  United  States  marshals,  their 
deputies  or  assistants,  for  acts  done  while  attempting  to  enforce  revenue 
laws;  13  action  against  revenue  collector  to  recover  back  taxes  paid  under 
protest.i^  It  was  refused  in  case  of  a  prosecution  of  a  deputy  marslial  for 
a  crime  not  committed  under  color  of  his  official  duty;i5  and  a  suit  against 
an  express  company  for  refusing  to  accept  a  package  because  the  shipper 
would  not  furnish  the  Federal  revenue  stamp. i« 

§  139.     Concurrent  jurisdiction   with   coiut   of  claims. 

The  circuit  court?  of  the  United  States  shall  have  such  concurrent 
jurisdiction  [with  the  Court  of  Claims]  in  all  ca.ses  where  the 
amount  of  such  claim  exceeds  one  thousand  dollars  and  does  not 
•exceed  ten  thousand  dollars.  All  causes  brought  and  tried  under 
the  provisions  of  this  act  shall  be  tried  bv  the  court  without  a 
jurv.  The  jurisdiction  hereby  conferred  upon  the  said  circuit 
courts  shall  not  extend  to  cases  luought  to  recdver  fees. 
salary,  or  compensation  for  official  services  of  officers  of  the  United 
States  or  brouglit  for  such  purpose  by  persons  claiming  as  such 
■officers  or  as  assignees  or  legal  representatives  thereof. 

Part  of  §  2.  act  June  27,   1898,  c.  503,  30  Stat.  404.  amending  §  3,  act 
Mar.  :i  1887.  c.  S.^fl,  24  Stat.  oO.J,  U.  S.  Comp.  Stat.  1901,  p.  753. 

This  section  also  gave  concurrent  jurisdiction  to  the  district  court,  of 
<-]aiins  not  exceeding  one  thousand  dollars. i  The  amendment  of  June  27, 
1898  consisted  in  the  addition  of  the  provision  beginning  "Tiie  jurisdiction 
iiereby  conferred."  In  order  to  prevent  this  amendment  from  abating  ac- 
tions already  pending  the  act  of  Feb.  26,  19002  was  passed,  providing  that 
such  actions  should  not  abate  or  be  affected.  Before  the  passage  of  the 
latter  act  it  was  held  by  some  courts  that  the  amendment  thus  taking 
away  jurisdiction   from   the  circuit   and  district   courts  in   the  cases   men- 

loWard    v.    Congress,    etc.    Co.    99  m'enable   v.    Richards.    105    V.   S. 

Fed.  598.  .39  C.  C.  A.  669.  (i36.  26  L.  ed.  1196. 

iiCiallatin  v.  Sherman,  77  Fed.  337.  i5lllinois  v.  Fletcher.  22  Fed.  776. 

i2;McCnllough    V.    Large.    20    Fed.  isJolinson  v.  Wells  Fargo,  etc.  Co. 

•"09.  98  Fed.  3. 

i"'Davis  V.  South  Carolina.   107   V.  iPost.  §  212. 

S.  .597.  27  L.  ed.  .574,  2  Sup.  Ct.  Rep.  2 Act  Feb.  26,   1900,  c.  25,  31   Stat. 

636:    Virginia    v.   DeHart.    119    Fed.  33. 
626. 

363 


§  140  CIRCUIT   COURT—  [Code   Fed. 

tioned  applied  to  pending  suits,3  and  by  others  that  it  did  not.*  Under 
this  section  an  assignee  can  sue  on  a  claim  if  his  assignor  could  have  done 
so. 5  The  rejection  of  a  claim  for  a  tobacco  rebate,  by  a  commissioner 
of  Internal  Revenue  is  cognizable  by  the  circuit  court  under  the  above  pro- 
vision.6  It  does  not  apply,  however,  to  a  suit  by  a  marshal  for  disburse- 
ments in  procuring  bailiffs  as  that  is  not  "fees,  salary  or  compensation."? 
The  amount  claimed  must  exceed  one  thousand  dollars  but  if  made  in  good 
faith,  the  fact  that  recovery  is  less  than  that  amount  is  immaterial.  8 

§  140.  Jurisdiction  over  revenue  decisions  of  general  apprais- 
ers. 

If  the  owner,  importer,  consignee,  or  agent  of  any  imported 
merchandise,  or  the  collector,  or  the  Secretary  of  the  'JVeasiiry,  shall 
be  dissatisfied  with  the  decision  of  the  board  of  general  appraisers, 
as  provided  for  in  section  fourteen  of  this  act,  as  to  the  construction 
of  the  law  and  the  facts  respecting  the  classification  of  such 
merchandise  and  the  rate  of  duty  imposed  thereon  under  such 
classification,  they  or  either  of  them,  may,  within  thirty  days  next 
after  such  decision,  and  not  afterwards,  apply  to  the  circuit  court 
of  the  United  States  within  the  district  in  which  the  matter  arises, 
for  a  review  of  the  questions  of  law  and  fact  involved  in  such 
decision. 

Part  of  §  15,  act  June  10,  1890,  c.  407,  26  Stat.  138,  U.  S.  Comp.  Stat. 
1901,  p.   1933. 

The  remainder  of  §  15  provides  the  mode  of  proceeding  on  such  appeals 
and  is  given  in  a  later  chapter,  lo 

§  141.  Jurisdiction  of  partition  suits  where  United  States  are 
parties. 

The  several  circuit  courts  of  the  United  States  shall  have  juris- 
diction of  suits  in  equity  brought  by  any  tenant  in  common  or 
joint  tenant  for  the  partition  of  lands  in  cases  where  the  United 
States  is  one  of  such  tenants  in  common  or  joint  tenants,  such  suit 
to  be  brought  in  the  circuit  court  of  the  district  in  which  swch 
land  is  situate. 

§  1,  act  May  17,  1898,  c.  339,  30  Stat.  416,  U.  S.  Comp.  Stat.  1901,  p.  516. 

sAmsden  v.  United  States,  111  Fed.        sEmmons  v.  United  States,  48  Fed. 

1,    55   L.R.A.    364;    United    States   v.  44. 

Kelly,  97  Fed.  460.  38  C.  C.  A.  275;        sHyams  v.  United  States,  139  Fed. 

United  States  v.  Marsh,  92  Fed.  689,  997. 
34  C.  G.  A.  619.  vUnited  States  v.  Swift,  139  Fed. 

^United  States  v.  Jacobus,  96  Fed.  225,  (C.  C.  A.) 
260.  37  C.  C.  A.  466;  Strong  v.  United        sidem. 
States,  93  Fed.  257.  loPost,  §  1443. 

364 


I 


Procedure]  JURISDICTION.  §   144 

§  142.     Over  proceedings  under  anti-trust  act  of  1890. 

The  several  circuit  courts  of  the  United  States  are  hereby  invested 
with  jurisdiction  to  prevent  and  restrain  violations  of  this  act. 
Part  of  §  4  act  July  2,  1890,  c.  647,  26  Stat.  209,  U.  S.  Comp.  Stat. 
1901,  p.  3201. 

The  omitted  portion  of  the  section  prescribes  the  duty  of  the  district 
attorney  and  the  procedure  to  be  followed,  i*  There  is  now  a  special  pro- 
vision for  the  speedy  hearing  of  such  cases  by  three  judges  sitting  together 
at  circuit.  15  The  power  given  by  the  section  to  restrain  violation  of  the 
act  is  not  an  unwarranted  invasion  of  the  right  to  jury  trial. is 

§  143.     Jurisdiction  to  enforce  injunction  in  copyright  cases. 

The  circuit  courts  or  judges  thereof  shall  have  jurisdiction  to 
enforce  said  injunction  [restraining  the  unauthorized  performance 
or  representation  of  any  dramatic  or  musical  composition  for  which 
copyright  has  been  detained],  and  to  hear  and  determine  a  motion 
to  dissolve  the  same,  as  herein  provided,  as  fully  as  if  the  action 
were  pending  or  brought  in  the  circuit  in  which  said  motion  is 
made. 

Part  of  R.  S.  §  4966,  as  amended  1897,  act  of  Jan.  6.  1897,  c.  4,  29  Stat. 
481,  U.  S.  Comp.  Stat.  1901,  p.  3415. 

The  circuit  courts  are  given  general  jurisdiction  over  patent  and  copy- 
right suits  by  a  previous  section. is 

§  144.     Jurisdiction  to  prevent  combinations  restraining  import 
trade. 

The  several  circuit  courts  of  the  United  States  are  hereby  in- 
vested with  jurisdiction  to  prevent  and  restrain  violations  of  section 
seventy-three  of  this  act  [declaring  unlawful  combinations  and  con- 
spiracies in  restraint  of  import  trade]. 

Part  of  §  74,  act  Aug.  27,  1894,  c.  349,  28  Stat.  570,  U.  S.  Comp.  Stat. 
1901,  p.  3203. 

The  omitted  portion  of  the  above  section,  making  it  the  duty  of  the 
district  attorneys  to  prevent  violations  of  the  act,  and  prescribing  proce- 
dure in  such  cases,  is  given  in  following  chapters. i  Parties  injured  by  vio- 
lations of  this  act  may  sue  in  circuit  court  in  the  district  where  the  de- 
fendant resides  or  is  found,  without  regard  to  the  amount  in  controversy.3 

"Post,  §§  5.3G,  1345.  18 Ante,  §  127. 

isPost,  §  1345.  et  seq.  iPost,  §§  535,  1345. 

leUnited  States  v.  Elliott,  64  Fed.        2Post,  §  418. 
27;   United  States  v.  Agler,  62   Fed. 
824. 

365 


§  145.     To  remove  structures  obstructing;  navigation. 

The  vcwumx]  of  any  stnictiiri's  oi'  ])arts  of  .'^tinu-tiires  erected  ia 
violation  of  the  provisions  of  the  said  sections  |  sections  nine,  ten 
and  elev(>n  of  the  same  act.  respect  in^  the  constiTict  ion  nf  a  hridii-c. 
dam.  dike  or  causeway,  over  or  in  any  jiovl.  roadsrt'uil.  liaxcn.  luirbor. 
canal,  naviiiabie  river  oi-  other  navi^-aljle  v,  alci-  nf  the  Ignited 
States]  may  he  enforced  by  the  injunction  of  any  circuit  court  ex- 
ercising jurisdiction  in  any  district  in  whicli  sucli  structures  mav 
exist,  and  proper  proceedings  to  this  end  may  be  instituted  under 
tlie  direction  of  the  Attorney  General  of  the  United  States. 

Part  of  §  12,  act  March  ,3,  1809.  c.  425,.  30  Stat.  11.5L  U.  S.  Comp.  Stat. 
1901,  p.  3542. 

A  bill  for  obstructioji  will  lie  tliongli  tliere  is  no  proof  of  ac-tual  use  of 
a  navigable  .stream  in   interstate  or   foreign   commerce. 4 

§  146.     To  mandamus  marshals,  clerks,  etc.,  to  make  return  of 
fees. 

The  circuit  courts  of  the  United  States,  for  the  purposes  of  this 
act  [an  act  regulating  fees  and  costs  and  providing  for  auditing  and 
l)roving  ccst  bills  and  accounts  of  district  attorneys,  clerks,  mar- 
shals, and  commissioners  I  shall  have  power  to  award  the  writ  of 
mandamus,  according  to  the  course  of  the  common  law.  upon  motion 
of  the  Attorney  General  or  the  district  attorney  of  the  United 
States,  to  any  officer  thereof,  to  com])el  him  T<i  make  the  returns 
and  perform  the  duties  in  this  act  requii'cd. 

§  4  act  Feb.  22,   1875,  c.   95,  18  Stat.  333,   V.  S.  Comp.   Stat.   1901,  ]). 
649. 

§  147.     Jurisdiction  over  suits  for  penalties  under  alien  immi- 
grant laws. 

For  every  violation  of  any  of  the  provisions  of  section  one  of 
this  act  the  person,  partnership,  company,  or  corporation  violating 
the  same,  by  knowingly  assisting,  encouraging  m-  soliciting  tli  • 
migration  or  importation  of  any  alien  or  aliens,  foreigner  or  for- 
eigners, into  the  United  States,  its  Territories,  or  the  district  of 
Columbia,  to  perform  labor  or  service  of  any  kind  under  contract 
or  agreement,  express  or  implied,  parol  or  special,  with  such  alien 
or  aliens,  foreigner  or  foreigners,  previous  to  becoming  residents 

4Fnitefl   Stntes  v.  Wislikah  B.  Co. 
136  Fed.  42.  68  C.  C.  A.  592. 

366 


I'locedure]  JURISDICTION.  §   14r> 

or  citizens  of  the  United  States,  shall  forfeit  and  pay  for  every  sucli 
offense  the  sum  of  one  thousand  dollars,  which  may  he  sued  for  and 
recovered  by  the  United  States  or  by  any  person  mA\o  shall  first  bring 
his  action  therefor  including  any  such  alien  or  foreigner  who  may 
be  a  party  to  any  such  contract  or  agreement,  as  debts  of  like  amount 
are  now  recovered  in  the  circuit  courts  of  the  United  States ;  the  pro- 
ceeds to  be  paid  into  the  Treasury  of  the  United  States ;  and  separate 
suits  may  be  brought  for  each  alien  or  foreigner  being  a  party  to 
such  contract  or  agreement  aforesaid. 

Part  of  §  .3,  act  Feb.  26,  1885,  c.  164,  23  Stat.  333,  U.  S.  Comi..  Stat. 
1901.  p.  1291. 

riie  omitted  portion  of  the  above  section  making  it  the  duty  of  the  dis- 
trict attorney  to  prosecute  .such  suits,  is  given  in  a  following  chapter. i 
Proceedings  l)rouglit  under  this  provision  cannot  be  settled,  compromised 
or  discontinued  without  consent  of  the  court,  entered  of  record. 2  Tlie 
soliciting  of  alien  immigration  by  transportation  companies  and  ownei- 
of  vessels  is  made  subject  to  the  penalties  above  prescribed.^  Notwith- 
standing the  reference  to  the  circuit  court  in  the  above  provision,  it  i> 
settled  that  the  jurisdiction  of  such  suits  is  in  the  district  court  under 
its  gen«^i-al  jurisdiction  o\  ei-  suits  for  penalties  and  forfeitures. 4 

§  148.     Over  suit  on  defaulting  paper  contractor's  bond. 

In  casr  of  tlic  default  of  any  contractor  to  furnish  pa])er,  he  and 
his  sureties  shall  bo  res])onsible  for  any  increase  of  cost  to  th'- 
govci'iniient  in  procuring  a  supply  of  such  papier  which  may  be  con- 
sequent u])on  such  default.  The  public  printer  shall  report  every 
such  default,  with  a  full  statement  of  all  the  facts  in  the  case,  to 
the  Solicitor  of  the  Treasury,  who  shall  prosecute  the  defaulting 
couti'actor  and  his  sureties  upon  their  bond,  in  the  circuit  court  ol' 
tile  I'nited  States  in  the  district  in  which  such  defaulting  contractors 
reside. 

§  10,  act  Jan.  12,  1895,  c.  23,  28  Stat.  602,  U.  S.  Comp.   Stat.    1901.   p. 
2539. 

Similar  provisions  contained  in  the  Revised  Statutes^  are  superseded  by 
the  above  section. 

§  149.     Jurisdiction  of  suits  to  determine  right  to  Indian  allot- 
ments. 

-Ml  persons  who  are  in  whole  or  in  part  of  Indian  blood  or  descent 

iPost.  §  541.  4Lees  v.  United   States.  150  U.   S. 

2Post,  §   1391.  475.  37  L.  ed.  1151.  14  Sup.  Ct.  Kep. 

"§  4.  act  March  3.  1891,  c.  551.  26    163. 
Stat.  1084.  6R.  S.  §§  3776.  3777. 

367 


^  150  CIRCUIT  COURT—  [Code  Fed. 

who  are  entitled  to  an  allotment  of  land  under  any  law  of  Congress, 
or  who  claim  to  be  so  entitled  to  land  under  any  allotment  act  or 
under  any  grant  made  by  Congress,  or  who  claim  to  have  been  un- 
lawfully denied  or  excluded  from  any  allotment  or  any  parcel  of 
land  to  which  they  claim  to  be  lawfully  entitled  by  virtue  of  any 
act  of  Congress,  may  commence  and  prosecute  or  defend  any  action, 
suit,  or  proceeding  in  relation  to  their  right  thereto,  in  the  proper 
circuit  court  of  the  United  States;  and  said  circuit  courts  are 
hereby  given  jurisdiction  to  try  and  determine  any  action,  suit, 
or  proceeding  arising  within  their  respective  jurisdictions  involving 
the  right  of  any  person,  in  whole  or  in  part  of  Indian  blood  or 
descent,  to  any  allotment  of  land  under  any  law  or  treaty,  and  in 
said  suit  the  parties  thereto  shall  be  the  claimant  as  plaintiff  and 
the  United  States  as  party  defendant,  and  the  judgment  or  decree 
of  any  such  court  in  favor  of  any  claimant  to  an  allotment  of  land 
shall  have  the  same  effect,  when  properly  certified  to  the  Secretary 
of  the  Interior,  as  if  such  allotment  had  been  allowed  and  approved 
by  him,  but  this  provision  shall  not  apply  to  any  lands  now  held 
])y  either  of  the  Five  Civilized  Tribes,  nor  to  any  of  the  lands  within 
the  Quapaw  Indian  Agency;  provided,  that  the  right  of  appeal 
shall  be  allowed  to  either  party  as  in  other  cases. 

§  1  act  Feb.  6,  1901,  c.  217,  31  Stat.  760,  amending  Indian  Appropria- 
tion act  Aug.  15,  1894,  c.  290,  28  Stat.  305. 

The  provision  confers  on  the  circuit  court  jurisdiction  to  hear  and  de- 
termine the  complaint  of  any  person  in  whole  or  in  part  of  Indian  blood, 
who  claims  to  have  been  unlawfully  denied  or  excluded  from  an  allotment 
of  land,  to  which  he  claims  to  be  lawfully  entitled  by  act  of  Congress,  s 
It  is  held  that  the  United  States  is  not  a  necessary  party  to  the  suit. 9 
The  amendment  of  1901,  however,  expressly  provides  that  the  United 
States  shall  be  party  defendant. 

§  150.  Circuit  and  district  court  jurisdiction  over  government 
condemnation  suits. 
The  United  States  circuit  or  district  courts  of  the  district  wherein 
such  real  estate  [as  the  Secretary  of  the  Treasury  or  other  govern- 
mental officer  is  authorized  to  procure  for  public  uses]  is  located, 
shall  have  jurisdiction  of  proceedings  for  .  .  .  condemnation 
[in  cases  where  in  his  opinion  it  is  necessary  or  advantageous  to 

8Hy-yu-tse-kin  v.  Smith,  119  Fed. 
115,  55  C.  C.  A.  216. 
9  Idem. 

3C3 


Procedure]     OVER   DAMAGE   SUITS  UNDER  COMMERCE   ACT.  §   151 

the  Government  to  procure  the  same  for  the  United  States  by  con- 
demnation under  judicial  process]. 

Part  of  §  1  act  Aug.  1,  1888,  c.  728,  25  Stat.  357,  U.  S.  Comp.  Stat. 
1901,  p.   2516. 

§  151.  —  over  damage  suits  under  interstate  commerce  act. 

Any  person  or  persons  claiming  to  be  damaged  by  any  com- 
mon carrier  subject  to  the  provisions  of  this  act  may  either  make 
complaint  to  the  Commission  as  hereinafter  provided  for,  or  may 
bring  suit  in  his  or  their  own  behalf  for  the  recovery  of  the  damages 
for  which  such  common  carrier  may  be  liable  under  the  provisions 
of  this  act,  in  any  district  or  circuit  court  of  the  United  States  of 
competent  jurisdiction;  but  such  person  or  persons  shall  not  have 
the  right  to  pursue  both  of  said  remedies,  and  must  in  each  case 
elect  which  one  of  the  two  methods  of  procedure  herein  provided 
for  he  or  they  will  adopt. 

Part  of  §   9  act  Feb.  4,  1887,  c.  104,  24  Stat.  382,  U.  S.  Comp.  Stat. 
1901,  p.  3159. 

The  act  also  declares  various  acts  and  practices  to  be  misdemeanors 
and  provides  the  punishment  resulting  "upon  conviction  thereof  in  any 
court  of  the  United  States  of  competent  jurisdiction  within  the  district  in 
which  such  offense  was  committed."! i  In  1889  the  circuit  and  district 
courts  were  further  authorized  to  issue  mandamus  against  a  carrier  to 
compel  him  to  transport  freight  for  relator  without  discrimination.! 2 
Suits  arising  under  the  provisions  of  the  interstate  commerce  act  are  suits 
under  the  Federal  laws  and  the  citizenship  of  the  parties  is  immaterial.! 3 
The  provisions  of  the  judiciary  fict  of  1887-1888  limiting  the  place  of 
bringing  suit  to  the  district  whereof  the  defendant  is  an  inhabitant  does 
not  apply  to  the  above  section  and  suits  thereunder  may  be  brought  in  any 
district  where  the  defendant  may  be  found. 1 4  State  courts  are  given  no 
jurisdiction  under  the  section,  the  Federal  jurisdiction  being  exclusive.! 5 
There  is  no  limitation  as  to  the  time  of  bringing  suit,  however,  and  the 
State  provisions  in  that  respect  are  to  be  followed.!  6  Thus  in  Missouri 
the  action,  imder  the  State  statutes  of  limitations,  must  be  brought  within 
three  years,! 7   and  in  Louisiana,  within  one  year.!8     The  authorities  are 

!!See  §  10.  act  Feb.  4,  1887,  c.  104,        !5Van   Patten   v.   Chicago,   etc.   R. 

24  Stat.  382,  U.  S.  Comp.  Stat.  1901,  Co.  74  Fed.  981 ;  Edmunds  v.  Illinois, 

p.  3160.  .  etc.  R.  Co.  80  Fed.  79. 

!2See  following  section.  !6Ratican   v.   Terminal,  etc.  Assn. 

iSToledo,  etc.  Rv.  v.  Pennsylvania  114  Fed.  668. 
Co.   54  Fed.   732,   19   L.R.A.   387;   In        lUdem. 

re  Lennon,   166  U.   S.  548.  41   L.  ed.        !SCopD    v.   Louisville,    etc.   R.    Co. 

1110,  17  Sup.  Ct.  Rep.  658.  50  Fed.  'l64. 

i<Van   Patten   v.   Chicago,   etc.   R. 
Co.  74  Fed.  981. 

Fed.  Proc— 24.  369 


§   152  CIRCUIT   COURT—  [Code   Fed. 

not    uiiiforni    on    tlie    question    wliether    the   remedj'  given   by    the   section 
is  <>x(Iusi\i'  or  supplemental.is 

§  152.  —  of  mandamus  to  compel  equal  facilities  to  shippers. 

The  circuit  and  district  courts  of  the  United  States  shall 
have  jurisdiction  upon  the  relation  of  any  person  or  persons,  firm, 
oi-  corporation,  alleging  such  violation  [i.  e.,  by  discrimination, 
]:»references,  etc.,]  by  a  common  carrier,  of  any  of  the  provisions  of 
the  act  to  which  this  is  a  supplement  and  all  acts  amendatory 
thereof,  as  prevents  the  relator  from  having  interstate  traffic  moved 
by  said  common  carrier  at  the  same  rates  as  are  charged,  or  upon 
terms  or  conditions  as  favorable  as  those  given  by  said  common 
carrier  for  like  traffic  under  similar  conditions  to  any  other  shipper, 
to  issue  a  writ  or  writs  of  mandamus  against  said  common  carrier, 
commanding  such  common  carrier  to  move  and  transport  the  traffic, 
or  to  furnish  cars  or  other  facilities  for  transportation  for  the  party 
applying  for  the  writ. 

Part  of  §  10  act  Mar.  2,  1889,  c.  S82,  25  Stat.  862,  U.  S.  Comp.  Stat. 
1901,  p.  3172. 

Other  portions  of  the  section  authorize  issuance  of  peremptory  manda- 
mus upon  security  given,  notwithstanding  undetermined  issues  of  fact;l 
and  declare  that  the  remedy  is  cumulative  and  not  exclusive  of  others. 2 
Unjust  disciimination  is  the  wrong  which  Congress  intended  to  remedy  by 
the  above  provision.  Such  discrimination  must  not  only  be  pleaded  but 
must  be  proved  by  the  relator  or  the  writ  will  be  denied.s 

§  153.  —  under  alien  immigrant  laws. 

The  circuit  and  district  courts  of  the  United  States  are  hereby 
invested  with  full  and  concurrent  jurisdiction  of  all  causes,  civil 
and  criminal,  arising  under  any  of  the  provisions  of  this  act.  [An 
act  excluding  certain  classes  of  alien  immigrants  and  punishing 
persons  guilty  of  bringing  or  encouraging  such  immigrants,  etc.  | 
§  29  act  ]\:lar.  3,  1903,  c.  1012,  .32  Stat.  1220,  U.  S.  Comp.  Stat.  Supp. 
1905,  p.  289. 

The  above  section  supersedes  a  similar  provision  in  an  act  of  Mar.  3, 
1891.5     In  interpreting  the  superseded  section  it  was  held  that  its  inten- 

isThat  they  are  exclusive;  Central         iPost.  §  846. 
Stock    Yards*  Co.    v.    Louisville.    112         spost.  §  847. 

Fed.   823.      See   A^an   Patten   v.    Chi-        sUnited  States  v.  Norfolk,  etc.  R. 

cago,  etc.  E.  Co.   74  Fed.  981.     That  Co.  109  Fed.  831. 

thev  are   merelv   supplemental;    Tift         5 Act   March   3,    1891,  c.   551,   §   13, 

V.  Southern  R.  Co.  123  Fed.  789;  Lit-  26  Stat.  1086. 
lie  Rock.  etc.  R.  Co.  v.  East  Tennes- 
see, etc.  R.  C.  47  Fed.  772. 

370 


Procedure]  JURISDICTION.  §   155 

tion  was  to  vest  concurrent  jurisdiction,  in  the  circuit  and  district  courts 
of  cases  arising  under  the  act  of  1891  and  that  it  could  not  be  construed 
as  giving  jurisdiction  to  determine  matters  which  the  act  expressly  com- 
mitted to  the  final  determination  of  execution  officers. 6  Hence,  the  Federal 
courts  would  not  intervene  by  habeas  corpus  to  prevent  a  deportation  by 
such  officers,  under  the  provisions  of  that  act." 

§  154.  —  of  suits  for  unlawful  occupancy  of  public  lands. 

Jurisdiction  is  .  .  .  hereby  conferred  on  any  United  Slates 
district  or  circuit  court  or  territorial  district  court  having  jurisdic- 
tion over  the  locality  where  the  land  inclosed  [i.  e.,  public  lands  w.t- 
lawfully  inclosed],  or  any  part  thereof,  shall  be  situated,  to  Iimju- 
and  determine  proceedings  in  equity,  by  writ  of  injunction,  to  re- 
strain violations  of  the  provisions  of  this  act  [to  prenvent  unlawful 
occupancy  of  the  public  lands]  ;  and  it  shall  be  sufficient  to  <zivc 
the  court  jurisdiction  if  service  of  original  process  be  had  in  any 
civil  proceeding  on  any  agent  or  employee  having  charge  or  con- 
trol of  the  inclosure;  and  an}'  suit  brought  under  the  provisions  of 
this  section  shall  have  precedence  for  hearing  and  trial  over  other 
cases  on  the  civil  docket  of  the  court,  and  shall  be  tried  and  de- 
termined at  the  earliest  practicable  day.  In  any  case  if  the  in- 
closure shall  be  found  to  be  unlawful,  the  court  shall  make  tln' 
proper  order,  judgment  or  decree  for  the  destruction  of  the  inclos- 
ure, in  a  summary  way,  unless  the  inclosure  shall  be  removed  by  the 
defendant  within  five  days  after  the  order  of  the  court. 

Pari  of  §  2  act  Feb.  25,  1885,  c.  149,  23  Stat.  321,  U.  S.  Comp.   Stat. 
1001,  p.   1525. 

The  omitted  portion  of  tlie  section  makes  it  the  duty  of  the  district 
attorney   to   abate   unlawful  inclosures  of  public   land.9 

§  155.  —  over  crimes  on  Indian  reservation  in  South  Dakota. 

The  circuit  and  district  courts  of  the  United  States  for  the  dis- 
trict of  South  Dakota  are  hereby  given  jurisdiction  to  hear,  try,  and 
determine  all  actions  and  proceedings  in  which  any  person  sliall 
be  charged  with  the  crime  of  murder,  manslaughter,  rape,  assaidl 
with  intent  to  kill,  arson,  burglary,  larceny,  or  assault  with  a  dan- 

SNishimura  Ekiu  v.  United  States,    S.  86.  47  L.  ed.  724,  23  Sup.  Ct.  Rep. 
142  U.  S.  664.  35  L.  ed.  1150.  12  Sup.    613. 
<'t.  Rep.  336.  sPost,  §  534. 

■? Japanese  Immigrant  Case.  189  U. 

371 


S  156  CIRCUIT   COURT—  [Code  Fed. 

geroiis  weapon  committed  within  the  limits  of  any  Indian  res- 
ervation in  the  State  of  South  Dakota. 

§  1  of  act  Feb.  2,  1903,  c.  351,  32  Stat.  793,  U.  S.  C!omp.  Stat.  Supp. 
1905,  p.  719. 

§  156  —  over  alien  enemies. 

After  any  such  proclamation  [i.  e.  of  war  or  attempted  invasion 
by  a  foreign  government]  has  been  made,  the  several  courts  of 
the  United  States,  having  criminal  jurisdiction,  and  the  several 
justices  and  judges  of  the  courts  of  the  United  States,  are  au- 
thorized, and  it  shall  be  their  duty,  upon  complaint  against  any 
alien  enemy  resident  and  at  large  within  such  jurisdiction  or  dis- 
trict, to  the  danger  of  the  public  peace  or  safety,  and  contrary 
to  the  tenor  or  intent  of  such  proclamation,  or  other  regulations 
which  the  President  may  have  established,  to  cause  such  alien 
to  be  duly  apprehended  and  conveyed  before  such  court,  judge,  or 
justice;  and  after  a  full  examination  and  hearing  on  such  com- 
plaint, and  sufficient  cause  appearing,  to  order  such  alien  to  be  re- 
moved out  of  the  territory  of  the  United  States,  or  to  give  sureties 
for  his  good  behavior,  or  to  be  otherwise  restrained,  conformably 
to  the  proclamation  or  regulations  established  as  aforesaid,  and 
to  imprison,  or  otherwise  secure  such  alien,  until  the  order  which 
may  be  so  made  shall  be  performed, 

R.  S.  §  4069,  U.  S.  Comp.  Stat.  1901,  p.  2762. 

The  above  section  was  originally  enacted  in  1789.il 

§  157.  —  over  offenses  committed  upon  the  great  lakes. 

The  circuit  and  district  courts  of  the  United  States,  respectively, 
are  hereby  vested  with  the  same  jurisdiction  in  respect  of  the  of- 
fenses mentioned  in  the  first  section  of  this  act  [i.  e.  offenses 
committed  upon  the  great  lakes]  that  they  by  law  have  and  possess 
in  respect  of  the  offenses  in  said  chapter  and  title  in  the  first 
section  of  this  act  mentioned  [i.  e.  chapter  III.  of  title  70,  R.  S. 
punishing  crimes  arising  within  the  maritime  and  territorial  juris- 
diction of  the  United  States],  an  said  courts,  respectively,  are 
also  for  the  purposes  of  this  act  vested  with  all  and  the  same 
jurisdiction  they,  respectively,  have  by  force  of  title  thirteen,  chap- 

11  Act  July   6,   1789,   c.   60,   §   2,  1 
Stat.  577. 

372 


Procedure]  JURISDICTION.  §  159 

ter  three,  and  title  thirteen,  chapter  seven,  of  the  Kevised  Statutes 
of  the  United  States. 

§  2,  act  Sept.  4,  1890,  c.  874,  26  Stat.  424,  U.  S.  Comp.  Stat.  1901,  p. 
3628. 

The  criminal  jurisdiction  of  the  Federal  courts,  prior  to  the  above  en- 
actment, did  not  extend  to  the  great  lakes.i*  Federal  courts  having  no 
common  law  jurisdiction  in  criminal  cases  are  confined  to  the  terms  of  the 
particular  statute.  So  there  can  be  no  constructive  larceny  as  it  exists 
at  common  law,  under  the  provisions  of  the  above  section.is 

§  158.  —  to  enforce  awards  of  foreign  consuls. 

The  district  and  circuit  courts,  and  the  commissioners  of  the 
circuit  courts,  shall  have  power  to  carry  into  effect,  according  to  the 
true  intent  and  meaning  thereof,  the  award,  or  arbitration,  or  decree 
of  any  consul,  vice-consul,  or  commercial  agent  of  any  foreign  na- 
tion, made  or  rendered  by  virtue  of  authority  conferred  on  him  as 
such  consul,  vice-consul,  or  commercial  agent,  to  sit  as  judge  or 
aribtrator  in  such  differences  as  may  arise  between  the  captains 
and  crews  of  the  vessels  belonging  to  the  nation  whose  interests 
are  committed  to  his  charge;  application  for  the  exercise  of  such 
power  being  first  made  to  such  court  or  commissioner  by  petition 
of  such  consul,  vice-consul,  or  commercial  agent. 
Part  of  R.  S.  §  728,  U.  S.  Comp.  Stat.  1901,  p.  584. 

The  section  of  the  Revised  Statutes  of  which  the  above  provision  is  a 
part,  was  originally  enacted  in  1846.17  The  office  of  circuit  court  commis- 
sioner is  abolished  by  an  act  of  1896,18  and,  the  office  of  United  States 
commissioner  takes  its  place.  The  above  provision  embraces  all  consular 
agents  whose  government  gives  them  jurisdiction;  but  neither  under  in- 
ternational law  nor  under  the  United  States  statute  law  has  such  a  con- 
sular agent  the  right  to  sit  as  judge  unless  the  consent  of  the  United 
States  has  been  given   either  by   express  statute   or  treaty  stipulation.! a- 

§  159.     Jurisdiction  to  mandamus  Union  Pacific  Railroad. 

The  proper  circuit  court  of  the  United  States  shall  have  juris- 
diction to  hear  and  determine  all  cases  of  mandamus  to  compel 
said  Union  Pacific  Railroad  Company  to  operate  its  road  as  required 
by  law. 

R.  S.  §  5262,  U.  S.  Comp.  Stat.  1901,  p.  3577. 

The  above  section  was  carried   into  the  Revised   Statutes   from  an   act 

i^See  Ex  parte  Bvers,  32  Fed.  404.        isAct  May  28,  1896,  c.  252,  §   19. 
isUnited  States  v.  Rogers,  46  Fed.    See  post,  §  671. 
3-  19  In  re  Aubrey,  26  Fed.  850. 

1  'Act  Aug.  8, 1846,  c.  105, 9  Stat.  78. 

373 


S   IGO  CIRCUIT    COURT—  [Code  Fed. 

of  1873.1  It  was  passed  betiiuse  the  circuit  court  has  no  such  jurisdiction 
unless  especially  conferred  by  statute. 2  So  far  as  the  railroad  owes  du- 
ties to  the  general  public  enforceable  by  mandamus  the  proceedings  should 
be  instituted  by  the  attorney  general,  but  where  the  duty  neglected  is 
one  which  the  company  owes  tlie  public,  and  individuals  suffer  from  such 
neglect,  the  court  should  not  refuse  the  writ  merely  because  the  attorney 
general  does  not  move  for  it. 3 

§  160.     Removal  of  suits  by  aliens  against  Federal  officers. 

Whenever  a  personal  action  has  been  or  shall  be  brought  in  any 
State  court  by  an  alien  against  any  citizen  of  a  State  who  is,  or  at 
the  time  the  alleged  action  accrued  was,  a  civil  officer  of  the  United 
:States,  being  a  non-resident  of  that  State  wherein  Jurisdiction  is 
obtained  by  the  State  court,  by  personal  service  of  process,  such 
action  may  be  removed  into  the  circuit  court  of  the  United  States 
in  and  for  the  district  in  which  the  defendant  shall  have  b,;;n 
served  with  the  process,  in  the  same  manner  as  now  provided  for 
the  removal  of  an  action  brought  in  a  State  court  by  the  provisions 
cof  the  preceding  section.'* 

R.  S.  §  644,  U.  S.  Comp  .Stat.  1901,  p.  523. 
This  section  was  carried  into  the  Revised  Statutes  from  an  act  of  1872.5 

§  161.     Jurisdiction  of  circuit  courts  over  creditors'  bills  affect- 
ing national  banks. 
By  an  act  of  187(3  creditors'  bills  may  be  maintained  in  equity  in 
the  proper  Federal  court  to  subject  assets  to  payment  of  claims  or 
to  enforce  stockholder's  liability.'^ 
Author's  section. 

§  162  —  of  suits  respecting  trademarks. 

The  circuit  and  territorial  courts  of  the  United  States  and  the 
supremo  court  of  the  District  of  Columbia  shall  have  original  jur- 
isdiction ...  of  all  suits  at  law  or  in  equity  respecting  trade- 
marks  registered  in   accordance   with   the  provisions   of  this   act, 

lAct   March    3,    1873.   c.    22G,    §    4,  515.    Fed.    Cas.    No.    5,950.     See  also 

17  Stat.  .509.  People  v.  Colorado,  etc.  R.  Co.  42  Fed. 

2People    V.    Colorado,    etc.    R.    Co.  ()3S. 

42  Fed.  638;   United  States  v.  Union  '•See  post.  §  1146. 

Pac.    R.    Co.    3    Dill.    .524.    Fed.    Cas.  sAct    March     30,    1872,    c.    72,   17 

No.   16,600.  Stat.   44. 

3Hall  V.  Union  Pac.  R.  Co.  3  Dill.  "See  post,  §  964. 

374 


Procedure]  JURISDICTION.  §    IdV. 

arising  under  the  present  act,  without  regard  to  the  amount  in 
controversy. 

Part  of  §  17,  act  Feb.  20,  1905,  c.  592,  33  Stat.  728,  U.  S.  Comp.  Stat. 
1905,  p.  675. 

The  omitted  portion  of  the  section  provides  the  appeHate  jurisdiction. s 
Other  portions  of  the  act  are  to  be  found  in  the  chapter  on  procedure  in 
trademark  cases.  9 

§  163.  —  of  circuit  and  district  courts  over  proceedings  under 
civil  rights  act  of  1875. 

The  district  and  circuit  courts  of  the  United  States  shall  have, 
exclusively  of  the  courts  of  the  several  States,  cognizance  of  all 
crimes  and  offenses  against,  and  violations  of,  the  provisions  of 
this  act;  and  actions  for  the  penalty  given  by  the  preceding  sec- 
tion may  be  prosecuted  in  the  territorial,  district,  or  circuit  courts 
of  the  United  States  wherever  the  defendant  may  be  found,  without 
regard  to  the  other  party;  and  the  district  attorneys,  marshals,  and 
deputy  marshals  of  the  United  States,  and  commissioners  appointed 
by  the  circuit  and  territorial  courts  of  the  United  States,  with  powers 
of  arresting  and  imprisoning  or  bailing  offenders  against  the  laws 
of  the  United  States,  are  hereby  specially  authorized  and  required 
to  institute  proceedings  against  every  person  who  shall  violate  the 
provisions  of  this  act,  and  cause  him  to  be  arrested  and  imprisoned 
or  bailed,  as  the  case  may  be,  for  trial  before  such  court  of  the 
United  States,  or  territorial  court,  as  by  law  has  cognizance  of  the 
offense,  except  in  respect  of  the  right  of  action  accruing  to  the  per- 
son aggrieved ;  and  such  district  attorneys  shall  cause  such  proceed- 
ings to  be  prosecuted  to  their  termination  as  in  other  cases :  Pro- 
vided, That  nothing  contained  in  this  section  shall  be  construed  to 
deny  or  defeat  any  right  of  civil  action  accruing  to  any  person, 
whether  by  reason  of  this  act  or  otherwise;  and  any  district  attor- 
ney who  shall  wilfully  fail  to  institute  and  prosecute  the  proceed- 
ings herein  required,  shall,  for  every  such  offense,  forfeit  and  pay 
the  sum  of  five  hundred  dollars  to  the  person  aggrieved  thereby,  to 
be  recovered  by  an  action  of  debt,  with  full  costs,  and  shall,  on  con- 
viction thereof,  be  deemed  guilty  of  a  misdemeanor,  and  be  fined 
not  less  than  one  thousand  nor  more  than  five  thousand  dollars : 
And  provided  further.  That  a  judgment  for  the  penalty  in  favor  of 

sAnte.   §   87. 

9Po6t,  §  1177,  et  seq. 

375 


§   164  CIRCUIT  COURT— JURISDICTION.  [Code  Fed. 

the  party  aggrieved  against  any  such  district  attorney,  or  a  judg- 
ment upon  an  indictment  against  any  such  district  attorney,  shall 
be  a  bar  to  either  prosecution  respectively. 

§  3  of  act  Mar.  1,  1875,  c.  114,  18  Stat.  336,  U.  S.  Comp.  Stat.  1901,  p. 
1260. 

The  first  and  second  sections  of  the  act  have  been  declared  unconstitn- 
tional2i  and  it  may  be  questioned  whether  the  foregoing  provision  is  in 
force.  General  jurisdiction  over  suits  for  violation  of  civil  rights  is  con- 
ferred upon  the  district22  and  circuit23  courts  by  provisions  of  the  Re- 
vised Statutes. 

§  164.  — jurisdiction  over  naturalization  proceedings. 

Exclusive  jurisdiction  to  naturalize  aliens  as  citizens  of  the 
United  States  is  hereby  conferred  upon  the  following  specified 
courts : 

United  States  circuit  and  district  courts  now  existing,  or  which 
may  hereafter  be  established  by  Congress  in  any  State,  United 
States  district  courts  for  the  Territories  of  Arizona,  New  Mexico, 
Oklahoma,  Hawaii,  and  Alaska,  the  supreme  court  of  the  District 
of  Columbia,  and  the  United  States  courts  for  the  Indian  Terri- 
tory; also  all  courts  of  record  in  any  State  or  Territory  now  exist- 
ing, or  which  may  hereafter  be  created,  having  a  seal,  a  clerk,  and 
jurisdiction  in  actions  at  law  or  equity,  or  law  and  equity,  in  which 
the  amount  in  controversy  is  unlimited. 

The  naturalization  jurisdiction  of  all  courts  herein  specified. 
State,  Territorial,  and  Federal,  shall  extend  only  to  aliens  resident 
within  the  respective  judicial  districts  of  such  courts. 

The  courts  herein  specified  shall,  upon  the  requisition  of  the 
clerks  of  such  courts,  be  furnished  from  time  to  time  by  the  Burea.u 
of  Immigration  and  Naturalization  with  such  blank  forms  as  may 
be  required  in  the  naturalization  of  aliens,  and  all  certificates  of 
naturalization  shall  be  consecutively  numbered  and  printed  on  safety 
paper  furnished  by  said  Bureau. 

§  3,  act  June  29,  190«,  c.  3592,  34  Stat.  596. 

The  procedure  for  naturalization  provided  by  the  act  of  1906  is  set 
forth  in  a  subsequent  portion  of  this  Code.  2  5 

2iCivil  Rights  Cases.  109  U.  S.  25,  23Ante.  §  127. 

27  L.  ed.  835,  3  Sup.  Ct.  Rep.  18.  2  5 Post,  §  2380,  et  seq. 
2  2  Post,  §  203,  et  seq. 

376 


■ 


CHAPTEK  6. 

THE   DISTRICT    COURT— ORGANIZATION   AND    POWERS. 


§  166.  Various  cross-references. 

§  167.  Appointment   of  district  judges  for  various  districts. 

§  168.  In  some  cases  one  judge  for  two  or  more  districts. 

§  160.  In  some  cases  two  or  more  district  judges  in  a  district. 

§  170.  Circuit  judge  may  act  for  district  judge  in  Tennessee. 

§  171.  — in  Oregon. 

§  172.  Another  district  judge  may  be  designated  to  act  for  disabled  judge. 

§  173.  Designation  of  additional  district  judge  to  assist  with  accumulated 
business. 

§  174.  When  Chief  Justice  shall  make  such  designation. 

§  175.  When  new  designations  and  appointments  may  be  made. 

§  176.  Duty  of  district  judge  to  comply  with  designation. 

§  177.  Duty  of  circuit  judge  to  designate  and  of  district  judge  to  act. 

§  178.  Judge  of  one  Florida  district  to  act  in  other  in  case  of  disability. 

§  179.  What  district  judge  to  act  in  case  of  disability  in  a  New  York  dis- 
trict. 

§  180.  District  judge  of  Eastern  New  York  district  may  sit  in  Southern. 

§  181.  Continuances  by  vacancy  in  office  of  district  judge. 

§  182.  But  another  district  judge  in  state  may  act  in  vacant  district. 

§  183.  District  court  clerk's  power  to  make  orders,  etc.,  in  admiralty, 
during  judge's  disability. 

§  184.  Assignment  of  judge  for  northern  district  of  Alabama. 

§  166.     Various  cross-references. 

Provisions  respecting  the  salaries  and  expenses  of  district  judges/ 
and  their  qualification  and  tenure  of  office,^  will  be  found  elsewhere ; 
also  provisions  respecting  clerks,  marshals  and  bailiffs.^  In  some 
instances  Congress  has  conferred  jurisdiction  in  general  terms  upon 
circuit  and  district  courts  and  the  statutory  provisions  in  question 
are  embodied  in  a  preceding  chapter.^ 
Author's  section. 


iPost,  §§  469.  473-475.  sPost.    §§   .567.  et  seq: 

2Po&t,  §  467.  4Ant«,  §§  150-158,  163. 


§    167  THE  DISTRICT  COUltT.  [Code  Fed. 

§  167.     Appointment  of  district  judges  for  various  districts. 

A  district  judge  shall  be  appointed  for  each  district,  except  in 
the  cases  hereinafter  provided.     Every  such  judge  shall  reside  in 
the  district  for  which  he  is  appointed,  and  for  offending  against  this 
provision  shall  be  deemed  guilty  of  a  high  misdemeanor. 
R.  S.  §  551,  U.  S.  Comp.  Stat.  1901,  p.  44G. 

Subsequent  statutes  establishing  additional  judicial  districts  contain 
provisions  for  the  appointment  of  additional  jud<>es  therefor.'  So  also 
the  acts  admitting  new  States  into  the  Union  constitute  each  State  a  ju- 
dicial district,  and  provide  for  the  appointment  of  a  district  judge.  In 
some  districts  the  appointment  of  an  additional  district  judge  has  been 
authorized.!*  The  judicial  districts  of  each  State  and  the  divisions  thereof, 
are  given  in  a  following  chapter. f'  Besides  the  above  requirement  that 
every  district  judge  shall  reside  in  the  district  for  which  he  is  appointed, 
every  clerk  of  the  circuit  or  district  court,io  marshal, n  and  district  at- 
torneyi2  is  required  to  reside  permanently  in  the  district  in  which  hia 
official  duties  are  to  be  performed. 

§  168.     In  some  cases  one  judge  for  two  or  more  districts. 

There  shall  be  appointed  in  each  of  the  States  of  Alabama, 
Oeorgia,  Mississippi,  South  Carolina,  and  Tennes.see,  one  district 
judge,  who  shall  be  district  judge  for  each  of  the  districts  included 
in  the  State  for  which  he  is  appointed,  and  shall  reside  within  some 
one  of  the  said  districts.  And  for  offending  against  this  provision, 
such  judges  shall  be  liable  as  in  the  preceding  section. 
R.  S.  §  552,  U.  S.  Comp.  Stat.  1901,  p.  447. 

Alabama  and  Tennessee  are  divided  into  three  districts;  and  South 
Carolina,  Georgia  and  Mississippi  into  two  each.i*  An  act  of  1SS215  gave 
Georgia  a  district  judge  for  each  district.  A  statute  of  187816  gave  Ten- 
nessee a  district  judge  for  the  western  District,  the  older  appointee  continu- 
ing to  have  jurisdiction  in  the  middle  and  eastern  districts.  An  act  of 
18861^  gave  Alabama  a  new  district  judge  in  the  southern  district  and  con- 
tinued the  powers  of  the  existing  judge  in  the  middle  and  northern  dis- 
tricts. 

§  169.     In  some  cases  two  or  more  district  judges  in  a  district. 

In  the  southern  district  of  Xew  York  tliere  are  now  three  dis- 

"See    U.    S.   Comp.   Stat.    1901,    p.  uPost,  §  G23. 

.316-446    passim;    also    U.    S.    Comp.  isPo.st,   8   506. 

Stat.  1905,  p.  89.  112,  120.  i4Post,   S§  2.57,  263,  274,  284.  286. 

sPost,   §   170.  15 Act  April  25,  1882,  c.  87. 

9Post.  §§  257,  et  seq,  isAct  June  14.  1878,  c.  196. 

loPost,  §  571.  I'Act  Aug.  2,  1886,  c.  842. 

378 


I 


Procedure]  ORGANIZATION  AND  POWERS.  §   1T2 

trict  judges.^ ^  In  the  Minnesota  district,  i^  in  the  northern  dis- 
trict of  Illinois,2o  eastern  district  of  Pennsylvania/  the  district  of 
Xew  Jersey.2  and  the  northern  district  of  Texas-''  there  are  two  dis- 
trict judges.  But  the  law  authorizing  the  additional  judge  in  the 
Texas  district  provided  that  no  vacancy  in  the  office  of  the  then 
■existing  district  judge  should  be  filled  and  after  such  vacancy  the 
district  should  have  only  one  district  judge.^ 
Author's  section. 

§  170.     Circuit  judge  may  act  for  district  judge  in  Tennessee. 

In  the  case  of  the  non-attendance  of  the  district  judge  of  Ten- 
nessee at  any  term  of  the  district  court  in  either  of  the  districts 
tliereof,  the  circuit  justice,  or  circuit  judge  of  the  circuit  to  which 
such  district  belongs,  may  hold  such  term,  and  shall  have  and  exer- 
cise the  jurisdiction  and  powers  given  by  law  to  a  district  judge. 
R.  S.  §  582,  U.  S.  Comp.  Stat.  1901.  p.  477. 

By  an  act  of  1878,6  a  district  judge  was  appointed  for  the  western  dis- 
trict of  Tennessee  so  that  there  are  now  two  district  judges  instead  of  one. 

§  171  — in  Oregon. 

In  case  of  the  absence  of  the  United  States  district  judge  for  thv? 
district  of  Oregon  from  said  district,  or  of  his  disability,  a  circuit 
judge  of  the  United  States  of  the  circuit  to  which  such  district  be- 
longs may  hold  the  district  court  and  perform  the  duties  of  the  dis- 
trict judge. 

Act  Apr.  28,  1904,  c.  1775,  33  Stat.  .527,  U.  S.  Comp.  Stat.  1905,  p.  138. 

§  172.  Another  district  judge  may  be  designated  to  act  for  dis- 
abled judge. 
When  any  district  judge  is  prevented,  by  any  disability,  from 
holding  any  stated  or  appointed  term  of  his  district  court,  or  of  the 
circuit  court  in  his  district  in  the  absence  of  the  other  judges, 
and  that  fact  is  made  to  appear  by  the  certificate  of  the  clerk,  under 

18 Act  Feb.  9,  1903.  c.  527,  32  Stat.  neces.sary  orders   for   the   division   of 

805;    act    Mav    26.    190().    c.   2557.   34  business  and  assignment  of  cases. 

Stat.  202.        "  -'^-^ct  March  3,  1905.  c.  1427,  §  2. 

iii*~i.~^  1     A    irvrto         ^A.    OT  et   4.  ^Act  April    1.   1904.   c.   851. 

-l^t  ^'^-  \  'T-  '•  ^^-:  f  .    .^  :  2Act  Mluoh  3.  1905.  c.  1418. 

/ns.     The  act  further  provided  that  3^^^   y^\^    9    1898,  c.   15,  30  Stat, 

tlie  senior  circuit  jvidge  of  the  eighth  940. 

<"ircuit  or  the  resident   circuit   judge  4lbid. 

within   the    district    shall    make  all  «Act  June   14.   1878.   c.    196. 

379 


§   173  THE   DISTRICT   COURT.  [Code  Fed. 

the  seal  of  the  court,  to  the  circuit  judge,  or,  in  his  absence, 
to  the  circuit  justice  of  the  circuit  in  which  the  district  lies,  such 
circuit  judge  or  justice  may,  if  in  his  judgment  the  public 
interests  so  require,  designate  and  appoint  the  judge  of  any  other 
district  in  the  same  circuit  to  hold  said  courts,  and  to  discharge 
all  the  judicial  duties  of  the  judge  so  disabled,  during  such  dis- 
ability. Such  appointment  shall  be  filed  in  the  clerk's  office,  and 
entered  on  the  minutes  of  the  said  district  court,  and  a  certified 
copy  thereof,  under  the  seal  of  the  court,  shall  be  transmitted  by 
the  district  clerk  to  the  judge  so  designated  and  appointed. 
R.  S.  §.  591,  U.  S.  Comp.  Stat.  1901,  p.  480. 

There  is  a  special  provision  in  the  case  of  the  northern  district  of 
Alabama.7  Under  the  above  provision  the  circuit  justice  or  judge  may  ap- 
point an  outside  district  judge  to  hold  both  the  circuit  and  the  district 
courts. 8  Such  judge  when  so  appointed  is  judge  de  jure,  of  the  district. 
If  upon  the  death  of  the  disabled  judge,  he  holds  court  until  a  successor 
is  appointed,  he  is  at  least  a  judge  de  facto  during  that  time  and  his  acts 
are  not  open  to  collateral  attack. 9  While  the  section  provides  that  the  ap- 
pointment should  be  filed  in  the  clerk's  office,  the  filing  is  not  essential 
to  the  validity  thereof. lo 

§  173.  Designation  of  additional  district  judge  to  assist  with 
accumulated  business. 
When,  from  the  accumulation  or  urgency  of  business  in  any  dis- 
trict court,  the  public  interest  require  the  designation  and  appoint- 
ment hereinafter  provided,  and  the  fact  is  made  to  appear,  by  the 
certificate  of  the  clerk,  under  the  seal  of  the  court,  to  the  circuit 
judge,  or,  in  his  absence,  to  the  circuit  justice  of  the  circuit  in  which 
the  district  lies,  such  circuit  judge  or  justice  may  designate  and  ap- 
point the  judge  of  any  other  district  in  the  same  circuit  to  have  and 
exercise  within  the  district  first  named  the  same  powers  that  are 
vested  in  the  judge  thereof;  and  each  of  the  said  district  judges 
may,  in  case  of  such  appointment,  hold  separately  at  the  same  time 
a  district  or  circuit  court  in  such  district,  and  discharge  all  the 
judicial  duties  of  a  district  judge  therein ;  but  no  such  judge  shall 
hear  appeals  from  the  district  court. 

R.  S.  §  592,  U.  S.  Comp.  Stat.   1901,  p.  481. 


■jPost.  §  184.  118,  35  L.  ed.  377,  11  Sup.  Ct.  Rep. 

sNational  Home,  etc.  v.  Butler,  33    761. 
Fed.  374.  lONational    Home,   etc.    v.    Butler, 

sBall  V.  United  States,  140  U.   S.    33  Fed.  374. 

3S0 


I 
I 


Procedure]  ORGANIZATION  AND  POWERS.  {  177 

§  174.     When  Chief  Justice  shall  make  such  designation. 

If  the  circuit  judge  and  circuit  justice  are  absent  from  the  cir- 
cuit, or  are  unable  to  execute  the  provisions  of  either  of  the  two 
preceding  sections,  or  if  the  district  judge  so  designated  is  disabled 
or  neglects  to  hold  the  courts  and  transact  the  business  for  which  he 
is  designated,  the  district  clerk  shall  certify  the  fact  to  the  Chief 
Justice  of  the  United  States,  who  may  thereupon  designate  and  ap- 
point, in  the  manner  aforesaid,  the  judge  of  any  district  within  such 
circuit  or  within  any  circuit  next  contiguous;  and  said  appoint- 
ment shall  be  transmitted  to  the  district  clerk,  and  be  acted  upon 
by  him  as  directed  in  the  preceding  section. 
R.  S.  §  593,  U.  S.  Comp.  Stat.  1901,  p.  481. 

§  175.     When  new  designations  and  appointments  may  be  made. 

The  circuit  judge,  or  circuit  justice,  or  the  Chief  Justice,  as  the 
case  may  be,  may,  from  time  to  time,  if  in  his  judgment  the  public 
interests  so  require,  make  a  new  designation  and  appointment  of 
and  other  district  judge  within  the  said  circuits,  for  the  duties, 
and  with  the  powers  mentioned  in  the  three  preceding  sections,  and 
to  revoke  any  previous  designation  and  appointment. 
R.  S.  §  594,  U.  S.  Comp.  Stat.  1901,  p.  481. 

§  176.     Duty  of  district  judge  to  comply  with  designation. 

It  shall  be  the  duty  of  the  district  judge  who  is  designated  and 
appointed  under  either  of  the  four  preceding  sections,  to  discharge 
all  the  judicial  duties  for  which  he  is  so  appointed,  during  the  con- 
tinuance of  such  disability,  or,  in  the  case  of  an  accumulation  of 
business,  during  the  time  for  which  he  is  so  appointed ;  and  all  the 
acts  and  proceedings  in  the  courts  held  by  him,  or  by  or  before  him, 
in  pursuance  of  said  provisions,  shall  have  the  same  effect  and 
validity  as  if  done  by  or  before  the  district  judge  of  the  said  district. 
R.  S.  §  595,  U.  S.  Comp.  Stat.  1901,  p.  482. 

§  177.  Duty  of  circuit  judge  to  designate  and  of  district  judge 
to  act. 
It  shall  be  the  duty  of  every  circuit  judge,  whenever  in  his  judg- 
ment the  public  interest  so  requires,  to  designate  and  appoint,  in 
the  manner  and  with  the  powers  provided  in  section  five  hundred 
and  ninety-one,^  the  district  judge  of  any  judicial  district  within 

lAnte,  §  172. 

381 


S    ITS  TIIK  DISTIMCT    t'OrUT.  [Code   Fed. 

liis  circuit  to  liold  a  ilistrict  or  cii'cuit  court  in  the  place  or  in  aid 
of  any  other  district  judge  within  tlie  same  circuit;  and  it  shall  be: 
the  duty  of  the  district  judge  so  designated  and  appointed,  to  hohl 
the  district  or  circuit  as  aforesaid,  without  any  other  com- 
pensation than  his  regular  salary  as  established  by  law,  except  in 
the  case  provided  in  the  next  section. ^ 

R.  S.  §  596,  U.  S.  Comp.  Stat.  1001,  p.  482. 

The  omission  of  the  word  "court"'  after  the  words  '"district  or  circuit" 
in  the  last  clause  is  apparently  unintentional.  By  an  act  of  1881,3  so  much 
of  the  above  provision  as  forbids  the  payment  of  the  expenses  of  district 
judges  while  holding  court  outside  of  their  districts,  is  expressly  repealed. 

The  provision  gives  the  circuit  judge  power  to  act  whenever  in  his 
judgment  the  public  interests  require, ■>  and  this  power  apparently  extends 
to  an  appointment  of  a  judge  to  fill  an  existing  vacancy. 5  In  any  event  a 
judge  so  appointed  is  judge  de  facto  if  not  de  jure,  and  his  actions  are  not 
open  to  question  so  far  as  they  affect  third  persons. 6  It  contemplates  that 
an  appointment  made  under  it  should  state  what  court  the  appointee  is  to 
hold  and  whether  it  is  in  place  of  the  district  judge  or  in  aid  of  him." 

§  178.     Judge  of  one  Florida  district  to  act  in  other  in  case  of 
disability. 

When  a  certificate  of  the  judge  of  either  of  the  districts  of  Florida, 
stating  that  he  is  disabled  to  hold  any  regular,  special,  or  adjourned 
term  of  the  court  of  such  district,  and  requesting  the  judge  of  the 
other  district  to  hold  the  same,  is  filed  in  the  clerk's  office  of  the 
place  where  it  is  to  be  held,  the  judge  of  the  other  district  is  au- 
thorized to  hold  such  courts,  and  to  exercise  all  the  powers  of  district 
judge,  in  the  district  of  the  judge  so  certifying. 
R.  S.  §  598,  U.  S.  Comp.  Stat.  1901,  p.  483. 

This    provision    was    originally    enacted    in    1855.9 

§  179.     What  district  judge  to  act  in  case  of  disability  in  a 
New  York  district. 
Whenever  the  judge  of  the     northern  district  of  Xew  York  is 
disabled  to  perform  the  duties  of  his  office,  it  shall  be  the  duty  of 

2Post,  §  473.  V.  S.  596,  40  L.  ed.  271.  16  Sup.  (  t. 

3Mareh    3,    1881,    c.    133.   21    Stat.  Rep.  111. 
454.  'Ball   V.  United   States.    140  U.   S. 

^McDowell    V.    Ignited    States,    159  128.  35  L.  ed,  382,   11    Sup.  Ct.  Rep. 

U.  S.  596.  40  L.  ed.  271,  16  Sup.  Ct.  761:   National  Home,   etc.  v.  Butler. 

Rep.   111.  33  Fed.  374. 

sTdem;    see   also   United    States   v.         SAct  Feb.  24,  1855,  c.  125,  10  Stat. 

Murphv.  82  Fed.  896.  615. 

cMcbowell    V.    United    States,    159 

382 


Proceaure]  ORGANIZATION  AND  POWERS.  §   183 

the  judge  of  the  southern  district,  upon  receiving  from  liini  notice 
thereof,  to  hold  the  district  court,  and  to  perform  all  the  duties 
of  district  judge  for  such  district.  And  whenever  the  judge  of  the 
southern  district  is  so  disabled,  it  shall  be  the  duty  of  the  judge 
of  the  eastern  district,  upon  like  notice,  to  hold  the  district  court, 
and  to  perform  all  the  duties  of  district  judge  for  the  southern  dis- 
trict. In  such  cases  the  said  judges,  respectively^  shall  have  the 
same  powers  as  are  vested  in  the  judge  so  disabled. 
R.  S.  §  599,  U.  S.  Comp.  Stat.  1901,  p.  483. 

§  180.     District  judge  of  eastern  New  York  district  may  sit  in 
southern. 

Whenever  the  judge  of  the  soutliern  district  of  Xew  York  deems 
it  desirable,  on  account  of  the  pressure  of  public  business  or  othei- 
cause,  that  the  judge  of  the  eastern  district  sliall  perform  the  duties 
of  a  district  judge  in  the  southern  district,  an  order  to  that  effect 
may  be  entered  upon  tlie  records  of  the  district  court  thereof ;  and 
thereupon  the  judge  of  the  eastern  district  shall  have  power  to  hold 
the  district  court,  and  to  perform  all  the  duties  of  district  judge  for 
the  southern  district. 

R.  S.  §  600,  U.  S.  Comp.  Stat.  1901,  p.  483. 

This  section  was  carried  into  the  Revised  Statutes  from  an  act  of 
1865.12 

§  181.     Continuances  by  vacancy  in  office  of  district  judge. 

When  the  office  of  judge  of  any  district  court  is  vacant,  all  process, 
pleadings,  and  proceedings  pending  before  such  court  shall  be  con- 
tinued of  course  until  the  next  stated  term  after  the  appointment 
and  qualification  of  his  successor;  except  when  such  first-mentioned 
term  is  held  as  provided  in  the  next  section. 
R.  S.  §  602,  U.  S.  Comp.  Stat.  1901,  p.  484. 

The  exception  above  stated  relates  to  a  vacancy  in  any  district  in  a 
State  containing  two  or  more  districts  and  does  not  apply  where  there  is 
only  one  district  in  a  State.  Hence  in  the  latter  case,  during  a  vacancy 
in  the  office  of  judge  of  the  district  court,  all  judicial  action  must  remain 
in  abeyance  uritil  the  vacancy  be  filled,  unless  a  judge  shall  have  been  ap- 
pointed pursuant  to  law  to  e.xenise  dnring  the  vacancy,  the  powers  and 
duties   of    a   district   judge. '^      Wliethor    the    law   authorizes   such   an    ap- 

i2Aet  Feb.  25,  1865.  c.  54.  13  Stat.  i^Lnitcd  States  v.  Murphv,  82  Fed. 
438.  S96. 

383 


§   182  THE  DISTRICT  COURT.  [Code  Fed. 

pointiuent  is  not  altogether  cloar.is  The  section  is  remedial,  and  its 
general  purpose  is  that  the  administration  of  justice  by  a  district  court 
shall  not,  through  a  vacancy  in  the  office  of  judge,  be  defeated  or  unduly 
impeded.  16  The  term  "process"  while  not  including  the  whole  cause,  em- 
braces among  other  things,  all  means  provided  by  law  for  compelling  one 
arrested  and  held  on  a  criminal  charge  to  appear  in  court.  Imprisonment 
under  a  commitment  by  a  commissioner  to  answer  a  criminal  charge  is 
"process."  "Process  pending  before"  the  court  includes  process  the  object 
of  which  has  not  been  fully  accomplished.!  7  A  recognizance  is  such  process. 
The  application  of  this  section  to  a  recognizance,  executed  after  its  enact- 
ment, does  not  in  any  legal  sense  either  extend  the  undertaking  of,  or 
impose  additional  burdens  upon  the  recognizors.! 8 

§  182.     But  another  district  judge  in  State  may  act  in  vacant 
district. 
When  the  office  of  district  judge  is  vacant  in  any  district  in  a 
State  containing  two  or  more  districts,  the  judge  of  the  other  or 
of  either  of  the  other  districts  may  hold  the  district  court,  or  the  cir- 
cuit court  in  case  of  the  sickness  or  absence  of  the  other  judges 
thereof,  in  the  district  where  the  vacancy  occurs,  and  discharge  all 
the  judicial  duties  of  judge  of  such  district,  during  such  vacancy; 
and  all  the  acts  and  proceedings  in  said  courts,  by  or  before  such 
judge  of  an  adjoining  district,  shall  have  the  same  effect  and  valid- 
ity as  if  done  by  or  before  a  judge  appointed  for  such  district. 
R.  S.  §  603,  U.  S.  Pomp.  Stat.  1901,  p.  484. 

This  provision  was  enacted  in  1861.1  It  applies  only  when  a  vacancy  ex- 
ists. If  a  district  judge  is  merely  out  of  the  State  leave  to  institute  suit 
against  a  receiver,  granted  by  a  district  judge  of  another  district  is  of  no 
effect.  2 

§  183.  District  court  clerk's  power  to  make  orders,  etc.,  in  ad- 
miralty during  judge's  disability. 
When  the  business  of  a  district  court  is  certified  into  the  circuit 
court  on  account  of  the  disability  of  the  district  judge,  the  district 
clerk  shall  be  authorized,  by  order  of  the  circuit  judge,  or,  in  his  ab- 
sence, of  the  circuit  justice  within  whose  circuit  such  district  is 
included,  to  take,  during  such  disability,  all  examinations  and  depo- 

15 See  McDowell  v.  United   States,        isidem. 
159  U.  S.  596.  40  L.  ed.  272,  16  Sup.        lAct  Aug.  6,   1861,  c.  59,  12  Stat. 

Ct.  Rep.  111.  318. 

i6United  States  v.  Murphy,  82  Fed.        2 American,  etc.  Co.  v.  East,  etc.  R. 

896.  Co.  40  Fed.  182. 

IT  United  States  v.  Murphy,  82  Fed. 
flOO. 

384 


I 


Procedure]  ORGANIZATION  AND  POWERS.  §   184 

sitions  of  witnesses,  and  make  all  necessary  rules  and  orders,  pre- 
paratory to  the  final  hearing  of  all  causes  of  admiralty  and  mari- 
time jurisdiction. 

R.  S.  §  590,  as  amended  in  1875,  U.  S.  Comp.  Stat.  1901,  p.  480. 

The  amendment  of  1875  consisted  in  the  insertion  of  the  word  "dis- 
trict" where  it  occurs  in  the  first  line  instead  of  the  word  "circuit,"  in 
the  section  as  originally  enacted.-* 

§  184.     Assignment  of  judge  for  northern  district  of  Alabama. 

Whenever  the  judge  for  the  northern  district  of  Alabama  deems 
it  advisable,  on  account  of  disability  or  absence,  or  of  the  accumu- 
lation of  business  therein,  or  for  any  other  cause,  that  said  court 
should  be  held  by  the  judge  of  some  other  district  or  circuit  court, 
he  shall,  in  writing,  request  the  presiding  judge  for  the  fifth  judicial 
circuit  of  the  United  States  to  assign  a  judge  to  hold  the  term  or 
terms  of  said  court. 

§  2  act  Apr.  14,  1906,  c.  16-25,  34  Stat.  114. 

4Act  Feb.  18,  1875,  c.  18,  18  Stat. 
317. 


Fed.  Proc— 25.  385 


CHAPTER  7. 

THE  DISTRICT  COURT— .JURISDICTION. 

§  193.  Jurisdiction  over  Federal  crimes  and  offenses. 

§  194.  .Jurisdiction  over  piracy. 

§  195.  Over  suits  for  penalties  and  forfeitures. 

S  196.  Over  common  law  suits  by  the  United  States  or  its  officer. 

§   197.  Over  equity  suits  to  enforce  lien   for  revenue  tax. 

§  198.  Over  suits  for  forfeitures  for  debts  to  United  States. 

§  199.  Over  actions  under  postal  laws. 

§  200.  Over  admiralty  causes  and  non  admiralty   seizures 

§  201.  Over  proceedings   for   condemnation  as  prize. 

§  202.  Over  suits  on  debentures  for  drawback  of  duties. 

§  203.  Over  suits  for  damages  for  conspiracy  against  civil  rights. 

S  204.  Over  suits  to  redress  deprivation  of  Federal  right. 

§  205.  Suits  to  recover  office  where  denial  of  Federal  rights  involved.       , 

§  206.  Over  quo  warranto  suits  against  ofHce  holders  contrary  to  Four- 
teenth Amendment. 

§  207.  Suits  by  or  against  national  banks. 

§  208.  Suits  by  aliens  for  tort  against  treaty  or  law  of  nations. 

§  209.  Over  .suits  against  consuls. 

S  210.  In  Bankruptcy. 

§  211.  Over  prosecutions  for  violation  of  sealing  laws. 

§  212.  Concurrent  jurisdiction  with  Court  of  Claims. 

§  213.  .lurlsdiction  in   cases  transferred  from  Territorial  courts, 

§  214.  .lurisdiction  under  interstate  commerce,  alien  immigrant,  and  alien 
enemies   laws. 

§  215.  Jurisdiction  as  to  suits  for  unlawful  indosure  of  public  lands,  and 
for  condemnation,  and  over  crimes  upon  South  Dakota  res- 
ervations and  upon  great  lakes,  etc. 

§  21G.  -lurisdictioTi  over  offenses  against  submarine  cable  law. 

§  193.     Jurisdiction  over  Federal  crimes  and  offenses. 

The  district  courts  shall  have  jurisdiction  as  follows: 
First.  Of  all  crimes  and  offenses  cognizable  under  the  authority 
of  the  United  States,  committed  within  their  respective  districts, 
or  upon  the  high  seas,  the  punishment  of  which  is  not  capital,  ex- 

386 


I'roeeduie]  JURISDICTION   OVER   PIRACY.  I   194 

cept  ill  the  eases  mentioned  in  section  fifty-four  hundred  and  twelve. 
Title  "Crimes." 

First  paragraph  R.  S.  §  563,  U.  S.  Comp.  Stat.  1901,  p.  455. 

Other  sections  of  the  Revised  Statutes  provide  for  the  transfer  of 
criminal  cases  from  the  district  to  the  circuit  court,  where  difficult  ques- 
tions of  law  are  involved,  or  in  capital  cases;  and  also  provide  generally  for 
the  transfer  of  causes  to  or  from  the  circuit  courts  from  or  to  the  district 
eourts.i  R.  S.  §  5412,  aboA'e  referred  to.  makes  punishable  the  act  of 
secretly  or  fraudulently  placing  any  document  in  the  archives  of  the  sur- 
veyor general's  office  in  California.  Federal  jurisdiction  of  crimes  and 
offenses  cognizable  under  the  authority  of  the  United  States  is  exclusive 
of  State  courts. 2  As  between  the  circuit  and  district  courts,  the  juris- 
diction in  such  cases  is  concurrent,  except  in  the  case  of  capital  offenses, 
where  the  jurisdiction  is  exclusively  in  the  circuit  court. s ,  Federal  courts 
have  no  common  law  jurisdiction  in  criminal  cases*  and  the  above  provision 
confers  no  jurisdiction  on  the  district  court  of  a  crime  not  otherwise  de- 
fined by  some  Federal  statute.5  The  authority  to  punish  for  manslaughter 
on  the  navigable  waters  of  the  United  States  is  found  in  the  constitutional 
grant  of  power  to  regulate  commerces  Pei'jury  as  defined  by  R.  S.  §  5392. 
is  punishable  under  this  section.'? 

The  jurisdiction  of  a  district  court  is  coextensive  with  the  particular 
district, 8  and  the  fact  that  such  district  is  divided  by  act  of  Congress  into 
two  or  more  divisions  does  not  affect  the  criminal  jurisdiction  of  that  court, 
unless  otherwise  provided.9  In  dividing  a  district  however.  Congress  may 
provide  that  crimes  committed  in  a  particular  division  may  be  prosecuted 
only  in  that  division. lo  And  this  provision  will  be  followed  although  the 
crime  was  committed  before  the  division  took  place,  if  the  indictment  was 
not  brought  until  afterward. n 

§  194.     Jurisdiction   over  piracy. 

The  district  courts  shall  have  jurisdiction     .     .     . 
Second.  Of  all  cases  arising  under  any  act  for  the  punishment  of 
piracy,  when  no  circuit  court  is  lield  in  the  district  of  such  court. 
Second  paragraph  R.  S.  §  563,  U.  S.  Comp.  Stat.  1901,  p.  456. 

lAnte,  §  116.  et  seq.  TCaha  v.  United  States,  152  U.  S- 

2Ante,  §  15.  216.  38  L.  ed.  418.  14  Sup.  Ct.  Rep. 

sSee  ante.  S  1:52:  United  States  v.  513. 

Plumer,   3    Cliff.    28.    Fed.    Cas.    No.  sRosencrans  v.  United  States,  165 

lfi-056.  U.  S.  257,  41  L.  ed.  708,  17  Sup.  Ct. 

^United  States  v.  Rogers.  46  Fed.  Rep.  302. 

1  :   United  State's  v.  ^Vorrall.  2  Dall.  sUnited  States  v.  Kessell.  63  Fed. 

384.   1   L.  ed.   426:    United   States  v.  434:    Rosencrans    v.     United    States, 

Hudson,  7  Crancb,  32.  2  L.  ed.  259;  l(i5  U.  S.  257.  41  L.  ed.  708,  17  Sup. 

United  States  v.   Coolidge.  1  Wheat.  Ct.  Rep.  302. 

415,  4  L.  ed.  124.  loPost,  §  406. 

sUnited   States  v.   Lewis.   36   Fed.  uPost    v.    United    States,    161    U. 

449,  13  Sawy.  532.  S.  583.  40  L.  ed.  816.  16  Sup.  Ct.  Rep. 

«United  States  v.  Be^icham,  29  Fed.  611. 
284. 

387 


§   195 


THE   DISTRICT  COURT— JURISDICTION. 


[Code  Fed. 


§  195.     Over  suits  for  penalties  and  forfeitures. 

The  district  courts  shall  have  jurisdiction     .     .     . 
Third.  Of  all  suits  for  penalties  and  forfeitures  incurred  under 
an}^  law  of  the  United  States. 

Third  paragraph  R.  S.  §  563,  U.  S.  Corap.  Stat.  1901,  p.  456. 

Jurisdiction  over  suits  for  penalties  and  forfeitures  incurred  under  Feder- 
al laws,  has  been  vested  in  the  district  court  from  the  time  of  the  judiciary 
act  of  1789.14  Under  that  act  the  jurisdiction  was  exclusive.  Now,  how- 
ever, the  circuit  court  has  jurisdiction  in  certain  cases; is  though  always 
■given  by  special  act  and  the  general  jurisdiction  has  been  and  still  is 
•vested  in  the  district  court. i  6  So,  where  a  statute  imposes  a  penalty  and 
forfeiture  the  latter  court  has  jurisdiction  unless  it  is  in  express  terms 
placed  exclusively  elsewhere.i^  Thus  a  suit  for  a  penalty  for  importing 
alien  contract  laborers  under  an  act  of  188518  is  within  the  meaning  of  the 
provision,  although  the  act  provides  that  the  penalty  may  be  recovered,  "as 
■debts  of  like  amount  are  now  recovered  in  the  circuit  courts."i9  Such  pro- 
vision refers  to  the  form  of  the  action  rather  than  to  the  court  in  which 
the  suit  is  to  be  brought. 20  Whether  the  act  just  mentioned  gives  the 
•circuit  court  jurisdiction  at  all  seems  questionable.! 

The  jurisdiction  of  the  district  court  under  the  above  provision  is  not 
repealed  or  modified  by  the  act  of  1875  as  amended  1887-1888,  giving  the 
circuit  courts  original  jurisdiction  of  all  suits  arising  under  the  Federal 
laws  or  in  which  the  United  States  are  plaintiffs  or  petitioners. 2  Forfeit- 
'ures  under  this  provision,  include  the  forfeitures  of  a  bail  bond  in  suit 
for  violation  of  internal  revenue  laws;3  penalties  in  a  suit  against  a 
national  bank  for  taking  illegal  interest;*  and  penalties  and  forfeitures 
vmder  the  customs  laws  are  also  within  the  section. 5  In  the  latter  case 
the  jurisdiction  vests  exclusively  in  the  district  court.  6 


14 Act  Sept.  24,  1879.  c.  20,  §  9,  1 
■■Stat.  76. 

isAnte,  §§  124,  [c]  125. 

i6Lees  V.  United  States.  150  U.  S. 
478,  37  L.  ed.  1150,  14  Sup.  Ct.  Rep. 
163. 

i7ldem. 

18 Ante,   §   147. 

i9Lees  V.  United  States,  150  U.  S. 
476.  37  L.  ed.  1150.  14  «up.  Ct.  Rep. 
163;  Rosenberg  v.  Union,  etc.  Works, 
109  Fed.  845:  United  States  v.  Bed- 
stead Co.  45  Fed.  90.  But  see  United 
States  V.  Banister,  70  Fed.  45.  See 
ante,  §   147. 

2  0Lees  v.  United  States,  150  U.  S. 
476,  37  L.  ed.  1150,  14  Sup.  Ct.  Rep. 
163. 

iSee  ante,  §  147. 

-2 Ante,    §§     129,     130;     Helwig    v. 


United  States.  188  U.  S.  605.  47  L. 
ed.  614.  23  Sup.  Ct.  Rep.  427 :  United 
States  V.  Bedstead  Co.  45  Fed.  90. 
See  also  United  States  v.  Mooney, 
116  U.  S.  106,  29  L.  ed.  550.  6  Sup.  Ct. 
Rep.  304. 

sinslev  V.  United  States,  150  U. 
S.  515,  37  L.  ed.  1165,  14  Sup.  Ct. 
Rep.  158. 

4Firs't  Nat.  Bank  of  Charlotte  v. 
Morgan,  132  U.  S.  141,  33  L.  ed.  282, 
10  Sup.  Ct.  Rep.  37. 

sHelwig  V.  United  States,  188  U. 
S.  605,  47  L.  ed.  614,  23  Sup.  Ct.  Rep. 
427;  United  States  v.  Mooney,  116 
U.  S.  106,  29  L.  ed.  551,  6  Sup.  Ct. 
Rep.  304. 

6Helwig  V.  United  States,  188  U. 
S.  610,  47  L.  ed.  614,  23  Sup.  Ct.  Rep. 
427. 


388 


Procedure]  OVER  SUITS  FOB  FORFEITURES.  $   19S 

§  196.     Over  common  law  suits  by  the  United  States  or  its  offi- 
cer. 

The  district  courts  shall  have  jurisdiction     .     .     . 
Fourth.  Of  all  suits  at  common  law  brought  by  the  United  States, 
or  by  any  officer  thereof,  authorized  by  law  to  sue. 

Paragraph  4,  R.  S.  §  563,  U.  S.  Comp.  Stat.  1901,  p.  456. 

The  circuit  courts  are  also  given  jurisdiction  of  the  suits  mentioned  in 
this  section. 9  Suits  under  this  provision  include  an  action  of  trover 
brought  by  a  United  States  marshal  to  recover  official  moneys  found  by 
the  defendant;  10  an  action  to  recover  a  penalty  under  the  navigation  law 
for  employing  an  unlicensed  pilot ;ii  a  set-off  imposed  by  the  government 
in  a  suit  by  a  district  attorney  to  recover  fees;i2  a  suit  brought  by  United 
States  under  a  State  statute,  on  a  sheriff's  bond  to  recover  damages  for 
negligently  allowing  the  escape  of  a  Federal  prisoner;  13  a  suit  by  a  national 
bank  receiver.!* 

§  197.     Over  equity  suits  to  enforce  lien  for  revenue  tax. 

The  district  courts  shall  have  jurisdiction     .     .     . 

Fifth.  Of  all  suits  in  equity  to  enforce  the  lien  of  the  United 
States  upon  any  real  estate  for  any  internal  revenue  tax,  or  to  sub- 
ject to  the  pa3Tnent  of  any  such  tax  any  real  estate  owned  by  the 
delinquent,  or  in  which  he  has  any  right,  title  or  interest. 
Fifth  paragraph  R.  S.  §  563,  U.  S.  Comp.  Stat.  1901,  p.  456. 

The  above  provision  was  enacted  in  1868.16  The  venue  of  suits  arising 
thereunder  is  stated  in  a  following  section.  17  Jurisdiction  of  all  cases 
arising  under  internal  revenue  laws  is  given  also  to  the  circuit  court.is 

§  198.  Over  suits  for  forfeitures  for  debts  to  United  States. 

The  district  courts  shall  have  jurisdiction     .     .     . 

Sixth.  Of  all  suits  for  the  recovery  of  any  forfeiture  or  damages 
under  section  thirty-four  hundred  and  nintey.  Title  "Debts  due  by 
or  to  the  United  States;"  and  such  suits  may  be  tried  and  deter- 
mined by  any  district  court  within  whose  jurisdictional  limits  the 
defendant  may  be  found. 

Sixth  paragraph  R.  S.  §  563,  U.  S.  Comp.  Stat.  1901,  p.  456. 

9Ante  §§  124.  130.  i4Ante,   §     124,    note.Cb]      Freling- 

lOHenry  v.  Sowles,  28  Fed.  481.  huvsen   v.    Baldwin.     12    Fed.     395; 

iiUnited  States  v.  Bougher.  6  Mc-  Stephens  v.  Bernays.  44  Fed.  642. 
Lean,  277,  Fe<l.  Cas.  No.  14.627.  leAct  July  20,  1868,  c.  186,  §  106, 

i2Tuthill  V.  United  States.  38  Fed.  15  Stat.  167.' 
538.  17  Post,  §  420. 

isTennessee  v.  Hill.  60  Fed.   1005,        isAnte,  §  124.   [c] 
9  C.  C.  A.  326.  24  L.R.A.  170. 

389 


§   lf)9  THE   DISTRICT  COURT—  [Code   Fed. 

This  provision  was  uiigiiuilly  part  of  an  act  of  1S(J:5.1  R.  S.  §  :{400,  above 
mentioned  subjects  persons  making  false  claims  against  the  United  States 
to  a  two  thousand  dollar  forfeiture  and  double  damages. 

§  199.     Over  actions  under  postal  laws. 

Tlie  district  courts  shall  have  jurisdiction     .     .     . 
Seventh.  Of  all  causes  of  action  arising  under  tlie  postal  laws  of 
the  United  States. 

Seventh  paragraph,  R.  S.  §  563,  U.  S.  Corap.  Stat.  1901,  p.  457. 

This  provision  was  enacted  in  1845.3  Jurisdiction  over  the  same  suits  is 
given  also  to  the  circuit  courts.* 

§  200.     Over  admiralty  causes  and  non-admiralty  seizures. 

The  district  courts  shall  have  jurisdiction     .     .     . 

Eighth.  Of  all  civil  causes  of  admiralty  and  maritime  jurisdic- 
tion ;  saving  to  suitors  in  all  eases  the  right  of  a  common-law  remedy, 
where  the  common  law  is  competent  to  give  it;  and  of  all  seizures 
on  land  and  on  waters  not  within  admiralty  and  maritime  jurisdic- 
tion. And  such  jurisdiction  shall  be  exclusive,  except  in  the  par- 
ticular cases  where  jurisdiction  of  such  causes  and  seizures  is  given 
to  the  circuit  courts.  And  shall  have  original  and  exclusive  cogni- 
zance of  all  prizes  brought  into  the  United  States,  except  as  pro- 
vided in  paragraph  six  of  section  six  hundred  and  twenty-nine. 

Eighth  paragraph  R.  S.  §  503,  as  amended  1875,  U.  S.  Comp.  Stat.  1901, 
p.  457. 

The  amendment  of  1875,6  consisted  in  the  addition  of  the  last  sentence 
above  set  forth.  Paragraph  6  of  R.  S.  §  629,  mentioned  supra,  gives  the 
circuit  court  jurisdiction  of  proceedings  for  the  condemnation  of  property 
which  has  been  taken  as  prize  because  employed  in  aid  of  insurrection.'' 
Federal  jurisdiction  of  admiralty  and  maritime  cases,  and  cases  of  seizures 
is  made  exclusive  of  the  State  courts.s  The  whole  subject  of  jurisdiction 
in  such  cases  is  considered  in  a  previous  chapter.9  Under  this  section  the 
district  court  has  jurisdiction  to  entertain  a  petition  for  the  award  of 
salvage  against  the  United  States.io 


lAct  March  2.  186;).  c.  67,  §  4.   12         TAnte,  §  125. 
Stat.  608.  8 Ante.   §    15. 

3Act    :\Iarclh    3.    1845.   c.    43.    §    20.         sAnte,  §§  2,  [k]-[kk]   15.  [d]-[j] 
6  Stat.  739.  loUnited  States  v.  WishKah  B.  Co. 

4 Ante.  §  124.  1,36  Fed.  42,  68  C.  C.  A.  592. 

6Act  Feb.  18,  1875,  c.  80,  18  Stat, 
317. 

390 


Procedure  1  JURISDICl'lON.  §  203 

§  201.     Over   proceedings   for   condemnation   as   prize. 

The  district  courts  shall  have  jurisdiction     .     .     . 
Ninth.  Of  all  proceedings  for  the  condemnation  of  property  taken 
as  prize,  in  pursuance  of  section    fifty-three    hundred    and  eight. 
Title,  "Insurrection." 

Ninth  paragraph  R.  S.  §  .5G3,  as  amended  1875,  U.  S.  Comp.  Stat.  1901, 
p.  457. 

The  section  was  originally  enacted  in  1861.1 1  The  amendment  of  1875,i2 
consisted  in  changing  the  section  above  mentioned  from  5376  to  5308.  Con- 
current jurisdiction  in  the  cases  mentioned  is  given  to  the  circuit  courts. is 

§  202.     Over  suits  on  debentures  for  drawback  of  duties. 

The  district  courts  shall  have  jurisdiction     .     .     . 

Tenth.  Of  all  suits  by  the  assignee  of  any  debenture  for  draw- 
back of  duties,  issued  under  any  law  for  the  collection  of  duties, 
against  the  person  for  whom  such  debenture  was  originally  granted, 
or  against  any  indorser  thereof,  to  recover  the  amount  of  such  de- 
benture. 

Tenth  paragraph  R.  S.  §  563,  U.  S.  Comp.  Stat.  1!)01.  p.  458. 

The  section  was  carried  into  the  Revised  Statutes  from  an  act  of  1799, 1 3 
R.  S.  §  3039,  authorizes  suits  on  the  debentures  herein  described.  .Juris- 
diction of  such  suits  is  given  also  to  the  circuit  courts. 1 6 

§  203.     Over  suits  for  damages  for  conspiracy  against  civil  rights. 

The  district  courts  shall  have  jurisdiction     . 

Eleventh.  Of  all  suits  authorized  by  law  to  be  brought  by  any 
person  for  the  recovery  of  damages  on  account  of  any  injury  to  his 
person  or  property,  or  of  the  deprivation  of  any  right  or  privilege 
of  a  citizen  of  the  United  States  by  any  act  done  in  furtherance  of 
any  conspiracy  mentioned  in  section  nineteen  hundred  and  eighty- 
five,  Title,  "C^ivil  rights." 

Eleventh  paragraph  R.  S.  §  563,  V.  S.  Comp.  Stat.  1901,  p.  458. 

This  section  was  enacted  in  1871.1s  .Jurisdiction  over  the  suits  men- 
tioned herein  is  given  also  to  the  circuit  courts.is  Section  nineteen  hun- 
dred and  eighty-five"  above  mentioned  does  not  have  to  do  with  conspiracy. 
R.  S.  S  1980.  is  apparently  meant. 

iiAct  Aug.  6,  1861.  c.  60  §  2,  12  i.^Act  ;March  2.  1799.  c.  22.  1  Stat. 
Stat.  319.  687. 

12 Act  Feb.  IS.  1875,  c.  80,  18  Stat.         i«.Viite.  §  12.'i. 
317.  isAct    April    20.    1871,   c.   22.    §    2, 

i3Ante.  §  125.  17  Stat.   13. 

i^\ntp.  §   127. 
391 


§  204  THE   DISTRICT   COURT—  [Code  Fed. 

§  204.     Over  suits  to  redress  deprivation  of  Federal  rights. 

The  district  courts  shall  have  jurisdiction     .     .     . 

Twelfth,  Of  all  suits  at  law  or  in  equity  authorized  by  law  to  be 
brought  by  any  person  to  redress  the  deprivation,  under  color  of 
any  law,  ordinance,  regulation,  custom  or  usage  of  any  State,  of 
any  right,  privilege,  or  immunity  secured  by  the  Constitution  of 
the  United  States,  or  of  any  right  secured  by  any  law  of  the  United 
States  to  persons  within  the  jurisdiction  thereof. 

Twelfth  paragraph  R.  S.  §  563,  U.  S.  Comp.  Stat.  1901,  p.  458. 

Jurisdiction  of  suits  mentioned  in  this  section  is  given  also  to  the  circuit 
courts.  1  Under  its  provisions  the  district  court  has  jurisdiction  to  de- 
termine whether  colored  children,  refused  admission  to  school,  are  denied 
the  equal  protection  of  the  la\v.2 

§  205.     Suits  to  recover  office  where  denial  of  Federal  rights  in- 
volved. 

The  district  courts  shall  have  jurisdiction     .     .     . 

Thirteenth.  Of  all  suits  to  recover  possession  of  any  office,  ex- 
cept that  of  elector  of  President  or  Vice-President,  Kepresentative 
or  Delegate  in  Congress,  or  member  of  a  State  legislature,  authorized 
by  law  to  be  brought,  wherein  it  appears  that  the  sole  question 
touching  the  title  to  such  office  arises  out  of  the  denial  of  the  right 
to  vote  to  any  citizen  offering  to  vote,  on  account  of  race,  color,  or 
previous  condition  of  servitude:  provided,  that  such  jurisdiction 
shall  extend  only  so  far  as  to  determine  the  rights  of  the  parties 
to  such  office  by  reason  of  the  denial  of  the  right  guaranteed  by  the 
Constitution  of  the  United  States,  and  secured  by  any  law,  to  en- 
force the  right  of  citizens  of  the  United  States  to  vote  in  all  the 
States. 

Thirteenth  paragraph  R.  S.  §  563,  U.  S.  Comp.  Stat.  1901,  p.  458. 

This  section  was  carried  into  the  Revised  Statutes  from  an  act  of  1870.4 
Jurisdiction  of  suits  mentioned  therein  is  given  also  to  the  circuit  court. 5 
Such  suits  were  authorized  by  R.  S.  §  2010.  That  section  was  repealed, 
however,  in  1894.6 

lAnte,  §  127.  5Ante.  §  127. 

2Davenport  v.  Cloverijort.  72  Fed.  6Act  Fed.  8,  1894,  c.  25,  §  1,  28 
689.  Stat.  36. 

4Act  May  31,  1870,  c.  114,  §  23.  16 
Stat.  146. 

392 


Procedurel  JURISDICTION.  §  208- 

§  206.     Over  quo  warranto  suits  against  office  holders  contrary 
to  Fourteenth  Amendment. 

The  district  courts  shall  have  jurisdiction     .     .     . 

Fourteenth.  Of  all  proceedings  by  the  writ  of  quo  warranto, 
prosecuted  by  any  district  attorney,  for  the  removal  from  office  of 
any  person  holding  office,  except  as  a  member  of  Congress,  or  of  a 
State  legislature,  contrary  to  the  provisions  of  the  third  section 
of  the  fourteenth  article  of  amendment  of  the  Constitution  of  the' 
United  States. 

Fourteenth  paragraph  R.  S.  §  563,  U.  S.  Comp.  Stat.  1901,  p.  459. 

The  above  provision  has  become  inoperative  by  the  removal  of  the  dis- 
ability imposed  by  the  constitutional  amendment,  above  mentioned.  8 

§  207.     Suits  by  or  against  national  banks. 

The  district  courts  shall  have  jurisdiction     .     .     . 

Fifteenth.  Of  all  suits  by  or  against  any  association  established 
under  any  law  providing  for  national  banking  associations  within 
the  district  for  which  the  court  is  held. 

Fifteenth  paragraph  R.  S.  §  563,  U.  S.  Comp.  Stat.  1901,  p.  459. 

This  provision  was  originally  enacted  in  1864.10  The  circuit  courts  are- 
also  given  jurisdiction  of  suits  by  and  against  national  banks,  n  But  since- 
an  act  of  1887  the  circuit  and  district  courts  have  not  had  jurisdiction  over 
suits  by  and  against  national  banks,  other  than  such  as  they  would  have- 
in  cases  between  individual  citizens  of  the  same  State.  That  act,  however, 
expressly  excepts  suits  commenced  by  the  United  States  or  by  direction  of 
any  officer  thereof,  or  cases  for  winding  up  the  affairs  of  any  such  bank.12 

§  208.     Suits  by  aliens  for  tort  against  treaty  or  law  of  nations. 

The  district  courts  shall  have  jurisdiction     .     .     . 
Sixteenth.  Of  all  suits  brought  by  any  alien  for  a  tort  only  iu 
violation  of  the  law  of  nations,  or  of  a  treaty  of  the  United  States- 
Sixteenth  paragraph  R.  S.  §  563,  U.  S.  Comp.  Stat.  1901,  p.  459. 
The  above  provision  was  enacted  in  1789.1* 

SAct  June  6,  1898,  c.  389,  30  Stat.  12 Ante.  §  24;  Petri  v.  National 
432.  Bank.   14-2  U.  S.  649,  35  L.  ed.  1144, 

i»Act  .Tune   3,    18G4,  c.   106,   §   57,    12  Sup.  Ct.  Rep.  325. 
13  Stat.  116.  i4Act  Sept.  24,  1789,  c.  20,  §  9,  L 

11  Ante,  §  127.  Stat.  76. 

393 


s  ii<)!<  rm:  distkict  court —  [Code  Fed. 

§  209.     Over  suits  against  consuls. 

The  district  court  sliall  liave  jurisdiction     .     .     . 
Seventeenth.  Of  all  suits  against  consuls  or  vice  consuls,  except 
for  offenses  above  the  discription  aforesaid. 

Seventeenth  paragraph  R.  S.  §  m'i.  U.  S.  Comp.  Stat.  IWl.  p.  459. 

The  clause  in  the  above  section,  ••except  for  offenses  above  the  description 
aforesaid"  was  taken  from  an  act  of  1789, 1 6  and  referred  to  a  provision  of 
that  act,  providing  "that  the  district  courts  shall  have,  exclusively  of  the 
courts  of  the  several  States,  cognizance  of  all  crimes  and  offenses  that 
shall  be  cognizable  under  the  authority  of  the  United  States,  committed 
within  their  respective  districts  or  upon  the  high  seas,  where  no  other 
punishment  than  whipping,  not  exceeding  thirty  stripes,  or  a  fine  not  ex- 
ceeding $100,  or  a  term  of  imprisonment  not  exceeding  six  months  is  to  be 
iaflicted."!"  The  jurisdiction  over  suits  against  consuls  is  considered  else- 
where. 18 

This  provision  is  constitutional,  the  "original  jurisdiction"  given  by  the 
Constitution  to  the  Supreme  Court,  over  all  cases  affecting  ambassadors 
and  consuls,  not  being  exclusive.is  Under  it  a  district  court  has  jurisdic- 
tion in  equity  and  hence  may  take  cognizance  of  a  suit  to  foreclose  a  mort- 
,i>age.2o  It  does  not  however  apply  to  a  suit  against  a  United  States 
consul  such  person  having  no  official  character  in  his  own  country,  i  All 
suits  or  proceedings  against  consuls  or  vice-consuls  were  made  exclusive 
of  the  State  courts  by  the  judiciary  act  of  1789.2  That  provision,  which 
was  carried  into  the  Revised  Statutes, 3  was  directly  repealed  by  an  act 
of  1875,4  and  under  the  present  law  there  is  no  statute  which  in  terms 
makes  the  Federal  jurisdiction  exclusive  of  State  courts  in  such  cases.6 
The  act  just  referred  to,  however,  in  no  way  diminishes  the  jurisdiction  of 
the  district  court. « 

§  210.     In  bankruptcy. 

The  district  courts  are  constituted  courts  of  bankruptcy,  and 
shall  have  in  their  respective  districts  orignal  jurisdiction  in  all 
matters  and  proceedings  in  bankruptcy. 

18th  paragraph,  R.  S.  §   5G3,  U.   S.  Comp.  Stat.   1901,  p.  459. 

This   provision   was   carried   into   the  Revised   Statutes   from   the   Bank- 

l6Act  Sept.  -24.  1789.  c.  "20.  §  9.  1  iMilward  v.  McSaiil.  17  Fed.  Cas. 
Stat.  70.  Xo.  9.f)24. 

iTIbid.  2 Act   Sept.   24,   1875.  c.  20.   §   9.   1 

18 Ante    §  2  ^*'^*-  '^^• 

-  3R.  S.  §  711   paragraph  8. 

isDavis  V.   Packard.  7  Pet.  281.  8  4  ^^t  Feb.  18,  1875,  c.  -20,  18  Stat 

L.   ed.  087:    Pooley  v.   Luco.   76   Fed.  -^it^ 

147;  State  v.  Lewis.  14  Fed.  67.     See  VrJus  v.  Preston,  111  U.  S.  252,  28 

*nte,  §  2.  j^   pd    419    4  Sup    ct.  Rep.  407. 

2  0Pooley  V.  Luco,  76  Fed.  147.  sFroment  v.  Duclos,  30  Fed.  385. 

394 


Piocedure]  JURIS5DICTION.  S   212 

rupt  act  of  1867.8  The  language  is  broad  and  general,  and  covei-s  the 
two  general  classes  of  cases  which  arise;  first,  proceedings  in  bank- 
ruptcy initiated  by  the  petition,  and  ending  in  the  distribution  of  assets 
amongst  the  creditors,  and  the  discharge  of,  or  the  refusal  to  discharge 
the  bankrupt;  second,  suits  at  law  or  in  equity,  brought  by  or  against 
tlie  assignee  in  reference  to  alleged  propea'ty  of  the  bankiiipt  or  to  claims 
alleged  to  be  due  from  or  to  him.^  A  general  discussion  of  the  juris- 
diction of  the  district  courts  and  other  courts  as  courts  of  bankruptcy, 
.as  defined  in  the  Bankruptcy  act  of  189810  will  be  found  in  a  following 
chapter.  11 

§  211.     Over  prosecutions  for  violation  of  sealing  law. 

Any  violation  of  this  act.  [i  e..  regulating  seal  fishing] 
or  of  the  regulations  made  thereunder,  may  be  prosecuted  either  in 
the  district  court  of  Alaska  or  in  any  district  court  of  the  United 
States  in  California,  Oregon  or  Washington. 

§   9  of  act  April  G.  1894,  c.  57,  28  Stat.  54.,  U.  S.  Comp.   Stat.  1901, 
p.    3009. 

An  act  of  1897  contained  the  same  provision  as  to  jurisdiction.! 3 

§  212.     Concurrent  jurisdiction  with  Court  of  Claims. 

The  district  courts  of  the  United  States  shall  have  concurrent 
Jurisdiction  with  the  Court  of  Claims  as  to  all  matters  named  in 
the  preceding  section^"*  [claims  against  the  United  States  growing 
out  of  contract,  etc.]  where  the  amount  of  the  claim  does  not  ex- 
ceed one  thousand  dollars.  .  .  .  The  jurisdiction  hereby  con- 
ferred upon  the  said  .  .  .  district  courts  shall  not  extend  to 
cases  brought  to  recover  fees,  salary,  or  compensation  for  official 
services  of  officers  of  the  United  States  or  brought  for  such  purpose 
by  persons  claiming  as  such  officers  or  as  assignees  or  legal  repre- 
sentatives thereof. 

Part  of  §  2.  act  Mar.  3.  1887,  24  Stat.  505,  as  amended  -June  27.  1898.  c. 
503,  30  Stat.  495,  U.  S.  Comp.  Stat.  1901,  753. 

This  section  also  gave  concurrent  jurisdiction  to  the  circuit  courts  over 
suits  exceeding  one  thousand  dollars  in  amount  and  not  exceeding  ten 
thousand  dollars. is  The  amendment  of  1898  consisted  in  the  addition  of 
the  last  sentence  above  .set  forth.  \Miether  this  amendment  applied  to 
pending    suits    so   as    to    require   their   dismissal    for    want    of   jurisdiction 

8Act  March  2.  18G7.  c.  17G,  §  1.  14         13§    5,   of   act   Dec.   29,    1897.   c.    3, 

Stat  517.  30  Stat.  227,  U.  S.  Comp.  Stat.  1901, 

sLatlirop  v.   Drake,   91   U.   S.   517.  p.  3012. 
23  L.  ed.  415.  USee  post.  §  229. 

loAct  Julv  1.  1898.  c.  .541.  §  2.  isAnte,   §   139. 

11  Post.  §  21fi3.  et  seq. 

395 


S  213  THE  DISTRICT  COURT—  [Code  Fed. 

was  a  mooted  question. is  it  was  finally  settled  in  190017  by  an  act  pro- 
viding that  no  suit  pending  in  the  circuit  or  district  courts  should  abate 
or  be  affected  by  the  amendment.  A  letter  carrier  is  a  United  States 
officer  within  the  meaning  of  the  amendment,  and  hence  a  suit  brought 
by  him  to  recover  for  services  is  not  within  the  juirisdiction  of  the  dis- 
trict court. 18  A  claim  against  the  United  States  for  salvage  is  one 
for  unliquidated  damages  not  sounding  in  tort  within  the  section  re- 
ferred to  in  the  above  provision;  and  the  jurisdiction  is  not  defeated  where 
the  salvage  was  of  sugar  in  customs  officers'  possession,  upon  the  theory 
that  the  case  is  one  under  the  reveYiue  laws. is 

§  213.     Jurisdiction  in  cases  transferred  from  territorial  courts. 

Wlien  any  Territory  is  admitted  as  a  State,  and  a  district  court  is 
established  therein,  the  said  district  court  shall  take  cognizance  of 
all  cases  which  were  pending  and  undetermined  in  the  superior 
court  of  such  Territory,  from  the  judgments  or  decrees  to  be  ren- 
ered  in  which  writs  of  error  could  have  been  sued  out  or  appeals 
taken  to  the  Supreme  Court,  and  shall  proceed  to  hear  and  deter- 
mine the  same. 

R.  S.  §  569,  U.  S.  Comp.  Stat.  1901,  p.  462. 

The  several  acts  passed  since  the  Revised  Stautes,  admitting  new  States- 
into  the  Union,  constitute  each  State  a  judicial  district  and  contain  special 
provisions  similar  to  the  above,  for  the  transfer  of  pending  casesi 

§  214.     Jurisdiction  under  interstate  commerce,  alien  immigrant, 
and  alien  enemies'  laws. 
Jurisdiction  is  conferred  in  general  terms  upon  the  circuit  and 
district  courts  by  provisions  of  the  interstate  commerce,^  alien  immi- 
grant,^ and  alien  enemies'  laws,^  and  others,^  which  are  set  forth 
in  the  chapter  dealing  with  the  circuit  court's  jurisdiction. 
Author's  section. 

16 Ante,  §  139.  also     Forsyth     v.     United    States,    9 

i7Act  Feb.  26,  1900,  c.  25,  31  Stat.  How.  571.  "13  L.  ed.  262;  McNulty  v. 

33.  Batty,    10    How.    72,    13    L.    ed.    .333. 

isUnited     States    v.    McCrory,   91  See  act  June  19,  1906,  c.  33.35,  §  16,  34 

Fed.  296,  33  C.  C.  A.  515.  Stat.  276,  admitting  Oklahoma, 

19 United  States  v.  Cornell   S.   Co.  2 Ante,  §§   151,  152. 

202    U.    S.    184.    50    L.   ed.   987,  26  3 Ante,  §  153. 

Sup.  Ct.  Rep.  648.  4Ante.  §  156. 

iSee  Ames  v.  Colorado,  etc.  R.  Co.  5 Ante,  §  163. 
4  Dill.  251,  Fed.   Cas.  No.  324.     See 

396 


Procedure]  JURISDICTION.  §  216 

§  215.     Jurisdiction  as  to  suits  for  unlawful  occupancy  of  pub- 
lic lands,  and  for  condemnation,  and  over  crimes 
upon   South   Dakota   reservations   and   upon   great 
lakes. 
Jurisdiction  is  also  conferred  in  general  terms  upon  the  circuit 
and  district  courts  by  statutes  respecting  suits  for  unlawful  in- 
closure  of  public  lands,^  for  condemnation  for  government  uses/ 
and  over  crimes  upon  South  Dakota  reservations^  and  upon  the 
great  lakes.^     Another  provision  confers  jurisdiction  over  suits  on 
the  bond  of  a  deputy  marshal  of  Owensboro,  Kentucky.^  "^ 
Author's  section. 

§  216.     Jurisdiction  over  offenses  against  submarine  cable  law. 

The  district  courts  of  the  United  States  shall  have  jurisdiction 

over   all   offenses    against   this   act  and   of   all   suits   of   a   civil 

nature    arising    thereunder,    whether    the    infraction    complained 

of  shall  have  been  committed  within  the  Territorial  waters  of  the 

United  States  or  outside  of  the  said  waters :  Provided,  That  in  case 

such  infraction  is  committed  outside  of  the  Territorial  waters  of  the 

United  States  the  vessel  on  board  of  which  it  has  been  committed 

is  a  vessel  of  the  United  States.    From  the  decrees  and  judgments 

of  the  district  courts  in  actions  and  suits  arising  under  this  act 

appeals  and  writs  of  error  shall  be  allowed  as  now  provided  by  law 

in  other  cases.     This  section  also  provides  for  the  venue  in  such 
cases.  ^2 

Part  of  §  13  of  act  Feb.  29,  1888,  c.  17,  25  Stat.  42,  U.  S.  Comp.  Stat. 
1901,  p.  3589\ 

•Ante,  §  154.  SAnte,  §  157. 

7Ante,   §   150.  loPost,  §  632. 

•Ante,   §   155.  12  See  post,   §  425. 


397 


CHAPTER  8. 

THE  COURT  OF  CLAIlSfS. 

§  221.     Cross-references. 

§  222.     Organization  and  constitution. 

§  223.     — power  of  judges  and  clerks. 

§  224.     — power  to  establish  rules,  punish  contempts,  etc 

§  225.     Seal  of  court. 

§  226.     Court  rooms,  etc.,  how  provided. 

§  227.     Quorum  of  the  court. 

§  228.     Officers  of  the  court. 

§  229.     Jurisdiction   under   act  of    1887 — what   claims   against   government 

cognizable. 
§  230.     — jurisdiction  in  matter  of  sot-offs.  etc..  and  proviso  as  to  lime  of 

suit  and  suits  by  Federal  officers. 
§  231.     Jurisdiction  as  defined  by  Revised  Statutes. 

§  232.     —claims  of   disbursing  officers  for  relief   from   unavoidable   lois. 
§  233.     — claims  for  captured  and  abandoned  property. 
§  234.     Jurisdiction  over   petitions   and   bills    for  claims   transmitted    from 

Congress. 
S  235.     Claims   pending  before  Congiess   may  be   transmitted  to   Court  of 

Claims. 
§  236.     Jurisdiction    over   claims   referred   by   executive   departments. 
§  237.     — on  referred  claims  under  act  of  1887. 
§  238.     — on  referred  claims  under  act  of  1883. 
§  239.     Jurisdiction  to  render  judgment  on  a  referred  claim. 
§  240.     Duty  to  report  to   Congress  on  referred  claim. 
§  241.     Jurisdiction  over  claims  for  Indian  depredations. 
§  242.     Jurisdiction   to  adjust  indebtedness  to  United  Stales,  alleged  and 

unsettled,  on  behalf  of  debtor  or  his  bondsmen. 
§  243.     Juri.sdiction  over  particular  claims  or  classes  of  claims. 
§  244.  Over  suits  by  aided  railroads,  for  transportation  furnished. 
§  245.     Claims  not  cognizable — war  claims. 

§  246.     — no  jurisdiction  over  claims  pending  in  other  courts. 
§  247.     — nor  over  claims  growing  out  of  treaties. 

§  221.     Cross-references. 

Elsewhere  will  be  found  provisions  forhiddins:  members  of  Con- 
gress to  practice  in  the  Court  of  Claims;^  conferring  concurrent 

iPost,  §  498. 

308 


Procedure]  ORGANIZATION   AND  POWERS.  S  224 

jurisdiction  on  the  circuit  and  district  courts  ;2  defining  the  pro- 
cedure in  the  Court  of  Claims;^  providing  for  offsets  against  a 
judgment  recovered  in  Court  of  Claims;"*  for  suits  by  aliens  there- 
in;^ and  prescribing  the  time  for  suit;^  and  for  interest  on  judg- 
ments against  the  United  States^ 
Author's  section. 

§  222.     Organization  and  constitution. 

The  Court  of  Claims,  establislied  by  the  act  of  February  24,  1855, 
shall  be  continued.  It  shall  consist  of  a  chief  justice  and  four 
judges,  wlio  sliall  be  appointed  by  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate,  and  hold  their  offices  during  good 
behavior.  Eacli  of  them  shall  take  an  oath  to  support  the  Consti- 
tution of  the  United  States,  and  to  discharge  faithfully  the  duties 
of  his  office. 

Part  of  R.  S.  §   104!),  U.  S.  Conip.  Stat.  1901,  p.  729. 

The    lemaind*'!"    of    the    section    provides    the    salaries    of    such   judges.* 

§  223.  —  power  of  judges  and  clerks. 

The  judges  and  clerks  of  said  court  may  administer  oaths  and  af- 
firmations, take  acknowledgments  of  instruments  in  writing,  and 
give  certificates  of  the  same. 

R.   S.  «    1071.  U.   S.  Comp.   Stat.   1901,  p.   741. 

The  aoove  section  was  carried  forward  into  the  Revised  Statutes  from 
an  act  of  186.3.io 

§  221.  —  power  to  establish  rules,  punish  contempts,  etc. 

Thv  said  court  shall  have  power  to  establish  rules  tor  its  govern- 
ment aud  for  the  regulation  of  practice  therein,  and  it  may  punish 
for  contempt  in  the  manner  prescribed  by  the  common  law,  may 
appoint  commissioners,  and  may  exercise  such  powers  as  are  neces- 
sary to  carry  into  effect  the  powers  granted  to  it  by  law. 
R.  S.  §  1070.  r.  S.  Comp.  Stat.  1901.  p.  740. 

The  above  section  was  originally  enacted  in  1863.12  Although  the  court 
cannot  delegate  its  judicial  powers  there  is  no  reason  why  it  cannot  refer 

2Ante,  §J;   139.  212.  sPost.  §  469. 

sPost,  S  1448.'  et  seq.  lOAct  March  3.  1863,  c.  92,  §  4,  12 

<Post.  8  1449.  et  seq.  Stat.  765. 

BPost,  §  1454.  12 Act   March   3,    1863.   e.   92,   §   4, 

«Post.  §  873.  12  Stat.  765. 

7Post.  §  1860. 

399 


§  225  COURT    OF    CLAIMS.  [Code  Fed. 

complicated  accounts  to  a  commissioner.! 3  Exceptions  should  be  taken  if 
a  party  is  not  satisfied  with  the  commissioner's  finding.i*  Tlie  rules  of 
the  Court  of  Claims  are  set  forth  in  an  appendix. 

§  225.     Seal  of  court. 

The  Court  of  Claims  shall  have  a  seal,  with  such  device  as  it  may 
order. 

R.  S.  §  1051,  U.  S.  Comp.  Stat.  1901,  p.  729. 
This  privision  was  enacted  in  1863.16 

§  226.     Court  rooms,  etc.,  how  provided. 

It  shall  be  the  duty  of  the  speaker  of  the  House  of  Eepresentatives 
to  appropriate  such  rooms  in  the  Capitol,  at  Washington,  for  the 
use  of  the  Court  of  Claims,  as  may  be  necessary  for  their  accommo- 
dation, unless  it  appears  to  him  that  such  rooms  cannot  be  so  ap- 
propriated without  interfering  with  the  business  of  Congress.  In 
that  case  the  court  shall  procure,  at  the  city  of  Washington,  such 
rooms  as  may  be  necessary  for  the  transaction  of  their  business. 
R.  S.  §  1051,  U.  S.  Comp.  Stat.  1901,  p.  729. 

This  provision  was  carried  into  the  Revised  Statutes  from  the  orig- 
inal act  establishing  the  Court  of  Claims. is 

§  227.     Quorum  of  the  court. 

Any  three  Judges  of  the  Court  of  Claims  shall  constitute  a 
-quorum;  provided,  that  the  concurrence  of  three  judges  shall  be 
necessary  to  the  decision  of  any  case. 

Act  June  23,  1874,  c.  468,  18  Stat.  252,  U.  S.  Comp.  Stat.  1901,  p.  730. 

§  228.     Officers  of  the  court. 

The  said  Court  [of  Claims]  shall  appoint  a  chief  clerk,  an  assist- 
ant clerk,  if  deemed  necessary,  a  bailiff,  and  a  messenger.  The 
'Clerks  shall  take  an  oath  for  the  faithful  discharge  of  their  duties, 
and  shall  be  under  the  direction  of  the  court  in  the  performance 
thereof;  and  for  misconduct  or  incapacity  they  may  be  removed  by 
it  from  office;  but  the  court  shall  report  such  removals,  with  the 
cause  thereof,  to  Congress,  if  in  session,  or,  if  not,  at  the  next  ses- 

isintermingled  Cotton  Cases,  92  U.  leMarch    3,    1863.    c.    92,    12   Stat. 

S.  651,  23  L.  ed.  756.  760. 

i4Borght  v.  United  States,  12  Ct.  is  Act   Feb.  24,  1855,  c.  122,   §    10, 

CI.  646.  10  Stat.  614. 

400 


Procedure]  JURISDICTION  UNDER  ACT  OF  1887.  §   229   [a] 

sion.    The  bailiff  shall  hold  his  office  for  a  term  of  four  years,  un- 
less sooner  removed  by  the  court  for  cause. 
R.  S.  §   1053,  U.  S.  Comp.  Stat.   1901,  p.  730. 

The  clerk  of  the  Court  of  Claims  and  his  deputy  or  assistant  are  for- 
bidden to  act  as  solicitors,  proctors,  attorneys  or  counsel  in  any  cause  de- 
pending in  that  court. i 

§  229.     Jurisdiction  under  act  of  1887 — what  claims  against  gov- 
ernment cognizable. 

The  Court  of  Claims  shall  have  jurisdiction  to  hear  and  determine 
the  following  matters : 

First.  All  claims  founded  upon  the  Constitution  of  the  United 
States  or  any  law  of  Congress,^^^  except  for  pensions,  or  upon  any 
regulation  of  an  executive  department,  or  upon  any  contract,  ex- 
pressed or  impliedji^^^  with  the  government  of  the  United  States,  or 
for  damages,  liquidated  or  unliquidated,  in  cases  not  sounding  in 
tort,"^*^^  in  respect  of  which  claims  the  party  would  be  entitled  to 
redress  against  the  United  States  either  in  a  court  of  law,  equity, 
or  admiralty  if  the  United  States  were  suable :  provided,  however, 
that  nothing  in  this  section  shall  be  construed  as  giving  to  either 
of  the  courts  herein  mentioned,  i.  e.,  jurisdiction  to  hear  and  de- 
termine claims  growing  out  of  the  late  civil  war,  and  commonly 
known  as  "war  claims,"  or  to  hear  and  determine  other  claims, 
which  have  heretofore  been  rejected, "^^^  or  reported  on  adversely  by 
any  court,  department,  or  commission  authorized  to  hear  and  deter- 
mine the  same. 

Part  of  §  1,  act  Mar.  3,  1887,  c.  359,  24  Stat.  505,  U.  S.  Comp.  Stat. 
1901,  p.  752. 

[a]    In  general — history  of  Court  of  Claims. 

The  above  provision  is  ampler  in  terms  than  the  first  paragraph  of  R.  S. 
§  1059,2  and  thus  virtually  supersedes  it.  The  proviso  as  to  "war  claims" 
is  similar  to  that  annexed  to  the  fourth  paragraph  of  the  same  section. 3 
The  act  from  which  this  provision  :s  taken  is  intended  to  be  an  enlarge- 
ment and  not  a  restriction  of  the  Court  of  Claims'  jurisdiction. 4  It  is 
remedial  and  therefore  should  be  liberally  construed »  Cases  whether 
arising  under  the  first  paragraph  of  R.  S.  §  1059,  or  under  this  provision 
will  be  considered  here.    The  Court  of  Claims  is  a  national  not  a  local  court 

iPost,  §§  496,   499,  as  to  bond  of        < Ingram   v.   United   States,  32   Ct. 

court   of    claims    clerk,    see  post,    §    CI.  147. 
573;  salary,  post,   §  578.  eSouthern  Pacific  R.  Co.  v.  United 

2Po3t,  §  231.  States,  38  Fed.  55. 

sPost,  §  233. 
Fed.  Proc— 26.  401 


"ffl 


S  229   [a] 


COURT   OP   CLAIMS. 


[Code  Fed. 


and  its  jurisdiction  extends  throughout  the  United.  States.6  As  between 
rival  claimants  to  a  fund  it  is  competent  for  the  State  court  to  determine 
which  one  is  entitled  and  the  Court  of  Claims  has  jurisdiction  to  give  ef- 
fect to  such  determination.''  Whether  an  assignee  of  a  claim  can  sue, 
under  the  above  provision  is  not  clear.  Before  the  Court  of  Claims  was 
established  there  was  a  statutory  provision  that  all  transfers  and  assign- 
ments thereafter  made  of  any  claim  against  the  United  States  should  be 
null  and  void  unless  made  after  the  allowance  of  the  same.  8  It  was  subse- 
quently held  that  this  provision  applied  to  the  Court  of  Claims.9  Under  the 
terms  of  the  above  provision  however  it  has  been  held  that  an  assignee  can 
sue.io  Under  the  acts  of  1855  and  1863  establishing  the  Court  of  Claims 
it  was  held  that  money  claims  only  were  cognizable  in  that  coui"t,ii  and 
the  same  interpretation  is  given  the  above  provision  the  law  merely  being 
extended  so  as  to  include  claims  for  money  arising  out  of  equitable  and 
maritime,  as  well  as  legal  demands. 12 

The  United  States  cannot  be  sued  in  their  courts  witho-ut  their  consent, 
and  in  granting  such  consent  Congress  has  absolute  discretion  to  specify 
the  cases  in  which  the  liability  of  tin  government  is  to  be  submitted  to 
the  courts  for  determination.! 4  Jurisdiction  in  such  cases  is  given  to  the 
Court  of  ClaimSjis  which  was  established  in  1855.16  Prior  to  that  time  the 
only  recourse  of  claimants  was  in  an  appeal  to  Congress. i"  The  act  was 
passed  for  the  triple  purpose  of  relieving  Congress,  and  of  protecting  the 
government  by  regular  investigation,  and  of  benefiting  claimants  bj'  afford- 
ing them  a  certain  mode  of  examining  their  claims. is  Originally  the  court 
was  a  court  merely  in  name,  its  powers  extending  only  to  the  preparation  of 
bills  to  be  submitted  to  Congress.  By  an  act  of  1863,  however,i9  it  was 
authorized  to  render  final  judgment  subject  to  appeal  to  the  Supreme 
Court.  But  that  act  contained  a  provision  that  "no  money  shall  be  paid 
out  of  the  Treasury  upon  any  claim  passed  upon  by  the  Court  of  Claims, 
until  after  an  appropriation  therefor  shall  be  estimated  for  by  the  Secre- 
tary   of    the    Treasury." 20      This    provision    the    Supreme    Court    deemed 


^United  States  v.  BorcherJing,  185 
U.  S.  234,  46  L.  ed.  800.  22  Sup.  Ct. 
Rep.  607;  Kings  Case,  27  Ct.  CI.  529. 

"See  United  States  v.  Boroherling. 
185  U.  S.  232,  233.  46  L.  ed.  889,  22 
Sup.  Ct.  Rep.  607. 

8Act  1853.  §  1,  10  Stat.  170. 

^United  States  v.  Gillis,  95  U.  S. 
407,  24  L.  ed.  503. 

loEmmons  v.  United  States,  48 
Fed.  44. 

iiUnited  States  v.  Alire,  6  Wall. 
573,  18  L.  ed.  947.  See  also  Bonner 
V.  United  States.  9  Wall.  156,  19  L. 
ed.  666. 

i2United  States  v.  Jones.  131  U. 
S.  18.  33  L.  ed.  92,  9  Sup.  Ct.  Rep. 
669.     See  also  United  States  v.  Drew, 


131  U.  S.  21,  33  L.  ed.  93,  9  Sup.  Ct. 
Rep.  672. 

i4Schillinger  v.  United  States,  155 
U.  S.  166.  39  L.  ed.  110,  15  Sup.  Ct. 
Rep.  85.     See  ante,  §  2. 

isSee  Johnson  v.  United  States, 
160  U.  S.  549,  40  L.  ed.  529,  16  Sup. 
Ct.  Rep.  377. 

i6Act  Feb.  24,  1855,  c.  122,  10  Stat. 
612. 

iTSehillinger  v.  United  States,  155 
U.  S.  166.  39  L.  ed.  110,  15  Sup.  Ct. 
Rep.  85:  United  States  v.  Klein,  13 
Wall.  144.  20  L.  ed.  5i24. 

isUnited  States  v.  Klein,  13  Wall. 
144.  20  L.  ed.  524. 

19 Act  March  3,  1863,  c.  92.  10  Stat. 
766. 

20See  §  14  of  act  above  mentioned. 


402 


Procedure]  JURISDICTION  UNDER  ACT  OF   1S87.  §   229    [c] 

"inconsistent  with  the  finality  essential  to  judicial  decisions,"!  and  it  was 
thereafter  repealed. 2  Since  that  time  the  Court  of  Claims  has  exercised 
all  the  functions  of  a  court  from  whose  judgments  appeals  regularly  lie 
to  the  Supreme  Court. 3 

[b]     Claims  founded  on  any  law  of  Congress. 

The  grant  of  jurisdiction  to  the  Court  of  Claims,  of  all  claims  founded 
.  .  .  upon  any  law  of  Congress"  is  given  also  by  R.  S.  §  1059.5  While 
apparently  broad  enough  to  include  every  claim  created  by  statute,  it 
does  not  extend  to  cases  for  which  a  specific  jurisdiction  has  been  provided 
by  an  earlier  statute.6  Thus  jurisdiction  has  been  denied  the  Court  of 
Claims,  over  a  suit  to  recover  payment  of  revenue  duties  on  the 
grovmd  that  a  right  of  action  was  given  against  the  collector  by  an  earlier 
statute."  That  remedy  has  been  modified  by  subsequent  statutes  however, 
and  for  duties  exacted  upon  goods  not  imported  at  all  there  is  a  remedy 
as  upon  a  claim  founded  on  a  law  of  Congress. s  The  Court  of  Claims  has 
jurisdiction  also  in  the  following  cases:  over  a  suit  to  recover  amount 
allowed  by  internal  revenue  commissioner  upon  a  brewer's  claim  for  excess 
of  stamps  used  in  payment  of  special  tax; 9  over  suit  for  return  of  excess 
paid  as  purchase  price  for  public  lands  even  though  the  Secretary  of  the 
Interior    is    required    to    make    such    return.io 

[cj     Contracts  express  or  implied. 

Jurisdiction  over  claims  against  the  government  arising  from  contract 
is  vested  in  the  Court  of  Claims.  12  The  contract  must  be  one  to  which 
the  United  States  is  a  party  in  the  same  sense  in  Avhich  an  individual 
might  be,  and  the  ordinary  principles  of  contracts  must  and  should  applyis 
Thus  there  can  be  no  recovery  under  a  secret  service  contract  since  the 
bringing  of  suit  is  itself  a  breach  of  the  implied  condition  of  secrecy. 1* 
So  also  the  court  has  no  jurisdiction  to  allow  mere  extra  allowances  in  a 
case  where  there  is  no  promise  express  or  implied  to  that  effect.i* 

An  implied  contract  may  be  inferred  against  the  United  States  and  suit 

lUnited  States  v.  Klein,  1.3  Wall.  sDoolev   v.   United   States.   182   U. 

144,  20  L.  ed.  524;  Gordon  v.  United  S.   224.   45   L.   ed.   1079,   21   Sup.   Ct. 

States,  2  Wall.  561,  17  L.  ed.  921.  Rep.  762. 

2Act  March  17,  1866,  c.  19,  §  1,  14  !»United  States  v.  Kaufman.  96  U. 

Stat.  9.  S.  568.  24  L.  ed.  792. 

3Great  Falls  MSg.  Co.  v.  Attorney  lOMedburv   v.   United   States,    173 

General.  124  U.  S.  599.  31  L.  ed.  533,  U.  S.  492,  43  L.  ed.  780,  19  Sup.  Ct. 

8  Sup.   Ct.  Rep.  631;   United   States  Rep.  503. 

V.  Klein.  13  Wall.  145.  20  L.  ed.  524;  i2Case  v.  Terrell,  11  Wall.  203.  20 

United  States  v.  Jones.  119  U.  S.  477,  L.  ed.  134. 

30  L.  ed.  440.  7  Sup.  Ct.  Rep.  283.  isSmoots    Case.    15    Wall.    45,    21 

sPost.  §  231.  L.  ed.  107. 

sFoster   v.    United   States,    32    Ct.  KTotten  v.  United  States,  92  U.  S. 

CI.    184.     collecting    and    classifying  107,  23  L.  ed.  605. 

cases  of  claims  under  laws  of  Con-  isHawkins  v.  United  States.  96  U. 

gress.  S.  698,  24  L.  ed.  607. 

"Nichols  v.  United  States.  7  Wall. 
122,  19  L.  ed.  125. 

403 


§  229   [d]  COURT  OF   CLAIMS.  [Code  Fed. 

brought  thereon.  16  Thus  the  salvage  of  Federal  property,!'''  or  the  giving 
of  a  receipt  and  voucher  by  a  Federal  officer  for  army  provisions  furnishcdi** 
or  the  taking  of  private  property  at  a  time  of  war  or  impending  danger>i9 
raise  implied  contracts  enforceable  in  the  Court  of  Claims.  But  the  appro- 
priation by  the  government  of  private  property  raises  no  implied  contract 
to  pay  therefor  unless  the  government  admits  that  it  is  private  property. 20 
In  case  of  services  the  promise  to  pay  can  be  implied  only  when  the  court 
can  see  that  they  were  performed  under  such  circumstances  as  would 
authorize  the  claimant  to  entertain  reasonable  expectation  of  their  pay- 
ment. 1  Where  a  greater  sum  has  been  paid  voluntarily,  for  public  lands, 
than  the  law  requires  the  excess  cannot  be  recovered  in  a  Court  of  Claims 
on  the  ground  of  implied  contract.-  A  claim  for  damages  made  by  a 
government  contractor  for  improper  interference  on  the  part  of  the  gov- 
ernment agent,  with  a  contract  made  by  such  agent,  is  justiciable  under  this 
provision. 3 

Where  the  claimant  prays  reformation  of  a  contract  and  then  for  dam- 
ages for  breach  of  such  contract  as  reformed,  the  case  is  cognizable  in  the 
Court  of  Claims  notwithstanding  the  prerequisite  need  of  equitable  aid  to 
establish  it.4 

[d]     Cases  sounding  in  tort. 

The  jurisdiction  of  the  Court  of  Claims  does  not  extend  to  cases  of  tort* 
nor  can  such  a  suit  be  maintained  by  framing  the  claim  on  an  implied  con- 
tract.'?  Hence  it  has  no  jurisdiction  over  a  suit  for  damages  for  injuries 
suffered  by  reason  of  defect  in  public  building,^  nor  for  injury  caused  by 
diversion  of  a  water  course. »  Nor  has  it  jurisdiction  over  a  suit  for 
infringement  of  a  patent  by  the  United  States,  10  nor  for  the  appropriation 

16 Coleman   v.    United   States,    152        6Reed  v.   United  States,   11   Wall. 

U.  S.  99,  38  L.  ed.  368,  14  Sup.  Ct.  603.  20  L.  ed.  220;  German  Bank  v. 

Rep.  473.  United  States,   148  U.  S.  580,  37   L. 

i^Urtited  States  v.  Morgan,  99  Fed.  ed.  564,  13  Sup.  Ct.  Rep.  702;   Schil- 

570,  39  C.  C.  A.  653.  linger  v.  United  States.  155  U.  S.  167, 

isSalomon    v.    United    States,    19  39   L.   ed.    108.  15   Sup.   Ct.  Rep.   85; 

Wall.  17,  22  L.  ed.  46.  Russell   v.   United  States,   182  U.   S. 

isUnited      States    v.     Russell,     13  530,  45  L.  ed.  1215,  21  Sup.  Ct.  Rep. 

Wall.  623,  20  L.  ed.  474.  899. 

2 oUnited  States  V.  Great  Falls  Mfg.        ^Hill   v.   United   States,   149  U.   S. 

Co.     112  U.  S.  645,  28  L.  ed.  846,  5  598,  37  L.  ed.  862,  13  Sup.  Ct.  Rep. 

Sup.  Ct.  Rep.  306;  Langford  v.  United  1011. 

States,  101  U.  S.  341,  25  L.  ed.  1010;        sBigby  v.  United  States,  103  Fed. 

Hill  V.  United  States,  149  U.  S.  593,  597. 
37  L.  ed.  862,  13  Sup.  Ct.  Rep.  1011.        sMills    v.    United    States,   46    Fed. 

iColeman  v.  United  States,  152  U.  738,  12  L.R.A.  673. 
S.  96,  38  L.  ed.  308,  14  Sup.  Ct.  Rep.        lORussell  v.  United  States,  182  U. 

473.  S.   535,   45  L.   ed.    1217,  21    Sup.   Ct. 

2United  States  v.  Edmondston,  181  Rep.     899;      Sehillinger     v.     United 

U.  S.  500,  45  L.  ed.  97.^,  21  Sup.  Ct.  States,  155  U.  ».   163,  39  L.  ed.  108, 

Rep.  718.  15  Sup.  Ct.  Rep.  85;  United  States  v. 

sBowe  V.  United  States,  42  Fed.  761.  Berdan,  etc.  Co.  156  U.  S.  565,  39  L. 

■^United     States    v.    Milliken    Imp.  ed.  533,  15  Sup.  Ct.  Rep.  420'. 
Co.  202  U.  S.   168,  50  L.  ed.  980,  26 
Sup.  Ct.  Rep.  572. 

404 


Procedure]  JURISDICTION   IN  MATTER  OF   SET-OFFS.  §   230 

of  private  property  where  the  United  States  asserts  title  thereto.n  But 
where  the  suit  is  for  compensation  for  the  use  of  a  patented  invention, 
the  plaintiff's  right  in  which  is  admitted,  the  suit  arises  on  an  implied 
contract  and  the  Court  of  Claims   has  juiisdiction.12 

[e]     Claims   heretofore    rejected. 

The  disallowance  of  an  account  by  the  First  Comptroller  of  the  Treasury 
is  not  a  rejection  or  disallowance  of  a  claim  by  "any  court  department  or 
commission,"  within  the  meaning  of  this  provision; i*  nor  is  the  disallow- 
ance of  a  district  attorney's  claim,  by  the  department  having  such  ac- 
counts in  charge. 15 

§  230,  — jurisdiction  in  matter  of  set-oifs,  etc.,  and  proviso  as 
to  time  of  suit,  and  suits  by  Federal  officers. 
The  Court  of  Claims  shall  have  jurisdiction  to  hear  and  deter- 
mined the  following  matters :  .  .  .  Second.  All  set-offs,  coun- 
terclaims, claims  for  damages,  whether  liquidated  or  unliquidated, 
or  other  demands  whatsoever  on  the  part  of  the  government  of  the 
United  States  agaiust  any  claimant  against  the  government  in  said 
court :  provided,  that  no  suit  against'  the  government  of  the  United 
States,  shall  be  allowed  under  this  act  unless  the  same  shall  have 
been  brought  within  six  years  after  the  right  accrued  for  which 
the  claim  is  made :  provided  further,  that  no  suit,  against  the  gov- 
ernment of  the  United  States,  brought  by  any  officer  of  the  United 
States  to  recover  fees  for  services  alleged  to  have  been  performed 
for  the  United  States,  shall  be  allowed  under  this  act  unless  an  ac- 
count for  said  fees  shall  have  been  rendered  and  finally  acted  upon 
according  to  the  provisions  of  the  act  of  July  31,  1894  (chapter 
174,  28th  Statutes  at  Large,  page  162),  unless  the  proper  account- 
ing officer  of  the  treasury  fails  to  finally  act  thereon  within  six 
months  after  the  account  is  received  in  said  office. 

Part  of  §  1  of  act  Mar.  3,  1887,  c.  359,  24  Stat.  505,  as  amended  June 
27,  1898,  c.  503,  §  1,  .30  Stat.  494  and  act  July  1,  1898,  c.  546,  §  3,  30- 
Stat.  597,  U.  S.  Comp.  Stat.  1901,  p.  752. 

The  first  clause  of  the  above  proA'ision   is   almost  identical    with  para- 

iiLangford   v.   United    States,    101         i^United  States  v.  Harmon.  147  U. 

U,  S.  341,  25  L.  ed.  1011.  S.  273.  37  L.  ed.  167,  13  Sup.  Ct.  Rep. 

isUnited  States  v.  Palmer,  128  U.  327.     Prior  to  this  decision  the  con- 

S.  269,  32  L.  ed.  442.  9  Sup.  Ct.  Rep.  trary  view  had  obtained  in  some  cir- 

104;     Hollister    v.     Benedict.     Burn-  cuit  courts.     Bliss  v.  United  States, 

ham,  etc.  Co.  113  U.  S.  59.  28  L.  ed.  34  Fed.  781;  Rand  v.  United  States, 

901,  5   Sup.  Ct.   Rep.   717.     See   also  36  Fed.  671  ;  Preston  v.  United  States. 

Schillinger  v.  United   States.   155  U.  37  Fed.  417. 

S.  169,  39  L.  ed.  108,  15  Sup.  Ct.  Rep.        isStanton  v.  Uniteil  States,  37  Fed. 

85.  2.54. 

40.'5 


§   231  COURT  OF   CLAIMS.  [Code  Fed. 

graph  2  of  R.  S.  §  1059 ;i  and  it  has  been  contended  that  it  violates  the 
Seventh  Amendment  providing  that  in  suits  at  common  law  where  the 
value  in  controversy  shall  exceed  twenty  ilollars  the  right  of  trial  by  jury 
shall  be  preserved.  Its  constitutionality  has  however  been  sustained.2 
The  period  of  limitations  set  forth  above  is  the  same  as  that  prescribed 
for  the  bringing  of  claims  against  the  United  States  by  R.  S.  §  1069.3 
It  is  jurisdictional  and  cannot  be  waived  by  government  officers. 4  Where 
any  part  of  a  claim  arises  before  the  six  years  prior  to  the  filing  of  the 
petition  the  claimant  is  barred  as  to  such  part.5  The  act  from  which  the 
above  provision  is  taken  superseded  only  such  previous  legislation  as  was 
inconsistent  with  its  provisions,  hence  it  did  not  bar  that  provision  of  R. 
S.  §  1069,6  extending  the  period  of  limitations  in  certain  cases,  and  it 
must  be  interpretated  as  if  the  latter  provision  were  added  to  it.T 

§  231.     Jurisdiction  as  defined  by  Revised  Statutes. 

The  Court  of  Claims  shall  have  jurisdiction  to  hear  and  deter- 
mine the  following  matters:  First.  All  claims  founded  upon  any 
law  of  Congress,  or  upon  any  regulation  of  an  Executive  Depart- 
;tnent,  or  upon  any  contract,  express  or  implied,  with  the  govern- 
ment of  the  United  States,  and  all  claims  which  may  be  referred  to 
it  by  either  House  of  Congress.  Second.  All  set-offs,  counterclaims, 
claims  for  damages,  whether  liquidated  or  unliquidated,  or  other 
demands  whatsoever,  on  the  part  of  the  government  of  the  United 
.States  against  any  person  making  claim  against  the  government  in 
said  court. 

Paragraphs  1  and  2,  R.  S.  §  1059,  U.  S.  Comp.  Stat.  1901,  pp.  734,  735. 

These  provisions  are  virtually  superseded  by  the  act  of  1887.9 

§  232.  —  claims  of  disbursing  officers  for  relief  from  unavoid- 
able loss. 

The  Court  of  Claims  shall  have  jurisdiction  to  hear  and  determine 
the  following  matters :  .  .  .  Third.  The  claim  of  any  paymas- 
ter, quartermaster,  commissary  of  subsistence,  or  other  disbursing 
officer  of  the  United  States,  or  of  his  administrators  or  executors, 
for  relief  from  responsibility  on  account  of  capture  or  otherwise, 
while  in  the  line  of  his  duty,  of  government  funds,  vouchers,  rec- 

iPost.  §  231.  epost.  §  873. 

zMcElrath  v.  United  States.  102  ^United  States  v.  Greathouse,  166 
U.  S.  440.  26  L.  ed.  191.  U.  S.  601.  41  L.  ed.  1130,  17  Sup.  Ct. 

sPost.  §  873.  Rep.  701. 

4Finn  v.  United  States    123  U.  S.         9 Ante.  §§  229,  230. 
233,  31  L.  ed.  130,  8  Sup.  Ct.  Rep.  82. 

STimraonds    v.    United    States,    84 
Fed.  933,  28  C.  C.  A.  570. 

406 


Procedure]  JURISDICTION   UNDER  REVISED  STATUTES.  {  234 

ords,  or  papers  in  his  charge,  and  for  which  such  officer  was  and  is 
held  responsible. 

Paragraph  3,  R.  S.   §   1059,  U.  S.  Comp.  Stat.  1901,  p.  736. 

This  provision  was  carried  into  the  Revised  Statutes  from  an  act  of  186611 
The  jurisdiction  is  subsequently  enlarged  and  defined  by  the  act  of  18S712 
in  such  a  way  that  this  provision  may  be  deemed  superseded. 

§  233.  —  claims  for  captured  and  abandoned  property. 

The  Court  of  Claims  shall  have  jurisdiction  to  hear  and  deter- 
mine the  following  matters :  .  .  .  Fourth.  Of  all  claims  for  the 
proceeds  of  captured  or  al^andoned  property,  as  provided  by  the 
act  of  March  12,  1863,  chapter  one  hundred  and  twenty,  entitled 
^'An  act  to  provide  for  the  collection  of  abandoned  property  and  for 
the  prevention  of  frauds  in  insurrectionary  districts  within  the 
United  States,"  or  by  the  act  of  July  2,  1864,  chapter  two  hundred 
and  twenty-five,  being  an  act  in  addition  thereto:  Provided,  That 
the  remedy  given  in  cases  of  seizure  under  the  said  acts,  by  pre- 
ferring claim  in  the  Court  of  Claims,  shall  be  exclusive,  precluding 
the  owner  of  any  property  taken  by  agents  of  the  Treasury  Depart- 
ment as  abandoned  or  captured  property  in  virtue  or  under  color 
of  said  acts  from  suit  at  common  law,  or  any  other  mode  of  redress 
whatever,  before  any  court  other  than  said  Court  of  Claims :  Pro- 
vided also.  That  the  jurisdiction  of  the  Court  of  Claims  shall  not 
■extend  to  any  claim  against  the  United  States  growing  out  of  the 
destruction  or  appropriation  of.  or  damage  to,  property  by  the 
army  or  nsLVj  engaged  in  the  suppression  of  the  rel)ellion. 

Paragraph  4,  R.  S.  §  1059,  as  amended  act  Feb.  18,  1875.  c.  80,  18  Stat. 
318,  U.  S.  Comp.  Stat.  1901,  p.  736. 

The  amendment  of  1875  consisted  in  the  addition  of  the  last  proviso, 
■providing  that  the  court's  jurisdiction  shall  not  extend  to  war  claims. 
Similar  provisions  are  found  in  other  sections  of  this  chapter. 1 4  Under  the 
captured  and  abandoned  property  act  above  mentioned  the  Court  of  Claims 
may  render  judgment  not  only  generally  for  the  claimant  but  for  a  specfic 
•sum  as  due  to  him. is 

§  234.     Jurisdiction   over  petitions  and   bills   for   claims  trans- 
mitted from  Congress.  i 
All  petitions  and  bills  praying  or  providing  for  the  satisfaction 

"Act  May  9,  1866,  c.  75,  §   1,  14        i^Post.  §  244:  ante.  ?  230. 
Stat.  44.  laUnitcd    States    v.    Anderson,    9 

i2Amte,  §§  229,  230.  Wall.  72,  19  L.  ed.  619. 

407 


§  235  COURT  OP   CLAIMS.  [Code   Fed. 

of  private  claims  against  the  government,  founded  upon  any  law 
of  Congress,  or  upon  any  regulation  of  an  executive  department,  or 
upon  any  contract,  expressed  or  implied,  with  the  government  of 
the  United  States,  shall,  unless  otherwise  ordered  by  resolution  of 
the  house  in  which  they  are  introduced,  be  transmitted  by  the 
secretary  of  the  Senate  or  the  clerk  of  the  House  of  Eepresentatives, 
with  all  the  accompanying  documents,  to  the  Court  of  Claims. 
R.  S.  §  1060,  U.  S.  Comp.  Stat.  1901,  p.  736. 

This  section  was  enacted  in  1863.17  The  jurisdiction  of  the  Court  of 
Claims  over  cases  referred  to  it  by  either  House  of  Congress,  is  subject  to 
the  general  statute  of  limitations  regulating  its  jurisdiction.! 8 

§  235.     Claims  pending  before  Congress  may  be  transmitted  to 
Court  of  Claims. 
Whenever  a  claim  or  matter  is  pending  before  any  committee  of 
the  Senate  or  House  of  Eepresentatives,  or  before  either  house  of 
Congress,  which  involves  the  investigation  and  determination  of 
facts,  the  committee  or  house  may  cause  the  same,  with  the  vouch- 
ers, papers,  proofs,  and  documents  pertaining  thereto,  to  be  trans- 
mitted to  the  Court  of  Claims  of  the  United  States,  and  the  same 
shall  there  be  proceeded  in  under  such  rules  as  the  court  may  adopt. 
When  the  facts  shall  have  been  found,  the  court  shall  not  enter 
judgment  thereon,  but  shall  report  the  same  to  the  committee  or 
to  the  house  by  which  the  case  was  transmitted  for  its  consideration. 
§  1,  act  Mar.  3,  1883,  c.  116,  22  Stat.  485,  U.  S.  Comp.  Stat.  1901,  p.  748. 

Jurisdiction  to  render  judgments  or  decrees  in  cases  referred  to  it  under 
the  above  section  is  given  to  the  Court  of  Claims  where  under  the 
existing  law  it  can  exercise  such  jiuisdiction.i  The  act  from  which  this 
section  is  taken  is  known  as  the  "Bowman  act."  It  is  remedial  in  char- 
acter and  should  be  liberally  construed. 2  It  is  the  duty  of  the  court  acting 
under  this  section  to  settle  the  ultimate  facts  so  that  Congress  may  assume 
them  as  a  basis  for  its  legislative  judgment  and  discretion. 3  These  facts 
should  be  ascertained  in  strict  conformity  to  the  rules  of  judicial  procedure 
from  competent  evidence  properly  taken. 4  Cross-examination  should  be  as 
prescribed  in  R.  S.  §   1083.5     The  object  of  the  provision  as  to  the  trans- 

iTAct  March  3,  1863,  c.  92,  §  2,  12        sMoore  v.  United  States,  25  Ct.  CI. 

Stat.  765.  82. 

iSFord  v.  United  States,  116  U.  S.        4 West  Vir^nnia    v.   United   States, 

218.  29  L.  ed.   610,  6  Sup.   Ct.  Rep.  37  Ct.  CI.  201. 
360.  spost.    §    14G5;    Smith    v.    United 

iPost.  S  2.38.  States,  19  Ct.  CI.  692. 

2Duplantier   v.    United   States,   27 
Ct.  CI.  323. 

408 


Procedure]  JURISDICTION  OVER  KEFERRED  CLAIMS.  §  236 

mission  of  vouchers  and  papers  was  evidently  to  take  from  Congress  every- 
thing relating  to  the  claim  without  subjecting  the  particular  Congres- 
sional committee  to  the  duty  of  determining  the  relevancy  and  competency 
of  the  pai>ers  as  legal  evidence. 6 

§  236.     Jurisdiction   over   claims   referred   by   executive   depart- 
ments. 

Whenever  any  claim  is  made  against  any  executive  department, 
involving  disputed  facts  or  controverted  questions  of  law,  where 
the  amount  in  controversy  exceeds  three  thousand  dollars,  or  where 
the  decision  will  affect  a  class  of  cases,  or  furnish  a  precedent  for 
the  future  action  of  any  executive  department  in  the  adjustment  of 
a  class  of  cases,  without  regard  to  the  amount  involved  in  the  par- 
ticular case,  or  where  any  authority,  right,  privilege,  or  exemption 
is  claimed  or  denied  under  the  Constitution  of  the  United  States, 
the  head  of  such  department  may  cause  such  claim,  with  all  the 
vouchers,  papers,  proofs  and  documents  pertaining  thereto,  to  be 
transmitted  to  the  Court  of  Claims,  and  the  same  shall  be  there  pro- 
ceeded in  as  if  originally  commenced  by  the  voluntary  action  of  the 
claimant;  and  the  Secretary  of  the  Treasury  may,  upon  the  certifi- 
cate of  any  auditor  or  Comptroller  of  the  Treasury,  direct  any  ac- 
count, matter,  claim,  of  the  character,  amount,  or  class  described  in 
this  section,  to  be  transmitted,  with  all  the  vouchers,  papers,  docu- 
ments, and  proofs  pertaining  thereto,  to  the  said  court,  for  trial  and 
adjudication :  provided,  that  no  case  shall  be  referred  by  any  head 
of  a  department  unless  it  belongs  to  one  of  the  several  classes  of 
cases  which,  by  reason  of  the  subject  matter  and  character,  the  said 
court  might,  under  existing  laws,  take  jurisdiction  of  on  such  volun- 
tary action  of  the  claimant. 

R.  S.  §  1063,  U.  S.  Oomp.  Stat.  1901,  p.  738. 

Procedure  in  such  cases  is  stated  elsewhere.8  This  section  is  not  re- 
pealed, expressly  or  by  implication,  either  by  §  12  of  the  "Tucker  act"9 
or  by  §  2  of  the  "Bowman  act."io  The  latter  act  should  be  construed  as  if 
it  were  a  proviso  of  this  section.!  i  A  claim  must  be  pending  in  an  executive 
department  before  it  can  be  referred. 12  When  properly  referred,  the  Court 
of  Claims  has  jurisdiction  over  a  claim  although  the  rights  of  conflicting 

«See  Brannen  v.  United  States,  20  551,  16  Sup.  Ct.  Rep.  402. 

Ct.  CI.  221.  iiUnited  States  v.  New  York,  160 

sPost.  §  1476,  et  seq.  U.  S.  610,  40  L.  ed.  551,  16  Sup.  Ct. 

9Post,  §  237.  Rep.  402. 

loPost.   §   2.38:     United     States   v.  12 Armstrong  v.   United   States,  29 

New  York,  160  U.  S.  598,  40  L.  ed.  Ct.  CI.  168. 

409 


:«  237  COURT    OF    CLAIMS.  [Code  Fed. 

claimants  are  involved.is  But  a  war  claim  cannot  be  referred  imder  this 
pi'ovision  so  as  to  give  the  court  jurisdiction.! ^  Xor  can  a  claim  already 
•adjudicated  against  the  claimant. is  So  also  a  diplomatic  claim  presented 
by  a  foreign  government  cannot  be  considered  by   the  Court  of  Claims. is 

§  237.  — on  referred  claims  under  act  of  1887. 

When  any  claim  or  matter  ma}^  be  pending  in  any  of  the  execu- 
tive departments  which  involves  controverted  questions  of  fact  or 
law,  the  head  of  sucli  department,  with  the  consent  of  the  claim- 
ant, may  transmit  the  same,  with  the  vouchers,  papers,  proofs,  and 
documents  pertaining  thereto,  to  said  Court  of  Claims,  and  the  same 
shall  be  there  proceeded  in  under  such  rules  as  the  court  may  adopt. 
When  the  facts  and  conclusions  of  law  shall  have  been  found,  the 
court  shall  report  its  findings  to  the  department  by  which  it  was 
transmitted. 
§  12,  act  Mar.  3,  18S7,  c.  359,  24  Stat.  507,  U.  S.  Comp.  Stat.  1901,  p.  756. 

As  stated  in  the  preceding  section  the  above  provision  does  not  supersede 
that  section,  but  refers  only  to  claims  which  the  head  of  an  Executive 
Department,  with  the  express  consent  of  the  claimant  may  send  to  the 
Court  of  Claims  in  order  to  obtain  a  report  of  facts  and  law.i  This  the 
ilepartment  may  regard  as  only  advisory2  and  the  matter  is  not  appealable.s 

§  238.  —  on  referred  claims  under  act  of  1883. 

When  a  claim  or  matter  is  pending  in  any  of  the  executive  de- 
partments which  may  involve  controverted  questions  of  fact  or  law, 
the  head  of  such  department  may  transmit  the  same,  with  the 
vouchers,  papers,  proofs  and  documents  pertaining  thereto,  to  said 
'Court,  and  the  same  shall  be  there  proceeded  in  under  such  rules 
as  the  court  may  adopt.  When  the  facts  and  conclusions  of  law 
^hall  have  been  found,  the  court  shall  not  enter  judgment  thereon, 
but  shall  report  its  findings  and  opinions  to  the  department  by 
which  it  was  transmitted  for  its  guidance  and  action. 

§   2,  act   Mar.   3,   1883,   c.   116,  22   Stat.   485,   U.  S.   Comp.   Stat.   1901, 
p.  748. 

This  provision  does  not  repeal  R.  S.   §   1003,5  nor  is  it  in  conflict  with 

isBorcherling  v.  United  States,  35        lUnited   States  v.  New  York.   160 

Ct.  CI.  342.  U.  S.  613.  40  L.  ed.  556,  16  Sup.  Ct. 

i^United  States  v.  Winchester,  etc.  Rep.  402. 
R.  Co.  163  U.  S.  244.  41  L.  ed.  146,  16        2in  re  Sanborn,  148  U.  S.  226,  37 

Sup.  Ct.  Rep.  993.  L.  ed.  431,  13  Sup.  Ct.  Rep.  577. 

isBaltimore,  etc.  R.  Co.  v.  United        sin  re  Sanborn,  148  U.  S.  222,  37 

States,  34  Ct.  CI.  484.  L.  ed.  431.  13  Sup.  Ct.  Rep.  577. 

leBerger  v.  United  States,  36   Ct.        5 Ante.   §   236. 
-CI.  243. 

410 


Procedure]  JURISDICTION  OVER  REFERRED  CLAIMS.  §  240 

«  somewhat  similar  provision  of  the  ''Tucker  act. '"6  By  a  provision  of  the 
^'Tucker  act"  cases  referred  to  the  Court  of  Claims*  under  the  above  provision 
mav  be  adjudicated  by  that  court,  and  judgment  rendered,  wliere  under 
the  existing  law  such  court  has  jurisdiction. t 

§  239.     Juisdiction  to  render  judgment  on  a  referred  claim. 

In  every  case  which  shall  come  before  the  Court  of  Claims,  or  is 
now  pending  therein,  under  the  provisions  of  an  act  entitled  "An 
act  to  afford  assistance  and  relief  to  Congress  and  the  executive  de- 
partments in  the  investigation  of  claims  and  demands  against  the 
government/'  approved  ]\Iarch  3rd,  1883,  if  it  shall  appear  to  the 
satisfaction  of  the  court,  upon  the  facts  established,  that  it  has 
jurisdiction  to  render  judgment  or  decree  thereon  under  existing 
laws  or  under  the  provisions  of  this  act,  it  shall  proceed  to  do  so, 
giving  to  either  party  such  further  opportunity  for  hearing  as  in 
its  judgment  justice  shall  require,  and  report  its  proceedings  therein 
to  either  house  of  Congress  or  to  the  department  by  which  the  same 
was  referred  to  said  court. 

§  13,  act  Mar.   3,   1887,  c.  359,  24  Stat.  507,  U.   S.   Comp.   Stat.  1901, 
p.    757. 

This  provision  is  mandatory  and  if  the  court  has  power  to  render  judg- 
ment it  is  its  duty  to  do  so.9  The  object  of  the  provision  is  to  save  time  by 
-adjudicating  the  cases  referred,  at  once,  where  possible  instead  of  first 
remitting  them  to  the  department. lo 

§  240.     Duty  to  report  to  Congress  on  referred  claims. 

Whenever  any  bill,  except  for  a  pension,  shall  be  pending  in 
either  House  of  Congress  providing  for  the  payment  of  a  claim 
against  the  United  States,  legal  or  equitable,  or  for  a  grant,  gift, 
•or  bounty  to  any  person,  the  house  in  which  such  bill  is  pending 
may  refer  the  same  to  the  Court  of  Claims,  who  shall  proceed  with 
the  same  in  accordance  with  the  provisions  of  tlie  act  approved 
March  3rd,  1883.  entitled  an  "Act  to  afford  assistance  and  relief  to 
■Congress  and  the  executive  departments  in  the  investigation  of 
claims  and  demands  against  the  government,"  and  report  to  such 
house  the  facts  in  the  case  and  the  amount,  where  the  same  can 
be  liquidated,  including  any  facts  bearing  upon  the  question  whether 
there  has  heen  delay  or  laches  in  presenting  sucli  claim  or  applying 

6Ante.  §  237.  U.  S.  614,  40  L.  ed.  556,  16  Sup.  Ct. 

7Po-;t,  §  239.  Rep.  402. 

9United   States  v.   Xew   York.    160         loibid. 

411 


§  241  COURT  OP  CLAIMS.  [Code  Fed, 

for  such  grant,  gift,  or  bounty,  and  any  facts  bearing  u})on  the 
question  whether  the  bar  of  any  statute  of  limitation  should  be  re- 
moved or  which  shall  b&  claimed  to  excuse  the  claimant  for  not 
having  resorted  to  any  established  legal  remedy. 

§  14,  act  Mar.  3,  1887,  c.  359,  24  Stat.  507,  U.  S.  Comp.  Stat.  1901,  p. 
757. 

With  the  exception  of  bills  for  pensions,  the  jurisdiction  here  conferred 
is  unrestricted.  The  reference  to  the  act  of  1883,  known  as  the  "Bowman 
act"  is  not  a  jurisdictional  limitation,  but  is  intended  to  indicate  the  pro- 
cedure to  be  followed.  12 

§  241.     Jurisdiction  over  claims  for  Indian  depredations. 

In  additon  to  the  jurisdiction  which  now  is,  or  may  hereafter  be, 
conferred  upon  the  Court  of  Claims,  said  court  shall  have  and  pos- 
sess jurisdiction  and  authority  to  inquire  into  and  finally  adjudi- 
cate, in  the  manner  provided  in  this  act,  all  claims  of  the  following 
classes,  namely:  First.  All  claims  for  property  of  citizens  of  the 
United  fStates  taken  or  destroyed  by  Indians  belonging  to  any  band, 
tribe,  or  nation,  in  amity  with  the  United  States,  without  just  cause 
or  provocation  on  the  part  of  the  owner  or  agent  in  charge,  and  not 
returned  or  paid  for.  Second.  Such  jurisdiction  shall  also  extend 
to  all  cases  which  have  been  examined  and  allowed  by  the  interior 
department  and  also  to  such  cases  as  were  authorized  to  be  examined 
under  the  act  of  Congress  making  appropriations  for  the  current 
and  contingent  expenses  of  the  Indian  department,  and  for  fulfill- 
ing treaty  stipulations  wdth  various  Indian  tribes  for  the  year  end- 
ing June  thirtietli,  eighteen  hundred  and  eighty-six,  and  for  other 
purposes,  approved  March  third,  eighteen  hundred  and  eighty-five,^^ 
and  under  subsequent  acts,  subject  however,  to  the  limitations 
hereinafter  provided.  Third.  All  just  offsets  and  counterclaims  to 
any  claim  of  either  of  the  preceding  classes  which  may  be  before 
such  court  for  determination. 

§  1    act  Mar.   3,   r891,  c.   538,   26   Stat.   851,  U.   S.   Comp.   Stat.    1901,   pp. 
758-760. 

By  the  act  of  18S5,i-»  referred  to  in  the  second  clause  of  the  above  section. 
Congress  set  aside  the  sum  of  ten  thousand  dollars  "for  the  investigation 
of  certain  Indian  depredation  claims,"  and  provided  that  a  list  of  all  such 
claims  should  be  filed  in  the  Department  of  the  Interior.      Subsequent  ap- 

i2Dowd.y  V.  United  States,  26  Ct.  Stat.  376,  U.  S.  Comp.  Stat.  1901.  p. 
CI.  220.     ■  759. 

i3See  act  :\Iarch  3,  1885,  c.  341,  23         i4lbid. 

412 


Procedure]  JURISDICTION  TO  ADJUST  INDEBTEDNESS.  §  242 

propriations  for  continuing  the  investigation  of  Indian  claims  were 
made  in  188G,  1887,  1888,  1889,  1890  and  1891.15  Pursuant  to  these  appro- 
priation acts  the  Secretary  of  the  Interior  had  examined  and  allowed 
numerous  claims,  and  a  greater  number  were  pending  when  the  above  act 
was  passed.  By  this  act  jurisdiction  was  for  the  first  time  conferred  upon 
a  court  to  adjudicate  upon  Indian  claims  which  theretofore  had  been  ex- 
clusively before  Congress. i  By  its  terms,  however,  the  claim  must  have 
been  one  arising  prior  to  the  passage  of  the  act,  and  must  have  been  pre- 
sented within  three  years  after  its  passage.  The  act  also  contained  various 
provisions  as  to  procedure.  In  view  of  the  fact  that  the  act  of  1891  is 
limited  and  temporary  in  character  these  further  provisions  are  omitted. 
The  claimant  must  be  a  "citizen  of  the  Lnited  States."2  This  term  is  used 
in  its  broad  sense,  however,  and  includes  a  corporation  organized  under 
State  laws. 3  But  the  claimant  must  be  such  citizen  at  the  time  the  depre- 
dation was  committed,^  and  his  subsequent  naturalization  cannot  give 
the  court  jurisdiction. 5  It  is  necessary  also  that  the  depredation  be  com- 
mitted within  the  United  States,  and  destruction  of  property  of  a  United 
States  citizen  in  Mexico  cannot  give  the  Court  of  Claims  jurisdiction. 6  Since 
the  property  must  be  "taken  or  destroyed"  mere  consequential  damages 
resulting  from  the  taking  of  other  property  cannot  be  considered. 7  The 
Indians  must  belong  to  a  band  or  tribe  which  is  in  amity  with  the  United 
States  in  order  that  a  right  of  action  will  lie,  hence  where  they  them- 
selves constitute  a  hostile  tribe,  there  can  be  no  recovery  for  depredations :  s 
and  the  fact  that  the  hostilities  were  can-ied  on  for  a  special  purpose  is 
immaterial.9 

§  242.  Jurisdiction  to  adjust  indebtedness  to  United  States,  al- 
leged and  unsettled,  on  behalf  of  debtor  or  his 
bondsmen. 

Whenever  any  person  shall  present  his  petition  to  the  Court  of 
•Claims  alleging  that  he  is  or  has  been  indebted  to  the  United  States 
as  an  officer  or  agent  thereof,  or  by  virtue  of  any  contract  therewith, 
•or  that  he  is  the  guarantor,  or  surety,  or  personal  representative  of 

15 Act    Mav    15,    1886,    c.   333,  24  sjohnson  v.  United  Stat^^s.  160  U. 

Stat.  44:   act  March  2,   1887,  c.  320,  S.  546,  40  L.  ed.  530,  16  Sup.  Ct.  Rep. 

■24  Stat.  464;  act  June  29.  1888.  c.  503.  377. 

25  Stat.   234;   act  March   2.   1889,  c.  eCorralitos   v.   United   States.    178 

412.  25  Stat.  998:  act  Aug.  19,  1890,  U.  S.  280.  44  L.  ed.  10G9.  20  Sup.  Ct. 

c.  807,   26   Stat.   356;    act   March    3,  Rep.  941. 

1891,    c.    4.'>3.    26    Stat.    1009.    U.    S.  vprice  v.  United  St-at<^s.  174  U,  S. 

•Comp.  Stat.   1901,  p.  759.  ,377,  43  L.  ed.  1013,  19  Sup.  Ct.  Rep. 

iCorralitos   Co.   v.   United   States.  765.     See  also  lirice  v.  Inited  States, 

178  U.  S.  280.  44  L.  ed.  1072,  20  Sup.  ,32  Ct.  CI.  23. 

•Ct.  Rep.  941.  sMontoya    v.    United    States,    180 

2Johnsons   Case,  29   Ct.   CI.   1.  U.  S.  261,  45  L.  ed.  521.  21  Sup.  Ct. 

^United    States    v.    North'ivestern,  Rep.  358. 

•etc.  Co.  164  U.  S.  686,  41  L.  ed.  599,  sLeighton    v     Unitod    States,    161 

17  Sup.  Ct.  Rep.  206.  U.  S.  291,  40  L.  ed.  704.  16  Sup.  Ct. 

*Valks,  Case,  28  Ct.  CI.  241.  Rep.  495. 

413 


§  243  COUKT  OF   CLAIMS.  [Code   Ked. 

any  officer,  or  agent,  or  contractor  so  indebted,  or  that  he,  or  the 
person  for  Avhom  he  is  such  surety,  guarantor,  or  personal  represen- 
tative has  held  any  office  or  agency  under  the  United  States,  or  en- 
tered into  any  contract  therewith,  under  which  it  may  be  or  has 
been  claimed  that  an  indebtedness  to  the  United  States  has  arisen 
and  exists,  and  that  he  or  the  person  he  represents  has  applied  to  the 
proper  department  of  the  government  requesting  that  the  account 
of  such  office,  agency,  or  indebtedness  may  be  adjusted  and  settled, 
and  that  three  years  have  elapsed  from  the  date  of  such  application 
and  said  account  still  remains  unsettled  and  unadjusted,  and  that 
no  suit  upon  the  same  has  been  brought  by  the  United  States,  said 
court  shall,  due  notice  first  being  given  to  the  head  of  said  depart- 
ment and  to  the  iVttorney  General  of  the  United  States,  proceed  tO' 
hear  the  parties  and  to  ascertain  the  amount,  if  any,  due  the  United 
States  on  said  account. 

The  Attorney  General  shall  represent  the  United  States  at  the- 
hearing  of  said  cause.  The  court  may  postpone  the  same  from  time 
to  time  whenever  justice  shall  require.  The  judgment  of  said  court 
or  of  the  Supreme  Court  of  the  United  States,  to  which  an  appeal 
shall  lie,  as  in  other  cases,  as  to  the  amount  due,  shall  be  binding 
and  conclusive  upon  the  parties.  The  payment  of  such  amount  so 
found  due  by  the  court  shall  discharge  such  obligation.  An  action 
shall  accrue  to  the  United  States  against  such  principal,  or  surety, 
or  representative  to  recover  the  amount  so  foimd  due,  which  may  be 
brought  at  any  time  within  three  years  after  the  final  judgment  of 
said  court.  Unless  suit  shall  be  brought  within  said  time,  such 
claim  and  the  claim  on  the  orignal  indebtedness  shall  be  forever 
barred. 

§  3,  act  Mar.  3,  1887,  c.  359,  24  Stat.  505,  U.  S.  Comp.  Stat.  1901.  p.  7.')4. 

While  a  jiulgnient  cannot  be  rendered  against  the  government  under 
this  provision,  the  court  may  determine  that  nothing  is  due  either  party,  n 

§  243.     Jurisdiction  over  particular  claims  or  classes  of  claims. 

Congress  has  from  time  to  time  passed  laws  conferring  jurisdic- 
tion over  particular  claims  or  classes  of  claims  upon  the  Court  of 
Claims.  Thus  an  act  of  1885^  ^  authorized  presentation  of  Frencli 
spoliation  claims  to  that  tribunal  within  two  years  thereafter,  and 

iiGerding  v.  United  States,  28  Ct.  is  Act  Jan.  20,  1885.  c.  25,  2.-? 
CI.  531.  Stat.  283;  act  March  3,  1899,  c.  426. 

30  Stat.  1167. 
414 


Procedure]  CLAIMS  NOT  COGNIZABLE.  f  245 

a  large  number  of  acts  have  been  passed  conferring  jurisdiction  to 
decide  or  investigate  claims  by  Indians  or  Indian  tribes.  These 
statutes  are  special  and  temporary  in  character  and  it  would  serve- 
no  useful  purpose  to  include  them  herein.  An  examination  of  late 
volu,mes  of  the  statutes  at  large  will  show  such  as  are  still  opera- 
tive.i^ 

Author's  section. 

§  244.  Jurisdiction  over  suits  by  aided  railroads  for  transporta- 
tion furnished. 
Any  such  company  [i.  e.,  railroad  company  to  which  United 
States  bonds  have  been  issued,  the  interest  on  which  has  not  been 
paid]  may  bring  suit  in  the  Court  of  Claims  to  recover  the  price  of 
such  freight  and  transportation,  [i.  e.,  which  has  been  withheld  to 
the  amount  of  interest  due  on  bonds,  and  five  percentum  of  net 
earnings  due  United  States]  and  in  such  suit  the  riglit  of  such  com- 
pany to  recover  the  same  upon  the  law  and  the  facts  of  the  case 
shall  be  determined,  and  also  the  rights  of  the  United  States  upon 
the  merits  of  all  the  points  presented  by  it  in  answer  thereto  by 
them;  and  either  party  to  such  suit  may  appeal  to  the  Supreme 
Court:  and  both  said  courts  shall  give  such  cause  or  causes  prece- 
dence of  all  other  business. 

R.  S.  §  5261,  U.  S.  Comp.  Stat.  1901,  p.  3576. 

This  section  was  originally  enacted  in  1873.16  Under  it  the  right  of 
the  railroad  to  sue,  accrues  when  the  money  is  improperly  withheld.i" 
Appeals  under  this  section  differ  in  no  way  from  ordinary  appeals  from  th& 
Court  of  Claims,  and  it  is  proper  for  the  Supreme  Court  to  require  the 
findings  of  fact  and  the  supporting  evidence  to  be  sent  up.is 

§  245.     Claims  not  cognizable — war  claims. 

The  jurisdiction  of  said  court  shall  not  extend  to  or  include  any  , 
claim  against  the  United  States  growing  out  of  the  destruction  or 

i^As  to  repayment  of  Porto  Rico  of  registers  and  receivers  of  land  of- 

duties.  see  act  April  20.  1902.  c.  640.  fice      for      commissions     on      Indian 

32  Stat.   176.     As  to  claims  of  par-  lands  referred,  see  act  IMarch  3,  1903,. 

ticular  individuals   referred,   see  act  c.  994,  32  Stat.   1010.     See  generally 

May  27.    1902,  c.   887.   32   Stat.   243.  U.    S.   Comp.    Stat.    1901.   p.    732,   et 

Indian  land  controversy  referred  for  seq.     U.  S.  Comp.  Stat.  1905,  p.  165, 

adjustment,  see  act  July  1.   1902.  c.  et  seq. 

1362.    32    Stat.    649.      Indian    allot-        leAct   March    3,    1873.    c.    226.    17 

ments  adjusted,  see  act  July  1.  1902.  Stat.  508. 

c.    1375,  '  .32     Stat.     ;i8.     "Cherokee        i 'Central    Pac.    R.    Co.    v.    United 

claims  referred,  see  act  July  1.  1902.  States,  24  Ct.  CI.  145. 
c.  1375.  32  Stat.  726.     Claims  for  re-         isUnion    Pac.    R.    Co.    v.     Unit^l 

fund  of  duties  referred,  see  act  Jan.  States,  116  U.  S.  157,  29  L.  ed.  586, 

9,  1903,  c.  61,  32  Stat.  764.     Claims  6  Sup.  Ct.  Rep.  325. 

415 


§   24G  COURT  OF   CLAIMS.  [Code  Fed. 

damage  to  property  by  the  army  or  navy  during  the  war  for  the  sup- 
pression of  the  rebellion,  or  for  the  use  and  occupation  of  real  es- 
tate by  any  part  of  the  military  or  naval  forces  of  the  United 
States  in  the  operations  of  said  forces  during  the  said  war  at  the 
seat  of  war ;  nor  shall  the  said  court  have  jurisdiction  of  any  claim 
against  the  United  States  which  is  now  barred  by  virtue  of  the  pro- 
visions of  any  law  of  the  United  States. 

§  3,  act  Mar.  3,  1883,  c.  116,  22  Stat.  485,  U.  S.  Comp.  Stat.  1«01,  p.  748. 
A  similar  provision  as  to  war  claims  will  be  found  in  a  previous  sectioa.i 

§  246.  —  no  jurisdiction  over  claims  pending  in  other  courts. 

No  person  shall  file  or  prosecute  in  the  Court  of  Claims,  or  in 
the  Supreme  Court  on  appeal  therefrom,  any  claim  for  or  in  re- 
spect to  which  he  or  any  assignee  of  his  has  pending  in  any  other 
court  any  suit  or  process  against  any  person  who,  at  the  time  when 
the  cause  of  action  alleged  in  such  suit  or  process  arose,  was,  in 
respect  thereto,  acting  or  professing  to  act,  mediately  or  imme- 
diately, under  the  authority  of  the  United  States. 
R.  S.  §  1067,  U.  S.  Comp.  Stat.  1001,  p.  739. 
This  provision  was  first  enacted  in  1868.3 

^  247.  — nor  over  claims  growing  out  of  treaties. 

The  jurisdiction  of  the  said  court  shall  not  extend  to  any  claim 
against  the  government  not  pending  therein  on  December  one, 
eighteen  hundred  and  sixty-two,  growing  out  of  or  dependent  on 
any  treaty  stipulation  entered  into  with  foreign  nations  or  with 
the  Indian  tribes. 

R.  S.  §  1066,  U.  S.  Comp.  Stat.  1901,  p.  739. 

This  section  was  originally  enacted  in  1863.5  It  excludes  claims  under 
treaty  stipulations  from  the  general  jurisdiction  of  the  Court  of  Claims. 
If  such  jurisdiction  is  given  by  a  special  act  the  authority  of  the  court 
to  hear  and  determine  is  limited  by  that  special  act.e  In  order  for  a  claim 
to  grow  out  of  or  be  dependent  on  a  treaty  stipulation,  the  right  which 
is  tlie  foundation  of  the  claim  must  have  its  origin  in  such  stipulation.^ 

lAnte,  §  229.  S.  51,  32  L.  ed.  62.  8  Sup.  Ct.  Rep. 

sAct  June  25,  1868,  c.  71,  15  Stat.  1000.     See,   however.  Great   Western 

77.  Ins.   Co.  V.  United  States,  112  U.  S. 

5Act  March  3.  1863.  c.  92,  12  Stat.  193,   28  L.   ed.   687,  5   Sup.   Ct.  Rep. 

767.  99;   Ailing  v.   I'nited  States,   114  U. 

6 Ex   parte   Atoclia,    17   Wall.   444,  S.  562.  29  L.  ed.  272,  5  Sup.  Ct.  Rep. 

21  L.  ed.  698.  1080. 

7 United    states    v.    Weld,    127    U. 

416 


CHAPTER  9. 

JUDICIAL  CIRCUITS  AND  JUDICIAL  DISTRICTS, 

§  255.     The  nine  circuits  and  the  districts  comprising  them. 

S  256.     Judicial  districts  and  divisions  in  general. 

§  257.     —Alabama,  three   districts,  one   having  two   and  one  having  fou' 

divisions. 
§  258.     — Arkansas,  two  districts,  each  of  three  divisions. 
§  259.     — California,  two  districts,  one  having  two  divisions. 
§  260.     — Colorado,  one  district. 

§  261.     — Connecticut  and  Delaware,  one  district  each. 
§  262.    —Florida,  two  districts. 

§  263.     — Georgia,  two  districts,  one  of  four  and  one  of  five  divisions. 
§  264.     — Idaho,  one  district  of  three  divisions. 
§  265.    — Illinois,  three  districts,  two  having  two  divisions  each. 
g  266.    — Indiana,  one  district. 

§  267.    — Iowa,  two  districts,  each  of  four  divisions. 
§  268.    — Kansas,   one   district   of    three   divisions. 
§  269.     ■ — Kentucky,  two  districts  and  Owensboro  division. 
§  270.    — Louisiana,  two  districts,  one  of  two  and  other  of  five  divisions. 
§  271.    — Maine,  Maryland  and  Massachusetts,  one  district   each. 
§  272.    — Michigan,  two  districts,  each  of  two  divisions. 
§  273.    — Minnesota,  one  district  of  six  divisions. 
§  274.     — Mississippi,  two  districts  of  two  and  four  divisions. 

S  275.     — Missouri,  two  districts  of  three  and  five  divisions. 

§  276.    — Montana,  Nebraska,   Nevada,  New  Hampshire  and  New  Jersey, 
each  one  district. 

§  277.    — New  York,  four  districts. 

§  278.    — North  Carolina,  two  districts. 

§  279.    — North  Dakota,  one  district  of  five  divisions. 

§  280.    — Ohio,  two  districts  of  two  divisions  each. 

§  281.    — Oklahoma,  two  districts. 

§  282.     — Oregon,  one  district. 

§  283.     — Pennsylvania,  three  districts. 

§  284.    — Rhode  Island,  one  district. 

§  285.    — South  CaroliTia,  one  district  of  two  divisions. 

§  286.     — South  Dakota,  one  district  of  four  divisions. 

S  287.     — Tennessee,  three  districts,  one  having  three  and  others  two  divi- 
sions. 

§  288.     —Texas,   as    divided    into    four   districts. 

S  289.     — Texas  districts  as  subdivided  into  divisions. 

•i  290.     — Utah,  one  district  of  two  divisions. 
Fed.  Proc. — 27.  417 


S   2oo  .ILiilClAL  i  lUCLlTS  AND  JUDICIAL  DISTRICTS.      [Code    Fed. 

§  291.  — Vermont,  one  district. 

§  292.  — Virginia,  two  districts. 

§  293.  — Washington,   two   districts. 

§  294.  — West    Virginia,    two   districts. 

§  295.  — Wisconsin,  two  districts. 

S  29G.  — Wyoming,   and    Yellowstone   National    Park,   one    district. 


§  255.     The   nine   circuits   and   the    districts    comprising   them. 

The  judicial  districts  of  the  United  States  are  divided  into  nine 
>irciiits,  as  follows: 

First.  The  first  circuit  includes  the  districts  of  Ehode  Island, 
^[assaclmsetts,  New  Hampshire,  and  Maine. 

.Second.  The  second  circuit  includes  the  districts  of  Vermont, 
Connecticut,  and  New  York. 

Third.  The  third  circuit  includes  the  districts  of  Penns^'lvania, 
Xew  Jersey,  and  Delaware. 

Fourth.  The  fourth  circuit  includes  the  districts  of  Maryland, 
\"irginia,  West  Virginia,  North  Carolina,  and  South  Carolina. 

Fifth.  The  fifth  circuit  includes  the  districts  of  Georgia,  Florida, 
Alabama,  Mississippi,  Louisiana,  and  Texas. 

Sixth.  The  sixth  circuit  includes  the  districts  of  Ohio,  Michigan, 
Kentucky,  and  Tennessee. 

Seventh.  The  seventh  circuit  includes  the  districts  of  Indiana, 
Illinois,  and  Wisconsin. 

Eighth.  The  eighth  circuit  includes  the  districts  of  Colorado, 
Nebraska,  Minnesota,  Iowa,  Missouri,  Kansas,  Arkansas,  North 
Dakota,  South  Dakota.  Utah,  AVyoming  and  Oklalioma. 

Ninth.  The  ninth  circuit  includes  the   districts   of   California, 
Oregon,  Nevada,  Washington,  Idaho,  and  Montana. 
^iUthor's  section. 

For  appellate  purposes  Arizona,  Hawaii  and  Alaska  have  been  assigned 
to  the  ninth  circuit,  and  New  Mexico,  to  the  eighth,  i  Porto  Rico  and  the 
Philippines  have  not  as  yet  been  assigned  to  any  circuit. 

§  256.     Judicial  districts  and  divisions  in  general. 

Upon  the  organization  of  the  Federal  judiciary  in  1789"  Con- 
gress divided  the  United  States  into  judicial  districts  for  Federal 
jurisdictional  purposes,  and  has  since  from  time  to  time  created 

iSee  ante.  §§  80.  81.  Stat.  73,  U.  S.  Comp.  Stat.  1901,  p. 

3§    1,   act   Sept.   24,   1789,  c.   20.   1    316. 

418 


rroeednre]  JUDICIAL  DISTRICTS  AND  DIVISIONS  IX  GENERAL.  §   256 

new  districts  and  redefined  the  old.  The  policy  has  been  to  make 
the  boundaries  of  one  or  more  of  these  judicial  districts  coterminous 
with  a  State,  but  never  to  include  more  than  a  single  State  within 
a  single  district.  Hence  while  a  State  may  be  divided  into  two 
01'  more  complete  districts  it  never  comprises  less  than  one  entire 
district.  And  while  a  district  does  not  always  comprise  an  entire 
State,  it  never  comprises  land  situate  in  two  States.  Upon  the  ad- 
mission of  new  States  to  the  union,  Congress  has  provided  Federal 
judicial  districts  therein;  and  has  provided  such  division  and  re- 
vision, or  alteration  of  the  boundaries  of  the  various  districts  created 
as  increase  of  litigation  and  the  growth  of  the  country  have  seemed 
to  demand.  During  the  past  twenty-five  years  Congress  has  fre- 
quently adopted  the  plan  of  dividing  districts  having  an  extensive 
geographical  area,  into  divisions,  sometimes  merely  for  district 
court  purposes,  but  often  for  both  circuit  and  district  court.  The 
policy  has  generally  been  to  designate  some  place  for  holding  court 
in  each  such  division,  to  make  process  issued  against  parties  in  the 
counties  embraced  therein  returnable  there,  and  the  cause  there 
triable,  to  make  crimes  W'ithin  the  said  counties  cognizable  there. 
to  make  causes  removed  from  State  courts  tlierein,  triable  there, 
and  to  summon  jurors  for  service  at  these  designated  places  of 
trial,  only  from  counties  within  such  division.  Congress  has,  in 
general,  either  required,  or  in  the  discretion  of  the  court,  permitted 
the  establishment  of  a  deputy  clerk's  office  in  each  such  division. 
The  lack  of  uniformity  in  the  legislation  upon  this  subject  renders 
it  necessary  for  the  praxititioner  to  ascertain  the  provisions  govern- 
ing proceedings  in  any  particular  division  of  a  district. 
Author's  section. 

Where  a  State  boundary  is  elianged  by  the  assent  of  Congress  the 
judicial  district  ipso  facto  expands  or  contracts  accordingly. 5  But  the 
change  of  a  State  boundarye  or  the  organization  of  new  counties^  by 
State  legislation  cannot  affect  such  district.  Attaching  territory  to  another 
State  for  judicial  purposes  does  not  constitute  such  territory  part  of  the 
State,  s 


sin    re  Dovoe   Mfg.    Co.    108   U.    S.         "Hvde    v.    Victoria    Land    Co.    liM 
401.  27    L.  ed.   7li4.   2   Sup.    Ct.   Rep.    Fed.  971. 

894.  8 United  States  v.  Pridgeon,  153  U. 

S.  48.  38  L,  ed.  631,  14  Sup.  Ct.  Rep. 

SHall  V.  Dcvoe  :Mfg.  Co.  14  Fed.  191.    746. 

419 


§  257  JUDICIAL  CIRCUITS  AND  JUDICIAL  DISTRICTS.    [Code   Fed. 

§  257.  —  Alabama,  three  districts,  one  having  two  and  one  hav- 
ing four  divisions. 

The  State  of  Alabama  is  divided  into  three  districts,  the  south- 
ern, middle  and  northern.  The  southern  district,  as  constituted  at 
the  time  of  the  adoption  of  the  Revised  Statutes  and  modified  latei- 
by  the  act  of  1884,'''  comprised  the  counties  of  Mobile,  Washington, 
Baldwin,  Clarke,  Marengo,  Wilcox,  Monroe,  and  Conecuh,  as  they 
then  existed.  On  March  3,  1905,  the  counties  of  Dallas,  Hale. 
Marengo,  Perry,  and  Wilcox,  were  constituted  the  northern  division 
of  the  southern  district,  and  all  the  other  counties  of  the  district 
were  constituted  the  southern  division,  with  Mobile  as  the  place  of 
holding  court.^'  The  middle  district  is  composed  of  the  counties 
of  Montgomery,  Autauga,  Coosa,  Chambers,  Randolph,  Macon, 
Russell,  Barbour,  Pike,  Henry,  Dale,  Coffee,  Covington,  Lowndes, 
Perry,  Butler,  and  Tallapoosa.^-  The  northern  district  includes 
the  remaining  counties  of  the  State.  In  1884' ^  the  counties  of 
iSumter,  Greene,  Pickens,  and  Hale  were  detached  from  the  south- 
ern district,  and  Tuscaloosa,  Bibb,  Shelby,  and  Talladega  were  de- 
tached from  the  middle  district,  and  attached  to  the  northern  dis- 
trict. The  northern  district  is  divided  into  four  divisions.  The 
.southern  division  thereof  includes  the  counties  of  Hale,  Lamar, 
Fayette,  Walker,  Jefferson,  Blount,  Shelby,  Saint  Clair,  and  De 
Kalb,  as  they  existed  May,  '3,  1884,  when  the  district  was  reorgan- 
ized and  subdivided.  The  western  division  was  created  March  3, 
1905,'^  by  detaching  the  counties  of  Tuscaloosa,  Bibb,  Greene,  Sum- 
ter, and  Pickens,  as  they  then  existed,  with  Tuscaloosa  as  the  place 
of  holding  court.  The  eastern  division  includes  the  counties  of 
i'^towah,  Calhoun,  Cleburne,  Clay.  Talladega,  and  Cherokee,  as  they 
existed  February  16,  1903,  when  the  division  was  created,  with  An- 
uiston  as  the  place  for  holding  court.'''  The  renuiinng  counties  of 
the  northern  district  constitute  the  nortliern  division.'*^ 
Author's  section. 

lOR.  S.  §  532.  Act  May,  2.  1884.  c.         i4Act   Mar.   .3.   1905,   c.    1410.    S    S. 

:58.   23   Stat.    18.   U.    S.   Coinp.   Stat.  33  Stat.  988.  U.  S.  Comr).  Stat.  1905. 

1901.  p.  317.  318.  p.  79. 

iiAct  Mar.  3.  1905.  c.  1419,  .33  Stat.         isAct    Feb.     Iti.     1903,    c.  554.    32 

987,  U.  S.  Coiiip.  Stat.  1905,  p.  77.  Stat.    832,   U.    S.   Comp.    Stat.    1905, 

12 See   R.    S.    §    532,   and    act    May  p.  76. 
2.  1884,  cited  supra.  islbid. 

i3Act  May  2,  1884,  c.  38.  23  Stat.  18. 

420 


IToccdure]  ARKANSAS— CALIFORNIA.  §   259 

§  258.  —  Arkansas,  two  districts  of  three  divisions  each. 

The  State  of  Arkansas  is  divided  into  two  districts,  whicli  are 
called  the  eastern  and  western  districts  of  Arkansas.  The  western 
district  includes  the  counties  of  Benton.  Washington,  Craw^ford, 
Sebastian,  Scott,  Polk  Sender,  Little  Eiver,  Howard,  Yell,  Logan. 
Franklin.  Jonhson,  Madison,  jSTewton,  Carroll,  Boone,  Pike,  Hemp- 
stead, Miller,  La  Fayette,  Xevada,  Columbia,  Union,  Ouachita,  and 
Calhoun.  The  eastern  district  includes  the  residue  of  said  State. 
The  eastern  district  is  divided  into  three  divisions,  known  as  the 
western,  eastern,  and  northern  divisions  of  the  eastern  district  of 
Arkansas.  The  eastern  division  consists  of  the  following  counties, 
to  wit:  Mississippi,  Crittenden,  Lee,  Phillips,  Clay.  Craighead, 
Poinsett,  Greene,  Cross,  Saint  Francis,  and  ]\Ionroe.  as  constituted 
February  20,  1897,  wdien  the  divisions  were  created,  courts  to 
be  held  at  the  city  of  Helena.  The  counties  of  Independence,  Cle- 
burne, Stone,  Izard,  Baxter,  Searcy,  Marion,  Sharp,  Fulton,  Eaii- 
dolph,  Lawrence  and  Jackson  as  they  then  existed  constitute  the 
northern  division,  the  courts  to  be  held  at  the  city  of  Batesville. 
The  remaining  counties  of  the  eastern  district  of  the  State  con- 
stitute the  western  division,  the  courts  to  be  held  at  the  city  of 
Little  Rock.  The  western  district  now  contains  three  divisions,  the 
Texarkana,  Fort  Smith,  and  Harrison.  The  Harrison  division  em- 
braces the  counties  of  Baxter,  Boone,  Carroll,  Madison,  ]\Iarioii. 
Xewton,  and  Searcy,  as  they  existed  Mai'ch  18,  190'?,  when  the  divi- 
sion was  created. 1  The  counties  of  Sevier,  Howard,  Pike,  Little 
River.  Hempstead,  Miller,  La  Fayette,  Columbia.  Xevada,  Ouachita. 
Calhoun,  and  Union,  as  they  existed  February  20,  189 T,  when  tlie 
division  was  created,  constitute  the  Texarkana  division,  the  courts 
to  be  held  at  Texarkana.  The  remaining  counties  of  the  western 
district  of  the  State  constitute  the  Fort  Smith  division,  the  courts 
to  be  held  at  the  city  of  Fort  Smith.^ 
Author's  section. 

§  259.  —  California,  two  districts,  one  having-  two  divisions. 

California  is  divided  into  two  districts.  All  that  portion  of  ilu^ 
State  of  California  comprised  in  the  counties  of  San  Diego,  San 
Bernardino,  Los  Angeles,  Ventura,  Santa  Barbara.  San  Luis 
Obispo,  Fresno,  Tulare,  and  Kern,  upon  August  5,  1886,  and  that 

lAct  Mar.  18.  1902,  c.  222.  .32  Stat.  2Act  Feb.  20,  1S!»7.  c.  269.  29  Stat. 
72.  590,  U.   S.  Comp.   Stat.   1901,  p.  321. 

421 


§   260  JUDICIAL  CIRCUITS  AND  JUDICIAL  DISTRICTS.      [Code  Fed. 

])ortion  comprised  iu  Inyo.  Mariposa,  aiid  Merced  counties,  on 
May  29.  1900,  constitute  tlie  southern  district  of  California.  The 
northern  district  of  California  consists  of  all  tlie  remaining  coun- 
ties in  the  State.  The  southern  district  is  divided  into  a  northern 
division  consisting  of  Inyo,  Mariposa,  Tulare,  Merced,  Madera, 
Presno.  Kings,  and  Kern  counties,  as  constituted  on  May  29,  1900. 
and  a  southern  division,  consisting  of  Los  Angeles,  Orange,  River- 
side, San  Barnardino,  San  Diego,  San  Luis  Obispo,  Santa  Bar- 
bara, and  Yentura  counties,  as  constituted  on  Max  29,  1900.  Tlie 
State  was  divided  into  two  districts  by  act  of  1886-^  and  the  en- 
largement and  division  of  the  southern  district  was  by  act  of  1900.^ 
Author's  section. 

s;  260.  —  Colorado,  one  district. 

The  State  of  Colorado  constitutes  one  judicial  district,  called  the 
<listrict  of  Colorado.^ 
Author's  section. 

Other  enactments  provide  for  terms  of  court, 9  the  summoning  and  at- 
tendance of  jurors,! 0  and  district  court  recordsn  in  Colorado. 

^5  261.  — Connecticut  and  Delaware,  one  district  each. 

The  States  of  Connecticut    and    Delaware  each  constitute    one 
judicial  district. 
Author's  section. 

Terms  of  court  therein  are  elsewhere  stated.  15 

§  262.  — Florida,  two  districts. 

The  State  of  Florida  is  divided  into  two  districts,  called  the 
northern  and  southern  districts  of  Florida.  The  southern  judicial 
district  embraces  the  counties  of  Hernando,  Hillsborough,  Polk, 
Manatee,  and  Monroe,  as  they  existed  February  3,  1879,  and  the 
counties  of  Alachua,  Baker,  Bradford,  Brevard,  Clay,  Columbia. 
Dade,  Duval,  Hamilton,  Lake,  Madison,  Marion,  Nassau,  Orange, 
Osceola,  Putnam,  St.  John,  Sumpter,  Suwannee,  and  Volusia,  as 

5Act  Aug.  5.  1886.  e.  928,  24  Stat.        sPost,  §  317. 
309.  U.  S.  Comp.  Stat.   1901,  n.  324.        loPost,   §§   1722,   1724,   1725. 

6 Act  Mav  29.  1900,  c.  594.  31  Stat.        uPo.st,  S   381. 
219,  U.  S.  Comp.  fttat.  1901,  p.  326.  isPost,  §  3ia 

8See  act  June  26,   1876,  c.  147,  19 
Stat.  61. 

422 


I 


Procedure]  GEORGIA.  §  263 

tliev  existed  July  23,  189-i.    All  the  territory  within  the  remaining 
counties  constitutes  the  northern  judicial  district.^ '^ 
Author's  section. 

§  263.  —  Georgia,  two  districts,  one  of  four  and  one  of  five 
divisions. 

The  State  of  Georgia  is  divided  into  two  districts,  which  are 
known  as  the  northern  and  southern  districts  of  Georgia.  The 
northern  district  contains  four  divisions.  The  northern  division 
includes  the  counties  of  Campbell,  Carroll,^ ^  Clayton,  Cobb,  Coweta, 
Cherokee,  DeKalb,  Douglass,  Dawson,  Fannin,  Fayette.  Fulton, 
Forsyth,  Gilmer,  Gwinnett.  Hall,  Henry,  Lumpkin.  ]\Iilton,  Xew- 
ton,  Pickens,  Rockdale,  Spalding,  Towns,  and  Union.  Tlie  east- 
ern division  was  created  February  28,  1901,  and  includes  the  coun- 
ties of  Banks,  Clarke,  Elbert,  Franklin,  Greene,  Habersham,  Hart, 
Jackson,  Morgan,  Madison,  Oglethorpe,  Oconee,  Eabun,  Walton, 
and  White,  as  then  constituted.  The  western  division  was  created 
March  3,  1891,  and  includes  the  counties  of  Chattahoochee,  Clay, 
Early,  Harris,  Heard,  Meriwether,  Marion,  Muscogee,  Quitman, 
Randolph,  Schley,  Stewart,  Talbot,  Taylor,  Terrell,  Troup,  and 
AVebster  as  then  constituted.  The  northwestern  division  of  the 
northern  district  was  created  April  12,  1900,  and  includes  the 
counties  of  Bartow,  Chattooga,  Catoosa,  Dade,  Floyd,  Gordon, 
Haralson,  Murray,  Paulding,  Polk,  Walker,  and  Whitfield,  as  then 
constituted.  The  southern  district  of  Georgia  is  divided  into  five 
divisions.  The  eastern  division  was  created  on  January  29,  1880, 
and  embraces  the  counties  of  Appling,  Bulloch,  Bryan,  Camden, 
Chatham,  Emanuel,  Effingham,  Glynn,  Liberty,  Montgomery.  Mc- 
intosh, Screven,  TatnaJl,  and  Wayne,  as  then  constituted.  The 
southwestern  division  is  composed  of  the  counties  of  Berrien, 
Brooks,  Charlton.  Clinch,  Coffee,  Decatur,  Echols,  Irwin,  Lowndes, 
Thomas,  and  Ware,  as  they  existed  June  30,  1902,  when  the  divi- 
sion was  created  ,20   the  county  of  Pierce  being  added  in  1901.^ 

The  Albany  division  Avas  created  by  act  of  March  3,  1905,  as  cor- 

iTSee  R.  S.  §  534;  Act  Feb.  3.  1879.  rett   v.  United  States.  169  V.  S.  "i-iS. 

0.  43.  20  Stat.  280:  Act  July  23.  1894.  42  L.  ed.   726.   18  Sup.  Ct.   Rep.  .327, 

e.    149.    28    Stat.    117,    U.    S.    Coinp.  where     "district"     is     construed     as 

Stat.  1901.  p.  .331.  332.  "division." 

"See  act.   Feb.  26.   1902.  c.   .33.  32        20 Act    June    .30.    1902.    c.    1338.    .^2 

Stat.   42.     The    act     transfers     it    to  Stat.  o-JO.  U.  S.  Comp.  Stat.  1!M>3.  p.  84. 
the  northern  district  but  peresuniably        lAct  Apr.  7,  1904.  c.  941.  33  Stat, 

meiins    nortlieni    division.      See   Bir-  KJl.   ['.  S.  Conip.  Stat.   I;i()').  p.  87. 

423 


i   204  JUDICIAL  CIRCUITS  AND  JUDICIAL  DISTRICTS.      [Code   Fpd. 

rected  June  28.  1906,  and  comprises  the  counties  of  Tift,  Turner. 
Crisp,  Colquitt.  Miller,  Baker,  Calhoun,  Dougherty,  Lee,  Mitchel!, 
and  Worth,  as  tlien  constituted,  with  All)any  as  the  place  of  hold- 
ing eourt.2  The  northeastern  division  was  created  February  1"). 
1889,  and  is  composed  of  the  counties  of  Warren,  Glascock,  Mc- 
Duffie,  Columbia,  Eichmond,  Burke,  Jefferson,  Johnson,  Washing- 
ton, Lincoln,  Wilkes,  and  Taliaferro,  as  then  constituted.  The 
western  division  of  the  southern  district  was  created  January  29, 
1880,  and  consists  of  the  counties  of  Bibb,  Monroe,  Jones,  Twiggs, 
Houston,  Crawford,  Baldwin,  Wilkenson,  Laurens,  Pulaski,  Dooly. 
Macon,  Upson,  Pike,  Butts,  Jasper,  Putnam,  Hancock,  Dodge,  Wil- 
cox, Telfair,  and  Sumter  as  then  constituted. 
Aiithor's  section. 

By  R.  S.  §  535  Georgia  was  divided  into  two  districts  without  any  fur 
ther  provision  for  divisions  therein.  An  act  of  18803  divided  the  soiithcni 
district  into  an  eastern  and  a  western  division;  and  a  northeastern  divi 
sion  was  created  in  1889.^  In  the  northern  district  a  northern  and  a  wcst- 
em  division  were  created  by  act  of  1891,5  a  northwestern  division  by  act 
of  1900,6  and  an  eastern  division  by  act  of  1901.'?  The  error  in  the  act  of 
March  3,  1905,  in  speaking  of  the  new  division  created  thereby  as  tlie 
"south\\»'stern"  when  there  was  an  existing  southwestern  division  was 
sought  to  be  cured  by  act  of  June  28,  1906,  cited  in  the  footnote  by  amend- 
ing so  as  to  call  the  new  division  the  Albany  division.  The  former  coun- 
ties which  are  designated  in  the  act  of  June  28,  1906,  by  the  names  "Tift, 
Turner  and  Crisp,"  and.  attached  to  the  Albany  division  should  of  course 
be  excluded  from  enumeration  among  the  counties  included  in  some  other 
division. 

§  264.  —  Idaho,  one  district  of  three  divisions. 

For  the  purpose  of  holding  terms  of  the  district  court,  Idalio. 
which  constitutes  but  one  district,  is  divided  into  three  divisions, 
known  as  the  northern,  the  central  and  southern  divisions.  The  ter- 
ritory composing  the  counties  of  Idaho,  Kootenai,  Latah,  Nez 
Perces,  and  Shoshone,  including  any  and  all  Indian  reservations 
within  such  territory,  constitute  the  northern  division,  the  court  for 
which  must  be  held  at  the  town  of  Moscow.  The  territory  composiui^- 

2Act  Mar.  3.  1905.  c.  1431.  .33  Stat.        5Act  Mar.  3,  1891,  c.  566,  26  Stal. 

999.  V.  S.  Comp.Stat.  1905.  p.  87.  as  1110. 

amended,  act  June  28,  1906.  e.   .3577,        «Act  Apr.  12,  1900,  c.  185,  31  Stat. 

.34  Stat.  .547.  73. 

3Act  Jan.  29.  1880.  c.  17.  21   Stat.         ^Act  Feb.  28,  1901.  c.  021,  31   St:it. 

62.  818.     See    U.    S.    Comp.    Stat.    1901, 

4 Act  Feb  15,  1889.  c.  168.  25  Stat.  p.  333  et  seq. 
071. 

424 


Procedure]  ILLINOIS.  §  265 

the  counties  of  Ada,  Boise,  Blaine,  Cassia,  Canyon,  Lincoln,  Elmore. 
Owyhee,  and  Washington,  including  any  and  all  Indian  reservations 
within  said  territory,  constitute  the  central  division,  the  court  for 
wliich  must  be  held  at  Boise  City.  The  territory  composing  the 
counties  of  Bingham,  Bannick,  Bear  Lake,  Custer,  Fremont,  Lemhi,, 
and  Oneida,  including  any  and  all  Indian  reservations  within  such 
territory,  constitute  the  southern  division,  the  court  for  which  must 
be  held  at  the  town  of  Pocatello.  Xew  counties  created  remain  part 
of  the  division  out  of  which  it  or  the  larger  portion  thereof  was  cre- 
ated, but  if  part  of  county  is  detached  and  added  to  another  in 
another  division,  it  becomes  part  of  such  latter  division. 
Author's  section. 

The  above  subdivision  of  the  district  was  made  by  act  of  1892  as  modified 
by  act  of  1898.9 

§  265.  —  Illinois,  three  districts,  two  having  two  divisions  each. 
Illinois  was  divided  into  three  districts,  viz.,  the  northern,  south- 
ern and  eastern  by  act  of  March  3,  1905.^ ^  The  northern  district 
is  composed  of  the  counties  of  Lake,  McHenry,  Boone.  Winnebago. 
Stephenson,  Jo  Daviess,  Carroll,  Whiteside,  Lee,  Ogle,  DeKalb,  La- 
salle,  Grundy,  Kendall,  Kane,  Dupage,  Will  and  Cook.  Of  these 
the  western  division  consists  of  the  counties  of  Boone,  Winnebago. 
Stephenson,  Jo  Daviess,  Carroll,  Whiteside,  Lee  and  Ogle  with 
Freeport  as  the  place  of  holding  court,  and  the  eastern  division 
comprises  the  remaining  counties.  The  southern  district  is  com- 
posed of  the  counties  of  Rock  Island,  Henry,  Bu]-ean.  ]\Iercer,  Knox, 
Stark,  Putnam,  Marshall,  Henderson,  Warren,  Peoria,  Woodford, 
Livingston,  McLean,  Tazewell,  Fulton,  McDonongh,  Hancock,  De- 
witt,  Logan,  Mason,  Schuyler,  Adams,  Brown,  Cass,  Menard,  Ma- 
con, Sangamon,  Christian,  IMorgan,  Montgomery,  Pike.  Scott,  Ma- 
coupin, Greene,  Calhoun,  Jersey,  Bond  and  Madison.  Of  these,  tlie 
following  comprise  the  northern  division,  to  wit:  Peoria.  Bureau. 
Stark,  Henry,  Eock  Island,  Mercer.  Henderson,  Warren,  Knox. 
McDonough,  Fulton,  Putnam.  Marsliall,  Woodford,  Tazewell  and 
Livingston  with  Peoria  as  the  place  for  holding  court.  Tlio  re- 
maining counties  of  the  southern   district  constitute  the  southern 

9Act  July  5.  1892,  c.  145,  27  Stat.        nC.  1427.  33  Stat.  993.  U.  S.  Comp. 
72.  as  amended,  act  June  1,  1898,  c.    Stat.  1905,  p.  89  et  seq. 
309.  30  Stat.  423.  U.  S.  Conip.   bait. 
1901,  p.  342. 

425 


§  266  JUDICIAL  CIRCUITS  AND  JUDICIAL  DISTRICTS.      [Code   Fed. 

division.  The  eastern  district  consists  of  the  following  coiuities, 
to  wit:  Kankakee,  Iroquois,  Ford,  Vermilion,  Champaign,  Piatt, 
Moultrie,  Douglas,  Edgar,  Shelby,  Coles,  Clark,  Cumberland,  Effing- 
liam,  Fayette,  Marion,  Clay,  Jasper,  Crawford,  Lawrence,  Richland, 
('linton,  Saint  Clair,  Washington,  Jefferson,  Wayne,  Edwards, 
Wabash,  White,  Hamilton,  Franklin,  Perry,  Eandolpli,  ^lonroe, 
Gallatin,  Saline,  Williamson,  Jackson,  Hardin,  Pope,  Johnson, 
Union,  Alexander,  Pulaski,  and  Massac,  with  Cairo,  Danville  and 
East  St.  Louis  as  the  places  of  holding  court. 
Author's  section. 

§  266.  — Indiana,  one  district. 

Indiana  constitutes  but  one  judicial  district,  although  terms  of 
court  are  held  at  Indianapolis,  Fort  Wayne,  Hammond,  Evansville. 
and  New  Albany. ^^ 
Author's  section. 

§  267.  — Iowa,  two  districts,  each  of  four  divisions. 

The  State  of  Iowa  is  divided  into  two  judicial  districts  called  the 
northern  and  southern.  The  northern  district  is  divided  into  four 
divisions,  viz.,  the  Cedar  Rapids,  the  eaistern,  central  and  western 
divisions.  The  Cedar  Rapids  division  was  created  Feb.  3-i,  1891, 
and  comprises  the  counties  of  Cedar,  Johnston,  Iowa,  Tama,  Grundy, 
Hardin,  Benton,  Linn,  Jones,  as  then  constituted,  (Clinton  being- 
withdrawn  to  the  Davenport  division  in  1906)^^  the  terms  of  court 
for  which  are  held  at  the  city  of  Cedar  Rapids.  The  other  three  di- 
visions were  created  July  20,  1882.  The  counties  of  Jackson. 
Black  Hawk,  Buchanan,  Delaware,  Dubuque,  Clayton,  Fayette,  Bre- 
mer, Floyd,  Chickasaw,  Mitchell,  Howard,  Winneshiek,  and  Alama- 
kee  as  then  constituted,  comprise  the  eastern  division,  the  courts  for 
which  are  held  at  the  city  of  Dubuque.  The  counties  of  Hamilton, 
Webster,  Calhoun,  Pocahontas,  Palo  Alto,  Emmett,  Kossuth,  Hum- 
boldt, Wright,  Hancock,  Winnebago,  Worth,  Cerro  Gordo,  Franklin, 
and  Butler  as  then  constituted,  comprise  the  central  division,  the 
courts  for  which  are  held  as  Fort  Dodge.  The  counties  of  Monona, 
Woodbury,  Plymouth,  Sioux,  Lyon,  Osceola,  O'Brien,  Cherokee, 
Ida,  Sac,  Buena  Vista,  Clay  and  Dickinson  as  then  constituted, 

isPost.  §  323. 

15 Act    June    19.    lOOfi.   c.    3437.    34 
Stat.  304. 

426 


I'l-ocednre]  KANSAS.  §   2GS 

■c-omprise  the  western  division^  the  courts  for  which  are  held  at 
Sioi:x  City.  The  southern  district  contains  five  divisions,  viz., 
the  southern,  eastern,  central,  western  and  Davenport  divisions. 
The  southern  division  of  that  district  was  created  June  1,  1900.  and 
comprises  the  counties  of  Lucas,  Clarke,  Union,  Adair,  Adams, 
Tremont,  Page,  Taylor,  Einggold,  Decatur  and  Wayne,  as  then 
constituted.^^  The  eastern,  central,  and  western  divisions  were  cre- 
ated July  20,  1882.  The  counties  of  Louisa,  Davis,  Wapello,  Jeffer- 
son, Van  Buren,  Henry,  Des  Moines,  and  Lee  as  then  constituted 
and  the  county  of  Appanoose  added  in  1900^"  comprise  the  eastern 
division,  for  which  the  courts  are  held  at  the  city  of  Keokuk.  The 
counties  of  Poweshiek,  Mehaska.  Jasper,  Marshall,  Story,  Boone, 
Greene,  Guthrie,  Dallas,  Polk,  ^Madison,  Warren,  Marion,  and  Mon- 
roe, as  then  constituted,  comprise  the  central  division,  for  which  the 
courts  are  held  at  the  city  of  Des  ]\Ioines.  The  counties  of  Carroll. 
Crawford,  Harrison,  Shelby,  Audubon,  Cass,  Pottawattamie,  Mills, 
and  Montgomery,  as  then  constituted,  comprise  the  western  division, 
in  which  the  courts  are  held  at  the  city  of  Council  Bluffs.  The 
Davenport  division  was  created  April  28,  190-1.  by  taking  the 
counties  of  Scott,  Muscatine,  Washington  and  Keokuk  out  of  the 
eastern  division ;is  Clinton  county  was  added  in  1906.^^ 
Author's  section. 

By  R.  S.  §  53^7,  Iowa  comprised  but  one  judicial  district  divided  into 
four  divisions.  An  act  of  July  20,  1SS2,2  0  divided  the  State  into  two 
districts  of  three  divisions  each.  In  1891  the  Cedar  Rapids  division  was 
created  in  the  northern  district,i  and  in  1900,  the  southern  division  in  the 
siiuthern  district. 2 

§  268.  —  Kansas,  one  district  of  three  divisions. 

The  judicial  district  of  Kansas  is  divided  into  three  divisions 
known  as  the  first,  second  and  third.  The  first  and  second  divisions 
were  created  June  9,  1890.  The  second  division  now  comprises  the 
counties  of  Cowley,  Butler,  Harvey,  McPherson,  Rice,  Ellsworth. 
Barton,    Rush,    ISTess,    Lane,    Scott,    Wichita,    Greely,    Hamilton, 

i«Act  Apr.  21,  190G,  c.  1648.  34  isAct  June  19,  1906.  c.  3437,  34 
Ptat.  127.  Stat.  304. 

I'Act  Apr.  21,  1906,  c.  1648.  34  20C.  312.  22  Stat.  172,  U.  S.  Comp. 
Stat.  127.  Stat.   1901,   p.  349. 

isAct    Apr.    28.    1904.    c.    1800.    33         lAct  Feb.  24.  1891.  c.  282.  26  Stat. 
Stat.    .i46,    U.    S.    Conip.    Stat.    1905,    707.  U.  S.  Comp.  Stat.  1901.  p.  352. 
P.  97.  2Act  June  1,  1900.  c.  601.  31  Stat. 

249,  U.  S.  Comp.  Stat.  1901.  p.  353. 
427 


§   209  JUDICIAL   CIKCUITS  AM)  .ni»l(-IAL  DISTRICTS.      [Code   Ked. 

Koarny,  Finiiv,  Garfield,  Hod<:einaii.  Pawnee,  Stafford,  Keiio, 
Kingman,  Pratt,  Kiowa,  Edwards,  Ford,  Gray,  Haskell,  Grant, 
Stanton,  Morton,  Sedgwick,  Stevens,  Seward,  Meade,  Clark,  Co- 
manche, Harper,  Barber,  and  Sumner,  as  then  constituted,  courts 
to  1)6  held  at  Wichita.  The  third  division  was  created  May,  3,  189-2, 
and  comprises  the  counties  of  Miami,  Linn,  Bourbon,  Crawford, 
Cherokee,  Labette,  Neosho,  Allen,  Anderson,  Coffey,  Woodson,  Wil- 
son, ]\fontgomery,  Chautauqua,  Elk  and  Greenwood,  as  then  con- 
stituted, courts  to  be  held  at  Fort  Scott.  The  remaining  counties 
embraced  in  the  district  of  Kansas  constitute  the  first  division 
thereof,  courts  to  be  held  at  Leavenworth  and.  Topeka. 
Author's  section. 

By  R.  S.  §  531,  Kansas  is  constituted  one  judicial  district.  An  act  of 
18905  created  two  divisions,  and  an  act  of  1802  a  tliird.6  The  jurisdiction 
formerly  exercised  over  Indian  Territory  by  the  Kansas  district  was  taken 
away  in   1S98.T 

§  269.  — Kentucky,  two  districts  and  Owensboro    division. 

Kentucky  has  been  divided  into  two  districts,  an  eastern  and  a 
western,  since  Feb.  12,  1901."  The  eastern  district  includes  the 
territory  then  embraced  in  the  counties  of  Carroll,  Trimble,  Henry^ 
Shelby,  Anderson,  Mercer,  Boyle,  Gallatin,  Boone,  Kenton,  Camp- 
bell, Pendleton,  Grant,  Owen,  Franklin,  Bourbon,  Scott,  Woodford, 
Fayette,  Jessamine,  Garrard,  Madison,  Lincoln,  Eockcastle,  Pulaski, 
Wayne,  Whitley,  Bell,  Knox,  Harlan,  Laurel,  Clay,  Leslie,  Letcher, 
Perry,  Owsley,  Jackson,  Estill,  Lee,  Breathitt,  Knott,  Pike,  Floyd, 
]\Iagoffin,  Martin,  Johnson,  Lawrence,  Boyd,  Greenup,  Carter,  1^1- 
liott,  Morgan,  Wolfe,  Powell,  Menifee,  Clark,  Montgomery,  Batlt^ 
Eowan,  Lewis,  Fleming,  Mason,  Bracken,  Robertson,  ISricholas,  Hai-- 
rison  and  the  waters  thereof.  The  residue  of  the  State  of  Kentucky 
with  the  waters  thereof  constitutes  the  western  district.  From  the 
portion  of  Kentucky  that  is  now  the  western  district,  a  division 
known  as  the  Owensboro  division  had  previously  been  created  on 
Aug.  8,  1888.1^  That  division  is  expressly  continued  by  the  act 
creating  the  two  districts.     It  comprises  the  counties  of  Daviess. 

sAct  June  9.  1890,  c.  403,  2(5  Stat.  ^Aet  :Mar.  1,  1895,  c.  146,  28  Stat. 
129.  699. 

6Act  :Ma.v   3.    1892,  c.   59.   27   Stat.         I'Act  Feb.  12.  1901.  c.  3.^5.  31  Stat 
24.  U.  S.  Couip.   Stat.  1901,  pp.   350,    781.  U.  S.  Comp.  Stat.  1901.  p.  300. 
357.  lOAct  Aug.  8.  1888,  c.  792,  25  Stat. 

389,  U.  S.  Comp.  Stat.  1901,  p.  359. 
428 


Procedure]  LOUISIANA— MASSACHUSETTS.  §  271 

Henderson,  Union,  Christian,  Todd,  Hopkins,  Webster,  ]\IcLean, 
Muhlenberg,  Logan,  Butler,  Grayson,  Ohio,  Hancock  and  Breck- 
enridge  as  then  constituted. 
Author's  section. 

§  270.  — Louisiana,  two  districts,  one  of  two  and  other  of  five 
divisions. 
Louisiana  has  been  divided  into  an  eastern  and  a  western  dis- 
trict since  March  3,  1881.^2  The  western  district  was  divided  into 
four  divisions  on  August  8,  1888,^ ^  which  are  known  as  the  Ope- 
lousas,  Alexandria,  Shreveport,  and  Monroe  divisions;  a  fifth  di- 
vision with  terms  of  court  at  Lake  Charles  was  created  in  1905. 
comprising  the  parishes  of  Acadia,  Calcasieu,  Cameron,  and  Ver- 
non.^^  Subject  to  the  creation  of  this  new  Lake  Charles  division. 
Opelousas  division  comprises  the  parishes  of  Saint  Landry,  Saint 
]\rartin,  Lafayette,  and  Vermillion  as  then  constituted.  The  Alex- 
andria division  comprises  the  parishes  of  Kapides,  Avoyelles,  Cata- 
houla, Grant  and  Winn  as  then  constituted.  The  Shreveport  di- 
vision comprises  the  parishes  of  Caddo,  De  Soto,  Bossier,  Webster. 
Claiborne.  Bienville,  Xatchitoches,  Sabine,  and  Red  River  as  then 
constituted.  The  Monroe  division  comprises  the  parishes  of  Oua- 
chita, Fi-anklin.  Richland.  Morehouse.  East  Carroll,  West  Carroll. 
Madison,  Tensas,  Concordia,  Union,  Caldwell,  Jackson  and  Lincoln 
as  then  constituted.  The  eastern  district  was  divided  into  two  di- 
visions on  Aug.  13,  1888,^-^  known  as  the  Xew  Orleans  and  Baton 
Rouge  divisions.  The  New  Orleans  division  comprises  the  parishes 
of  Assumption,  Iberia,  Jefferson,  Lafourche.  Orleans.  Plaquemines, 
Saint  Bernard,  Saint  Charles,  Saint  James,  Saint  John  the  Baptist. 
Saint  Mary,  Saint  Tammany,  Tangipahoa,  Terrebonne  and  Wash- 
ington as  then  constituted.  The  Baton  Rouge  division  comprises 
tlie  parishes  of  Ascension,  Ea.st  Baton  Rouge,  East  Feliciana,  Liv- 
ingston, Pointe  Coupee.  Saint  Helena,  West  Baton  Rouge  and  West 
Feliciana  as  then  constituted. 
Autlior's  section. 

§  271.  — Maine,  Maryland  and  Massachusetts,  one  district  each. 
The  States  of  Elaine.  Maryland  and  ^Massachusetts  eacli  constitute 

i2Act  Mar.  3.  1881.  c.  144,  il  Stat.         i^Act  Mar.  2,  1905.  c.  1.308.  3.3  Stat. 
507.  U.  S.  Conip.  Stat.  1901,  p.  363.        941,  U.  S.  Comp.  Stat.  lOOo.  p.  100. 

isAct  Alio;.  8,  18S8.  c.  "80.  2o  Stat.         isAct  Aug.  13.  1888.  c.  809.  2.i  St^it. 
388,  U.  S.  Comp.   Stat.   1901.  p.  3(i.-).     438.  U.  S.  Comp.  Stat.  1901.  p.  3lUi. 

429 


S  ::72  JUDICIAL  CIRCUITS  AND  JUDICIAL  DISTRICTS.      [Code   Fed. 

one  Federal  judicial  district. *'     While  terms  are  held  at  ditl'rrcnt 
places  in  all  of  them  except  Massaclnisetts,  they  have  never  been 
parceled  into  judicial  divisions  as  in  the  case  of  so  many  districts. 
Author's  section. 

§  272.  — Michigan,  two  districts,  each  of  two  divisions. 

The  State  of  Michigan  is  divided  into  two  districts,  known  as  tlie 
eastern  and  western  districts  of  Michigan.  Since  April  30,  1894,  the 
eastern  district  of  Michigan  has  been  divided  into  two  divisions. 
known  as  the  northern  division  and  the  southern  division,  respect- 
ively. The  following  named  counties,  as  then  constituted,  comprise 
the  northern  division:  Chebovgan,  Presque  Isle,  Otsego,  Mont- 
morency, Alpena,  Crawford,  Oscoda,  Alcona,  Eoscommon,  Ogeman, 
Iosco,  Clare,  Gladwin,  Arenac,  Isabella,  Midland  Bay.  Tuscola, 
Huron,  Gratiot,  Saginaw,  Shiawassee,  and  Genesee.  The  following 
named  counties,  as  then  constituted,  comprise  the  southern  division  : 
Saint  Clair,  Lapeer,  Sanilac,  Macomb,  Oakland,  Livingston.  Ing- 
ham, Clinton,  Jackson,  Washtenaw,  Wayne.  Branch.  Hillsdale  Lena- 
wee, Calhoun  and  Monroe.^  The  remainder  of  the  State  of  Michigan 
and  its  waters  have  since  June  19,  1878.  constituted  the  western 
district  of  Michigan.  Upon  that  date  it  was  enlarged  to  its  present 
size  and  divided  into  two  divisions,  a  northern  and  a  southern. 
The  northern  division  of  the  western  district  comprises  all  the  ter- 
ritory and  waters  of  the  entire  upper  peninsula  of  Michigan.  The 
southern  division  of  the  western  district  comprises  all  that  jiortiou 
of  said  district  lying  and  being  in  the  lower  peninsula  of  said 
state.2 

Author's  section. 

§  273.  — Minnesota,  one  district  of  six  divisions. 

Minnesota  constitutes  one  judicial  district.^  For  the  purpose  of 
holding  terms  of  court  the  district  of  Minnesota  lias  been  (!i\id(M| 
since  April  26,  1890,  into  six  divisions,  known  as  the  first,  second, 
third,  fourth,  fifth  and  sixth  divisions.  The  portion  of  the  State 
of  Minnesota  comprising  the  counties  of  Winona,  Wabasha,  Olmsted, 
Dodge.  Steele,  Mower,  Fillmore  and  Houston,  as  then  constituted, 
comprise  the  first  division,  the  courts  of  which  are  held  at  W^inona. 

iTSee  R.  S.  §  5.31.  2Aot  June  If).  1878.  c.  32G,  20  St.it. 

lAct  Apr.  .30.  1804.  e.  66,  27  Stat.     17.5.  U.  S.  romp.  Stat.  1901,  p.  370. 
67,  U.  S.  Comp.  Stat.  1901,  p.  372.  4R.   S.   §   531. 

430 


Procedure]  MISSISSIPPI.  §  274 

The  counties  of  Freeborn,  Faribault,  ]\rartin,  Jackson,  Xobles,  Eock. 
Pipestone,  Murray,  Cottonwood,  Wantonwan,  Blue  Earth,  Waseca. 
Le  Soeur,  Xieollet,  Brown,  Eedwood,  Lyon,  Lincoln,  Yellow  Medi- 
cine, Sibley  and  Lac  Qui  Parle,  as  then  constituted,  comprise  the 
second  division,  the  courts  of  which  are  held  at  Mankato.  The 
counties  of  Chicago,  Washington,  Eamsey,  Dakota,  Goodhue,  Eice 
and  Scott,  as  then  constituted,  comprise  the  third  division,  tlie  couris 
of  Avhich  are  held  at  Saint  Paul.  The  counties  of  Hennepin, 
Wright,  Meeker,  Kandiyohi,  Swift,  Chippewa,  Eenville,  McLeod, 
Carver,  Anoka.  Sherburne,  and  Santi,  as  then  constituted,  compi'isc 
the  fourth  division,  the  courts  of  which  are  held  at  Minneapolis. 
The  counties  of  Cook,  Lake,  Saint  Louis,  Itasca,  Cass,  Crow  Wing, 
Aitkin,  Carlton,  Pine,  Kanabec,  Mille  Lacs,  Morrison  and  Benton, 
as  tlien  constitucd,  comprise  the  fifth  division,  the  courts  of  which 
are  lield  at  Duluth.  The  counties  of  Stearns,  Pope,  Stevens,  Big 
Stone,  Traverse.  Grant,  Douglas,  Todd,  Otter  Tail,  Wilkin,  Clay, 
Becker,  Wadena.  Xorman,  Polk,  Marshall,  Kittson,  Beltromi  and 
Hubbard,  as  then  constituted,  comprise  the  sixth  division,  the  courts 
of  which  are  held  at  Fergus  Falls.^ 
Author's  section. 

§  274.  —  Mississippi,  two  districts  of  two  and  four  divisions. 

Mississippi  is  divided  into  a  northern  and  a  southern  district.^ 
Since  June  15,  1882,  the  northern  district  has  been  divided  into 
an  eastern  and  a  western  division.  The  eastern  division  of  the 
northern  district  comprises  the  counties  of  Chickasaw,  Winston, 
.Vttala,  Tishomingo,  Alcorn,  Prentiss,  Itawaml)a,  Lee.  Monroe, 
Lowndes.  Oktibbeha,  Choctaw,  Pontotoc,  and  Clay^  as  then  con- 
stituted. The  western  division  of  the  northern  district  comprises 
the  counties  of  Benton,  Coahoma,  Calhoun,  Carroll,  De  Soto,  Gren- 
ada, Lafayette,  Marshall,  Montgomery,  Panola.  Quitman,  Talla- 
hatchie, Tate,  Tippah,  Tunica,  Union,  Webster  and  Yalabusha  as 
then  constituted.  The  southern  district  of  Mississippi  is  divided 
into  four  divisions,  kno\vn  as  the  southern,  eastern,  western  and 
Jackson  divisions.  The  southern  division  of  the  southern  district 
was  created  April  4,  1888,^  and  comprises  the  counties  of  Hancock, 

cAct  Apr.  26.  1890.  c.  Kw,  26  Stat.  c.  218.  22  Stat.  101,  U.  S.  Comp.  Stat. 
72.  U.  S.  Comp.  Stat.  1001,  p.  374.  1901,  p.  377. 

8R.    S.    §    539,   act   June    15,    1SS2,         ?Act  Apr.  4.   18SS.   c.   58.   25   Stat. 

78,  U.  S.  Comp.  Stat.  1901.  p.  381. 
431 


^   275  JUDICIAL  CIRCUITS  AND  JUDICIAL  DISTRICTS.      [Code   Fed. 

Harrison,  Jackson,  Marion,  Perry  and  Greon  as  tlien  constituted. 
The  eastern  division  was  created  July  18,  1894,  and  comprises  thr 
counties  of  Lauderdale,  Kemper.  Noxubee.  Leake,  Nesho])a,  Xewton. 
Jasper,  Clarke,  Wayne  and  Jones  as  then  constituted,  courts  to 
be  held  at  Meridian.^*'  The  western  division  of  the  southern  dis- 
trict was  created  Feb.  28,  1887,  and  comprises  the  counties  of 
Washington,  Sharkey,  Isaquena  and  Warren,  as  then  constituted,^^ 
and  Claiborne  county  as  constituted  March  2,  1899.  when  it  was 
added  to  the  western  di\'ision  -^^  and  Bolivar  and  Sunflower  counties 
as  constituted  April  11  1888,  when  they  were  added  to  the  western 
division. 12  The  remaining  counties  of  the  southern  district  seem 
not  to  have  been  organized  as  or  declared  a  division  of  that  district : 
but  such  is  the  effect  of  the  creation  of  other  divisions  out  of  that 
district.  These  counties  are  Adams,  Amite,  Copiah,  Covington, 
Franklin,  Hinds,  Holmes,  Jefferson,  Lawrence,  Lincoln,  Leflore, 
Madison,  Pike,  Eankin,  Simpson,  Smith,  Scott,  Wilkinson  and 
Yazoo,  and  terms  of  circuit  and  district  courts  therefor  are  held 
at  Jackson. 1"* 

Author's  section. 

§  275.  —  Missouri,  two  districts  of  three  and  five  divisions. 

Missouri  is  divided  into  two  districts  an  eastern  and  a  western. ^^ 
On  February  28,  1887,^'  the  eastern  district  was  divided  into  a 
northern  and  an  eastern  division,  and  on  January  31,  1905,  a  new 
division  known  as  the  southeastern  division  was  created  comprising 
the  counties  of  Cape  Girardeau,  Scott,  Mississippi,  New  Madrid, 
Pemiscot,  Dunklin,  Stoddard,  Butler,  Ripley,  Carter,  Oregon, 
Shannon,  Reynolds,  Wayne,  Madison,  Bollinger  and  Perry  with 
terms  of  court  at  Cape  Girardeau. ^^  Subject  to  this  new  division, 
the  eastern  division  of  the  eastern  district  now  comprises  tlie 
city  of  Saint  Louis  and  the  counties  of  Saint  Louis,  Frank- 
lin, Gasconade,  Jefferson,  Crawford,  Washington,  Saint  Fran- 
cois, Saint  Genevieve,    Dent,    Iron,    Montgomery,    Lincoln,    War- 


lOAct    July,    18.    1894.    c.    144.    28  i^See  R.  S.  §  658, 

Stat.  114,  U.  S.  Comp.  Stat.  1901,  p.  i6R.  S.  §  540,  Act  Apr.  8,  1878.  c. 

382.  51.    20    Stat.    ,%,    U.   S.   Comp.    Stat. 

iiAct  Feb.  28,  1887.  c.  279.  24  Stat.  1901,  p.  385. 

430.  U.  S.  Comp.  Stat.  1901,  p.  3S0.  iTAet  Feb.  28.  1887,  c.  271.  24  Stat. 

i2Act  Mar.  2,  1899.  c.  379.  30  Stat.  424,  U.  S.  Comp.  Stat.  1901,  p.  385. 

995,  U.   S.  Comp.  Stat.   1901.   p.  384.  isAct  Jan.  31,  1905,  c.  287,  33  Stat. 

i3Act  Apr.  11.  1888.  e.  81,  25  Stat.  626,  U.  S.  Comp.  Stat.  l905,  p.  103. 
84,  U.  S.  Comp.  Stat.  1901,  p.  380. 

432 


I 


Proceaurej  MISSOURI.  S  275 

reu,  Audrain,  and  Saint  Charles  as  then  constituted,  the  courts 
for  which  are  now  held  at  the  city  of  Saint  Louis.  The  coun- 
ties of  Linn  and  Chariton  were  transferred  from  the  western 
to  the  eastern  district  on  April  8,  1904/^  but  whether  to  tlie 
eiistern  or  northern  division,  does  not  appear.  The  northern  divi- 
sion of  said  district,  the  courts  for  which  are  held  at  the  city  of 
Hannibal,  comprises  the  counties  of  Adair,  Clark,  Knox,  Lewis, 
Macon,  Marion,  Monroe.  Pike,  Kails.  Randolph,  Schuyler,  Scot- 
land and  Shelby,  as  then  constituted.  The  western  district  was 
divided  Feb.  28,  1887,2°  into  the  Saint  Joseph,  the  western,  cen- 
tral, and  southern  divisions:  and  on  Jan.  24,  1901.  a  fifth  division, 
known  as  the  southwestern,  was  created.  The  southwestern  division 
comprises  counties  of  Jasper,  ISTewton,  Barton,  Vernon,  Barry, 
Lawrence,  McDonald  and  Stone,  as  constituted  at  the  time  of  the 
creation  of  the  division.  The  western  division  comprises  the  coun- 
ties of  Clay,  Eay,  Carroll,  Chariton,  Sullivan,  Jackson,  La  Fayette, 
Saline,  Cass,  Johnston,  Bates.  Henry,  Putnam.  Caldwell,  T^iving- 
ston,  Grundy,  Mercer,  Linn  and  Saint  Clair,  as  constituted  Feb.  28, 
1887,  the  courts  for  which  are  held  at  the  city  of  Kansas.  The 
St.  Josepli  division  comprises  the  counties  of  Atchison,  Xodaway, 
Holt,  Andrew,  Buchanan,  Platte,  Clinton,  Harrison,  Daviess,  De 
Klab,  Gentry  and  Worth  as  constituted  Feb.  28.  1887:  the  courts 
tlierefor  are  held  at  tlie  city  of  Saint  Joseph.  The  southern  di- 
vision comprises  the  counties  of  Cedar,  Polk,  Dallas,  Laclede, 
Pulaski,  Dade,  Greene,  Webster,  Wright,  Texas,  Christian,  Douglas, 
Howell,  Taney  and  0/ark.  tlie  courts  for  which  are  held  at  Spring- 
field. Formerly  the  counties  of  the  southern  division  were  divided 
for  circuit  court  pui-poses  between  the  western  and  the  central 
divisions.  But  since  April  19.  ]892,i  terms  of  the  circuit  court 
have  been  held  at  Springfield.  The  central  division  comprises 
the  counties  of  Benton.  Boone,  Callaway,  Cooper,  Camden,  Cole, 
Hickory,  Howard.  Maries,  ^liller.  ^loniteau,  Morgan,  Osage,  Pettis, 
and  Phelps,  as  constituted  Feb.  28,  1887. 
Author's  section. 

The   act    creating   these   variou-.   divisions    (except   the   one  last   created) 
created  a    separate   circuit   and    district   court    in    each    such    divi-^ion.   con- 

l9Act  Apr.  S.  1004.  c.  047.  .33  Stat.         lAct   Apr.  10.   ISOJ.  c  .lO.  27  Stnt. 
1G4,  U.  S.   Coinp.  Stat.   190.5.   p.    102.    20,   X.   S.    Comp.    >'>uit.    1901,   p.   388, 

20Act  Fel).  28.  1887.  c.  271.  24  Stn?. 
424.  r.  S.  Conio.  Stat.  1001.  p.   .^S.l. 
Fed.  Proc— 28.  433 


i   276  JUDICIAL  CIRCUITS  AND  JUDICIAL  DISTRICTS.      [Code  Fed. 

trary  to  tho  usual  policy  of  Congress  in  providing  one  circuit  and  one  dis- 
trict court  in  each  district.2 

§  276.  — Montana,  Nebraska,  Nevada,  New  Hampshire  &  New 
Jersey,  each  one  district. 
The  States  of  Montana,  Nebraska,  Nevada,  New  Hampshire  and 
New  Jersey  each  constitute  one  judicial  district.    In  none  of  them 

are  there  any  judicial  divisions  of  such  districts,  though  there  were 
at  one  time  two  divisions  in  Montana*  and  terms  are  held  in  difEer- 
ent  places.^ 

Author's  section. 

§  277.  — New  York,  four  districts. 

The  State  of  New  York  was  on  May  12,  1900J  divided  into  four 
districts,  called  the  western,  northern,  eastern,  and  southern  dis- 
tricts of  New  York.  The  western  district  includes  the  counties  of 
Allegany,  Cattaraugus,  Chautauqua,  Chemung,  Erie,  Genesee,  Liv- 
ingston, Monroe,  Niagara,  Ontario,  Orleans,  Schuyler,  Seneca, 
Steuben,  Wayne,  Wyoming  and  Yates  as  then  constituted,  with  the 
waters  thereof.  The  northern  district  includes  the  counties  of  Al- 
bany, Broome,  Cayuga,  Chenango,  Clinton,  Cortland,  Delaware, 
Essex,  Franklin,  Fulton,  Hamilton,  Herkimer,  Jefferson,  Lewis, 
Madison,  Montgomery,  Oneida,  Onondaga,  Oswego,  Otsego,  Rens- 
selaer, Saint  Lawrence,  Saratoga,  Schenectady,  Scholiarie,  Tioga, 
Tompkins,  Warren  and  Washington,  as  tlien  constituted,  with  the 
waters  thereof.  The  eastern  district  includes  the  counties  of  Eich- 
mond.  Kings,  Queens,  Nassau  and  Suffolk,  as  then  constituted,  with 
the  waters  thereof.  The  southern  district  includes  the  residue  of 
said  State,  with  the  waters  thereof. 
Author's  section. 

In  1833  the  States  of  New  York  and  New  Jersey  entered  into  an  agree- 
ment changing  the  boundary  line  between  them.  This  agreement  was  ap- 
proved by  Congress  in  1834s  and  became  operative  in  determining  the 
territorial  limit  of  the  Federal  courts  of  those  States. 9  Since  by  that 
agreement  waters  of  the  Hudson  river  lying  west  of  ^lanhattan  Island  are 


2See  ante.  §  103.  note.  vAct  M<av  12.  1900.  c.  301.  31  Stat. 

4Act  Julv  20,  1892.  c.  208,  27  Stat.    175,  U.   S.'Comp.  Stat.   1901.  p.  .395. 

252.    repealed    July    7,    1898,    c.    571,        SAct  Juno  28.  1834,  4  Stat.  708. 

30  Stat.  685.  U.  S.  Comp.  Stat.  1901,        ^Devoe  Mfg.  Co.  Petitioner.  108  V. 

p.  391.  S.  401.  27  L.  ed.  7(!4,  2  Sup.  Ct.  Eei'. 

5Post,  §  3.33  et  seq.  894;  The  Xorma,  32  Fed.  411;  Pin 

ney  v.  The  Hungarian,  41  Fed.   109. 
434 


Procedure]  NORTH    CAROLINA— NORTH    DAKOTA.  5   270 

within  the  exclusive  jurisdiction  of  New  York,  they  are  waters  of  that 
State  within  the  meaning  of  this  provision. lo  The  cession  of  West  Point 
to  the  Federal  government  did  not  take  it  out  of  the  State  so  as  to  except  it 
from  the  judicial  district  in  which  it  is  located. n 

§  278,  —  North  Carolina,  two  districts. 

The  State  of  Xortli  Carolina  was  divided  into  two  districts, 
June  4,  1872/-^  called  the  eastern  and  western  districts  of  Xortli 
Carolina.  The  western  district  includes  the  counties  of  Mecklen- 
burg, Cabarras,  Stanly,  Montgomery,  Davie,  Davidson,  Randolph, 
Guilford,  Rockingham,  Stokes,  Forsyth,  Union,  Anson,  Caswell,  Ala- 
mance, Orange.  Clay.  Cherokee.  Swain,  Macon,  Jackson,  Graham, 
Haywood,  Transylvania,  Henderson,  Buncombe.  ^ladison.  Yancey, 
Mitchell,  Watauga,  Ashe,  Alleghany,  Caldwell,  Burke,  ilcDowell, 
Rutherford,  Polk.  Cleveland,  Gaston,  Lincoln,  Catawba.  Alexander, 
Wilkes,  Surry,  Iredell,  Yadkin  and  Rowan  and  all  territory  eudiraeed 
therein  which  may  after  said  June  4,  1872,  be  erected  into  two  new 
counties.  The  eastern  district  includes  the  residue  of  said  State, 
the  counties  of  Person,  Durham,  Chatham.  ^loore  and  Richmond 
were  transferred  thereto  from  the  western  district  on  Aug.  9, 
1894.^4 

Author's  section. 

§  279.  —  North  Dakota,  one  district  of  five  divisions. 

The  State  of  Xortli  Dakota  constitutes  one  district.  But  for  the 
purpose  of  holding  terms  of  the  district  court  said  district  was  on 
June  29,  1906,  divided  into  five  divisions,  known  as  the  south- 
western, southeastern,  northeastern,  northwestern,  and  western  di- 
visions. That  portion  of  the  State  comprising  the  counties  of 
Burleigh,  Stutsman,  Logan,  ]\IcIntosh,  Emmons,  Kidder,  Foster, 
Wells,  McLean,  as  then  constituted,  and  all  the  territory  in  said 
State  of  Xorth  Dakota  lying  west  of  the  Missouri  River  and  south 
of  the  twelfth  standard  parallel  constitutes  the  southwestern  di- 
vision, the  court  for  which  is  lield  at  the  city  of  Bismarck.  That 
portion  of  the  State  comprising  the  counties  of  Cass,  Richland, 
Barnes,  Dickey,   Sargent,  Tiamoure,  Ransom,   Griggs  and   Steele, 

lOSpp  The  Xorma,  3-2  Fed.  414.  As  13R.  S.  §  543,  U.  S.  Comp.  St.it. 
to  jurisdiction  over  vessel  at  anchor     1(101.   p.   397. 

in  the  Hudson  E-iver.  see  The  Sarah         i4Act  Aug.  9.  1894.  e.  244.  28  St  it. 
E.  Kennedy.  2.5  Ted.  .569.  274,  U.  S.  Comp.  Stat.  1901,  p.  308. 

iiBeekman    v.   Hudson    River,    etc. 
R.  Co.  35  Fed.  3. 

435 


§    280  JUDICIAL   CIRCUITS  AXD   JUDICIAL   DISTRICTS.      [Code   Fed. 

as  thev  tlieii  exi.sted.  constitutes  tlie  soutlieastorn  division,  the  court 
for  wliieli  is  lield  at  tlie  city  of  Fargo.  Tliat  portion  of  tlie  State 
comprising  tlie  counties  of  Grand  Forks,  Traill.  Walsh.  Penihina, 
Cavalier  and  Nelson  as  they  then  existed  constitutes  the  northeast- 
ern division,  the  court  for  which  is  held  at  the  city  of  Grand  Forks. 
That  portion  of  the  .State  comprising-  the  counties  of  Kamsey.  Eddy, 
Benson.  Towner,  Eolette.  Bottineau,  Pierce  and  ^[c Henry  as  they 
then  existed  constitutes  the  northwestern  division,  the  court  for 
which  is  held  at  the  city  of  Devils  Lake.  That  portion  of  the  State 
comprising  the  counties  of  Ward  and  Williams  as  they  then  existed 
and  all  that  territory  lying  west  of  the  Missouri  River  and  north 
of  the  tAA'elfth  standarcl  ])arallel  in  the  State  of  North  Dakota  con- 
stitutes the  western  division,  the  court  for  which  is  held  at  the 
city  of  Minot.^*' 
Author's  section. 

While  the  act  only  creates  divisions  for  the  purpose  of  holding  terms 
of  the  district  court,  it  fixes  circuit  court  terras  at  the  same  times  and 
places. 

§  280.  —  Ohio,  two  districts  of  two  divisions  each. 

The  State  of  Ohio  is  divided  into  two  districts,  called  the  north- 
ern and  southern  districts  of  Ohio.^^  On  June  8,  1878. ^^  the  north- 
ern district  was  divided  into  two  divisions,  known  as  the  eastern  and 
Avestern  division  of  the  northern  district  of  Ohio.  The  western 
division  consists  of  the  counties  of  Williams,  Detiance,  Paulding, 
Van  Wert,  Mercer,  Auglaise,  Allen,  Putnam.  Henry,  Fulton,  Lucas, 
Wood,  Hancock,  Hardin,  IMarion,  AYyandotte,  Seneca,  Sandusky, 
Ottawa,  Erie  and  Huron  as  then  constituted.  The  eastern  division 
consists  of  the  counties  of  Ashland.  Ashtabula.  Cayahoga,  Carroll, 
Columbiana,  Crawford,  Geauga.  Holmes,  Lake,  Lorain,  ]\Iedina,  Ma- 
honing, Portage.  Richland.  Summit,  Stark,  Tuscarawas,  Trumbull 
and  Wayne  as  then  constituted.  On  Feb.  4,  1880,20  the  southern  dis- 
trict was  divided  into  two  divisions,  known  as  the  eastern  and  the 
western  divisions  of  the  southern  district  of  Ohio.  The  eastern  divi- 
sion consists  of  the  counties  of  Union.  Delaware,  Morrow,  Knox, 
Coshocton.  Harrison.  Jefferson.  Madison.  Fayette,  Franklin,  Pick- 

i6Act  June  -29,  1000.  c.  .3595.  34  li'Act.  June.  8.  1878.  o.  169.  20 
Stat.  609.  Stat.  101,  U.  S.  Comp.  Stat.  1901.  p. 

isR.   S.    §    544.   U.    S.   Comp.   Stat.     401. 
1901,  p.  401.  20Act  Feb.  4.  1880.  c.  18.  21  Stat. 

l>3,  U.  S.  Comp.  Stat.  1901.  p.  403. 
436 


nocedure]  OKLAHOMA— PEXNSVLVAXIA.  §   283 

away,  Eoss,  Pike,  Gallia,  Jackson,  Meigs,  Vinton,  Athens,  Hocking, 
Fairfield,  Licking,  Perry,  ]\Iuskingum,  Morgan,  Washington,  Xoble, 
Monroe,  Belmont  and  Guei-nsey  as  then  constituted,  and  the  county 
of  Logan,  as  constituted  March  2,  1891,  when  it  was  transferred  to 
the  eastern  division  of  the  southern  district.^  The  western  divi- 
sion of  the  southern  district  of  Ohio  comprises  the  remaining  coun- 
ties in  said  State.^ 
Author's  section. 

§  281.  —  Oklahoma,  two  districts. 

The  State  of  Oklahoma  is  to  constitute  an  eastern  and  a  western 
judicial  district,  of  which  what  was  Indian  Territory  is  the  eastern 
with  terms  of  court  at  ^Muscogee,  Vinita.  Tulsa,  )South  McAlestei-. 
Chickasha,  and  Ardniore.  The  western  district  is  the  former  Terri- 
ritory  of  Oklahoma,  with  terms  of  court  at  Guthrie,  Oklahoma  City, 
and  Enid."* 
,       Author's  section. 

§  282.     Oregon,  one  district. 

The  State  of  Oregon  constitutes  but  one  district,  court  being  held 
at  Portland.6 

Author's  section. 

§  283.  —  Pennsylvania,  three  districts. 

Since  March  2,  1901,  the  State  of  Pennsylvania  has  been  divided 
into  three  districts,  called  the  eastern,  middle  and  western  districts 
of  Pennsylvania.  Prior  thereto  the  state  was  divided  into  an  east- 
ern and  a  western  district.  Tlie  middle  district  then  created'^  com- 
prises the  counties  of  Lackawanna,  Wyoming,  Bradford,  Monroe. 
Wayne,  Pike,  Susquehanna,  Carbon,  Tioga,  Potter,  Cameron,  Clin- 
ton, Lycoming,  Center.  TTuion,  Snyder,  Mifflin,  Jimiata,  Xorthum- 
berland,  Montour,  Columbia,  Sullivan,  Luzerne,  Dauphin,  Leljanon. 
Perry,  Huntingdon,  Fulton,  Franklin,  Adams,  York  and  Cumber- 
land as  then  constituted  and  defined.  All  that  portion  of  the  State 
cast  of  the  middle  district  constitutes  the  eastern  district  of  Penn- 

lAct  Mar.  2.  1S!M.  c.  4f«.  2ti  Stat.  ^Act  June,  16.  1906.  c.  ,3335.  34 
799,  U.  S.  Comp.   Stat.  1901.  p.  405.    Stat.  275. 

2Act  Feb.   4.    1880.  c.    18.   21    Stat.         6R.  S.   §  531. 
63,  U.  S.  Comp.  Stat.  1901,  p.  403.  sAct  Mar.  2,  1901,  c.  801,  31   Stat. 

880,  U.  S.  Comp.  Stat.   1901,  p.  405. 

437 


§   284  JUDICIAL  CIRCUITS  AND  JUDICIAL  DISTRICTS.      [Code  Fed. 

sylvania,  and  all  that  portion  westerly  thereof  constitutes  the  west- 
ern district.^ 

Author's  section. 

§  284.  —  Ehode  Island,  one  district. 

The  State  of  Rliode  Island  constitutes  but  one  judicial  district, 
with  terms  of  court  at  Providence  and  Kewport.^^ 
Author's  section. 

§  285.  —  South  Carolina,  one  district  of  two  divisions. 

The  State  of  South  Carolina  is  divided  into  two  districts,  which 
shall  be  called  the  eastern  and  western  districts  of  the  district  of 
South  Carolina.  The  M-estern  district  includes  the  counties  of  Lan- 
\'aster,  Cliester,  York,  Union,  Spartanburgh,  Greenville,  Pendleton, 
Abbeville.  Edgefield,  ISTewberry,  Laurens  and  Fairfield  as  they  ex- 
isted February  21,  1823.  The  eastern  district  includes  the  residue 
(of  said  State. 
I         R.  S.  §  540,  U.  S.  Comp.  Stat.  1901.  p.  407. 

The  ambiguity  in  speaking  of  two  districts  "of  the  district  of  South 
(■arolina"  has  been  resolved  by  a  recent  decision  of  the  Supreme  Court  de- 
claring that  but  one  Federal  judicial  district  is  created  and  that  it  has 
two  divisions  as  defined  above. is  The  statutes  respecting  terms  of  court  in 
South  Carolina  seem  to  contemplate  one  circuit  court  for  both  divisions, 
but  two  district  courts,  one  for  each  division. 1 4 

§  286.  —  South  Dakota,  one  district  of  four  divisions. 

South  Dakota  constitutes  only  one  district.  But  for  the  pur- 
pose of  holding  terms  of  the  district  court  said  district  was  divided 
on  Xov.  3, 1893,^  "^  into  four  divisions,  known  as  the  southern,  north- 
i-rn,  central  and  western  divisions.  The  counties  of  Clay,  Union, 
Yankton,  Turner,  Ijincoln,  Bonhomme  Charles,  Mix,  Douglas, 
Hutchinson,  Brule,  Aurora.  Davison,  Hanson,  McCook,  JMinnehaha, 
Moody,  Lake,  Lyman.  Miner.  Sanborn,  Beadle,  Gregory,  Kingsbury 
and  Todd  as  then  constituted,  and  the  Yankton,  Crow  Creek,  and 

9R.  S.  §  545.  enumerated  the  coun-         i^See   Act  Dec.   21.    i898.    c.   32.    § 

ties   in   the   western  district   as   tliev  4,  .30  Stat.  7(59;  Act  Mav  10,  1900,  c. 

existed   in    1818.     U.   S.   Comp.    Stat.  390.  31    Stat.  174,  U.  S.'Comp.   Stat. 

1901,  p.  405.  1901,   p.   410.     See  also   ante,    §    103 

iiR.  S.  §^  .531.  572.  note. 

isBarret't  v.  United  States,  1G9  U.         isAct  Xov.  3,  1893.  c.   10.  28  Stat. 

S.  228,  42  L.  ed.  72(),  18  Sup.  Ct.  Rep.  5.  U.   S.  Comp.   Stat.   1901,  p.  411. 
327.     See  Young  v.   Ins.   Co.  29  Fed. 
275;  The  Hungaria,  41  Fed.  109. 

438 


Procedure]  TENNESSEE.  §  287 

Lower  Brule  Indian  reservations,  constitute  the  southern  division, 
the  court  for  which  is  held  at  tlie  citv  of  Sioux  Falls.  The  counties 
of  Brookings,  Hamlin,  Denel,  Grant,  Eoberts,  Codington,  Clark, 
Day.  Marshall,  Spink,  Brown,  IMcPherson,  Edmunds,  Campbell, 
Walworth,  as  then  constituted,  and  the  Sisseton  and  Wahpaton 
reservation  constitute  the  northern  division,  the  court  for  which 
is  held  at  Aberdeen.  The  counties  of  Potter,  Sully,  Faulk,  Hand, 
Hyde,  Hughes,  Buffalo,  Jerauld,  Stanley,  Xowlin  as  then  consti- 
tuted and  that  portion  of  the  counties  of  Pratt,  Jackson,  and 
Sterling  not  included  in  any  Indian  reservation,  and  the  Standing 
Rock  and  Cheyenne  Indian  reservations,  constitute  the  central  di- 
vision, the  court  for  which  is  held  at  the  city  of  Pierre.  All  that 
portion  of  the  State  of  South  Dakota  lying  west  of  the  central  and 
southern  divisions,  and  in  addition  thereto  the  Rosebud  and  Red 
Cloud  Indian  reservations,  constitute  the  western  division,  the 
court  for  which  is  held  at  the  city  of  Deadwood. 
Author's  section. 

§  287.  —  Tennessee,  three  districts,  one  having  three  and  others 
two  divisions. 
The  State  of  Tennessee  is  divided  into  three  districts,  called  the 
eastern,  western,  and  middle  districts  of  Tennessee.  The  eastern 
district  includes  the  counties  of  Anderson,  Bledsoe,  Blount,  Bradley, 
Campbell,  Carter,  Claiborne,  Cocke,  Cumberland,  Grainger,  Greene, 
Hamilton,  Hancock,  Hawkins,  Jefferson,  Johnson,  Knox,  ■Mc- 
Minn,  Marion,  ]\Ieigs,  Monroe,  Morgan,  Polk,  Rhea,  Scott, 
Sevier,  Sullivan,  Union,  Washington  and  Grundy,  as  they  ex- 
isted February  10,  1856,^^  and  the  county  of  Fentress  as  con- 
stituted December  27,  1884,^^  when  it  was  transferred  from  the 
middle  district.  The  western  district  includes  the  counties  of 
Benton,  Carroll,  Henry,  Obion,  Dyer,  Gibson,  Lauderdale.  Hay- 
wood, Tipton,  Shelby,  Fayette,  Hardeman,  McXairy,  Hardin,  Mad- 
ison, Henderson,  Perry  and  Weakley,  as  they  existed  June  18, 
1838.20  The  middle  district  includes  the  residue  of  said  State.  The 
middle  district  is  not  divided  into  subdivisions,  but  each  of  the 
others  is  divided.  The  eastern  district  comprises  tbe  northeastern, 
the  nortliern    and   tbe  southern  divisions.     The  nortbeastern   was 


isAct  Fed.  10.  18.50.  c.  S  1 .  11  Stat.    280.  U.   S.  Conip.   Stat.   1901.  p.  417. 
1.  lioAct  June  18.  1838.  c.  18,  5  Stat. 

"Act   Dec.  27,   1884.  c.  7,  23  Stat.    249 

439 


§   288  JUDICIAL  CIKCI  ITS  AND  JUDICIAL  DISTUICTS.      [Code  Fed. 

created  Feb.  7.  U)(I0.  ovit  of  counties  then  embraced  within  the 
northern  and  soutliern  divisions,  and  comprises  the  counties  of 
Jolinson.  Carter.  Unicoi,  Sullivan,  Washinoton,  (rreene,  Hawkins, 
Hancock,  Cocke  and  Hamblen,  as  then  constituted.  The  southern 
division  was  created  June  11,  18<S0,i  and  now  com])rises  the  counties 
of  Hamilton,  James,  Polk,  McMinn,  Bradley,  Meigs,  Rhea,  Marion, 
Sequatchie,  Bledsoe,  Grundy.  Fentress^  and  Cumberland  as  then 
constituted.  The  northern  division  consist  of  the  i-eiuaining  coun- 
ties in  the  eastern  district.  Since  June  "^0,  1878,-  the  western  dis- 
trict has  been  separated  into  the  eastern  and  western  divisions.  The 
eastern  division  includes  the  counties  of  Benton,  Hardeimin,'  Car- 
roll. Decatur,  Gibson,  Henderson,  Henry,  Madison,  ^MciSTairy,  Hard- 
en, Dyer,  Lake,  Crockett,  Weakley  and  Obion  as  then  constituted, 
and  the  county  of  Hardeman  as  constituted  Jan.  15.  188;).-'-  when  it 
was  detached  from  the  western  division.  The  remaining  counties 
embraced  in  the  w^estern  district  constitute  the  western  division 
thereof,  the  county  of  D3'er  having  been  detached  from  the  eastern 
and  added  to  the  western  division  on  May  24,  1900.'* 
Author's  section. 

§  288.  —  Texas,  as  divided  into  four  districts. 

The  State  of  Texas  is  divided  into  four  judicial  districts,  called 
the  northern,  the  eastern,  the  southern,  and  the  western  ju  licial 
districts  of  the  State  of  Texas.  The  northern  judicial  district  in- 
cludes the  follow'ing  counties  as  they  existed  March  11,  1902,  when 
the  present  distribution  of  counties  was  made,  and  the  waters  there- 
of: JSTavarro,  Johnson,  Ellis,  Kaufman,  Dallas,  Rockwall,  Hunt, 
Comanche,  Hood,  Erath,  Tarrant,  Parker,  Palo  Pinto,  Wise,  Clay, 
Jack,  Young,  Wichita,  Wilbarger,  Archer,  Baylor,  Cottle,  Harde- 
man, Motley,  Briscoe,  Hall,  Childress,  Collingsworth,  Donley,  x'Vrm- 
strong.  Deaf  Smith,  Randall,  Oldham,  Potter,  Carson,  Gray,  Wheel- 
er, Hemphill,  Lipscomb,  Ochiltree,  Roberts,  Hutchinson,  Hansford, 
Sherman,  Moore,  Hartley,  Dallam.  Eastland,  Stephens,  Throck- 
morton, Shackelford,  Callahan,  Taylor,  Jones,  Haskell,  Knox,  No- 
lan, Fisher,  Stonewall,  Kent,  Dickens,  King,  Crosby,  Garza,  Lub- 
bock, Gaines,  Andrews,  Mitchell,  Scurry,  Borden.  Howard,  Martin, 


lAct  .Time  11.  1880.  e.  -iO.-?.  21  Stat.  3 Act  Jan.  15.  1883.  c.  25,  22  Stat. 
175.  U.  S.   Coinp.  Stat.    \90\.  p.  415.     402.  U.  S.  Conip.  Stat.  1901.  p.  417. 

2Act  June.  20,  1878,  c.  .359.  20  Stat.  ^Act  Mav  24.  1900,  c.  549,  31  Stat. 
235,  U.  S.  Comp.  Stat.  1901,  p.  414.         183,  U.  S.'Comp.  Stat.  1901,  p.  420. 

440 


Procedure]  TEXAS.  {  289 

Midland,  Glasscock,  Sterling,  Coke,  Tom  Green,  Crockett,  Schleicher, 
Sutton,  Irion,  Mills,  Eunnels,  Coleman,  Brown,  Bailey,  Castro, 
Cochran,  Dawson,  Floyd,  Foard,  Hale,  Hockley.  Lamb,  Lynn,  Par- 
mer. Swisher,  Terry,  Upton,  Yoakum,  Concho,  and  Menard.  The 
eastern  judicial  district  includes  the  following  counties  as  con- 
stituted at  said  date  and  the  waters  thereof:  Cooke.  Denton. 
Montague,  Collin,  Grayson,  Liberty.  JefFerson.  Orange.  Xewton, 
Jasper,  Hardin,  Tyler,  San  Augustine,  SaiMue.  Shelby,  "N'acog- 
floches,  Angelina,  Houston.  Anderson,  Cherokee,  Panola,  Kusk, 
Smitli.  Henderson,  Van  Zandt,  Pains,  Gregg,  Wood,  Upshur,  Har- 
rison, Marion,  Cass,  Bowie,  Red  River,  Titus,  Camp,  Hopkins, 
Moriis.  Franklin,  Lamar,  Fannin  and  Delta.  The  southern  judi- 
cial district  includes  the  following  counties  as  constituted  at  said 
date  and  the  waters  thereof:  Polk,  Trinity,  i\Iadison,  Brazos. 
Grinu's.  Walker,  San  Jacinto,  Montgomery,  Harris,  Chambers, 
Galveston,  Brazoria,  Fort  Bend,  Waller,  Austin,  Colorado,  Lavaca, 
Wharton,  Matagorda,  Jackson,  Victoria,  Goliad,  Calhoun,  Refugio. 
Aransas,  San  Patricio,  Nueces,  Cameron,  Hidalgo,  Starr,  Zapata, 
Webb,  Lasalle,  McMuUen,  Duval  and  Fayette.^  The  western  judi- 
cial district  includes  the  following  counties  as  constituted  at  said 
date  and  the  waters  thereof:  Maverick,  Bee.  Live  Oak.  Karnes, 
Dewitt,  Gonzales.  Guadalupe,  Wilson,  Atascosa,  Bexar.  Comal,  Ken- 
dall, Kerr,  Edwards,  Bandera,  Medina,  Frio.  Zavalla.  Uvalde,  Kin- 
ney, Pecos.  Presidio.  FA  Paso,  Washington,  Burleson,  ]\lilam,  Rob- 
ertson, Leon.  Freestone,  Limestone,  Hill,  Bosque.  Somervell,  Ham- 
ilton. Coryell.  i\rcLennan.  Falls,  Bell,  Williamson,  l^ee,  Bastrop. 
Caldwell.  Hays.  Travis,  Blanco,  Burnet,  Gillespie.  Llano,  Mason, 
]\IcCulloch.  Kimble,  San  Saba,  Lampasas,  Brewster,  Winkler,  Ward. 
Valvei'de.  Crane,  Ector.  Jeff  Da-vis.  Loving,  and  Reeves.'^  Also  tJK' 
county  of  Diuimit  which  was  detached  from  the  southern  district 
February  0,  19038 
Author's  soction, 

§     289.  —  Texas  districts  as  subdivided  into  divisions, 

The  counties  comprising  the  four  districts  above  described  are 
further  divided  into  groups  which  are  essentially  divisions  of  the 

•Fayette      was      tratisf.rred     from         "See   act  Mar.  11.   lOOi,  c,   183,  .3-2 
western  district  by  act  Jan.  21,  lOOo.    Stat.  64.  f)5. 

p.  52,  33  Stat.  G12,  U.  S.  Comp.  Stat.        sAct  Feb.  9,  1903,  c.  532,  32  Stat. 
1905,   p.   121.     Process  is  returnable    S20. 
to  Houston. 

441 


§   289  JUDICIAL  CIRCUITS  AND  JUDICIAL  DISTRICTS.      [Code  Fed. 

various  district.-^  similar  to  tliose  constituted  in  the  judicial  districts 
of  many  other  states,  although  Congress  has  not  usually  so  termed 
them.^"  Congress  has  merely  enacted  that  process  issued  against  de- 
fendants residing  in  specified  counties  shall  be  returnable  to  a  desig- 
nated place,  where  terms  of  circuit  and  district  court  are  required  to 
be  held,  and  further,  that  actions  affecting  realty  shall  be  brought 
in  the  division  where  it  is  situate.  These  places  of  holding  cir- 
cuit and  district  court  for  the  northern  district,  are  Dallas,  Fort 
Worth,  Abilene,  and  San  Angelo.  The  Dallas  division  comprises 
the  counties  of  Navarro,  Johnson,  Ellis,  Kaufman,  Dallas.  Rock- 
wall and  Hunt  as  they  existed  March  11,  1902,  when  the  present 
designation  of  divisions  was  made.  The  Fort  Worth  division  com- 
prises the  counties  of  Comanche,  Hood,  Erath,  Tarrant,  Parker. 
Palo  Pinto,  Wise,  Clay,  Jack,  Young,  Archer,  Wichita,  Wilbarger, 
Baylor,  Bailey,  Hardeman,  Cottle,  Motley,  Briscoe,  Hall,  Childress. 
Collingsworth,  Donlej^,  Armstrong,  Eaudall,  Deaf  Smith,  Oldham, 
Potter,  Carson,  Gray,  Wheeler,  Hemphill,  Lipscomb,  Ochiltree, 
Hoberts,  Hutchinson,  Hansford,  Sherman,  Moore,  Hartley,  Dallam, 
Foard,  Parmer,  Swisher,  Castro,  Lamb,  Hale,  Floyd,  Cochran,  Daw- 
son, and  Hockley  as  then  constituted.  The  Abilene  division  com- 
prises the  counties  of  Eastland,  Stephens,  Throckmorton,  Shackel- 
ford, Callahan,  Taylor,  Jones,  Haskell.  Knox,  Nolan,  Fisher,  Stone- 
wall, Kent,  Dickens,  King,  Crosby,  Garza,  Lubbock,  Gaines,  An- 
(b-ews,  Mitchell,  Scurry,  Borden,  Howard,  Martin,  Midland,  Yoak- 
um, Terry,  and  Lynn  as  then  constituted.  The  San  Angelo  divi- 
sion comprises  the  counties  of  Glasscock,  Sterling,  Coke,  Tom 
Green,  Crockett,  Schleicher,  Sutton,  Irion,  Mills,  Runnels,  Coleman, 
Concho,  Menard,  Brown  and  Upton  as  then  constituted.  In  the 
western  district  the  places  of  holding  circuit  and  district  court  are 
Avistin,  San  Antonio.  Waco.  El  Pa^^o  and  Del  Rio.  The  Austin 
division  comprises  the  counties  of  Washington,  Burleson,  William- 
son, Lee,  Bastrop.  Caldwell,  Hays.  Travis,  Blanco,  Gillespie,  Burnet, 
Llano.  Mason,  Kimble,  McCulloch,  San  Saba  and  Lampasas  as  then 
constituted.  The  San  Antonio  division  comprises  the  counties  of 
Karnes,  Dewitt,  Gonzales,  Guadalupe,  Wilson,  Atascosa,  Bexar. 
Comal,  Kendall.  Kerr,  Edwards,  Bandera,  Medina  and  Frio,  some 


lOThe  act  of  l!t02  however  refers  to  Comp.  Stat.  1905.  The  act  of  190(> 
them  as  divisions  although  it  does  creates  a  Victoria  division  of  the 
not  so  desiiffnate  tlieni.  See  act  Mar.  southern  district.  See  act  Apr.  18, 
11,  1902.  c.l8:5.  ^  10,  32  Stat.  G8,  V.  S.     1906,  c.   1636,  34  Stat.  121. 

442 


I 


Procedure]  TEXAS  DISTRICT  AS  SUBDIVIDED  INTO  DIVISIONS.  §  :iS9 

counties  being  withdrawn  June  9,  190G,  to  constitute  the  Del  Rio 
division.^ ^  The  Del  Rio  division,  created  June  9,  1906,  comprises 
the  counties  of  Uvalde,  Zavella,  Maverick,  Kinney,  Valverde,  Ter- 
lell  and  Pecos. ^^  The  Waco  division  comprises  the  counties  of 
^lilani,  Robertson,  Leon,  Limestone,  Freestone,  McLennan,  Falls, 
Bell,  Coryell,  Hamilton,  Bosque,  Somervell  and  Hill  as  then  con- 
stituted. The  El  Paso  division  comprises  the  counties  of  El  Paso, 
Presidio,  Reeves,  Loving,  Winkler,  Ward,  Ector,  Crane,  Jeff  Davis 
and  Brewster  as  then  constituted.  In  the  southern  district  the 
places  of  holding  circuit  and  district  court  are  Brownsville,  Galves- 
ton, Houston,  Laredo  and  Victoria.  The  Victoria  division  was 
•created  April  18,  1906,  and  comprises  the  counties  of  Bee,  Calhoun, 
Dewitt,  Goliad,  Jackson,  Live  Oak,  Refugio,  Aransos,  8an  Patricio 
and  Victoria.^ -^  Subject  to  this  later  Victoria  division,  the  Browns- 
ville division  comprises  the  counties  of  Cameron,  Hidalgo  and  Starr 
.as  constituted  March  11,  1902.  The  Galveston  division  comprises 
tlie  counties  of  Austin,  Fort  Bend,  Matagorda,  Wharton,  Brazoria, 
(lalveston  and  Chambers  as  then  constituted.  The  Houston  divi- 
sion comprises  the  counties  of  Lavaca,  Colorado,  Waller,  Grimes, 
Brazos,  Madison,  Trinity,  Walker,  Montgomery,  San  Jacinto,  Polk 
and  Harris  as  they  then  existed;  and  also  Fayette  county  was  addetl 
January  21,  1905.^*  The  Laredo  division  comprises  the  counties  of 
Zapata,  Webb,  Duval,  Dimmit,  Lasalle,  McMullen,  jSTueces  a.s 
they  then  existed.  In  the  eastern  district  the  places  of  holding  cir- 
<-uit  and  district  court  are  Tyler,  Beaumont,  Sherman,  Jefferson, 
Paris  and  Texarkana.  The  Tyler  division  comprises  the  counties 
•of  Shelby,  Xacogdoches,  Angelina.  Houston,  Anderson,  Cherokee, 
Panola,  Rusk,  Smith,  Henderson,  Van  Zandt,  Rains,  Gregg  and 
Wood  as  they  existed  March  11,  1902.  The  Beaumont  division  com- 
prises the  counties  of  Jefferson,  Liberty,  Orange,  Xewton,  Jasper, 
Mardin,  l^ylei-,  San  Augustine  and  Sabine  as  they  then  existed.  The 
>^lierman  division  comprises  the  counties  of  Grayson,  Cooke,  Mon- 
tague, Denton  and  Collin  as  they  then  existed.  The  Jefferson  divi- 
sion comprises  tlio  counties  of  Upshur,  Harrison,  Marion,  Cass, 
'Camp,  Hopkins  and  Morris  as  they  then  existed.  The  Paris  divi- 
sion ctomprises  tlie  counties  of  Lamar,  Fannin,  Red  River  and  Delta 


iiAct  Juiiefl.  ]90(i,  c.  3063.  34Stat.  isAct    Apr.    IS.    1000.    o.    10:10.    34 

220.  Stat.  1-21. 

i2Act  June  9,  1900.  c.  300.1.  34  Stat.  i^Act  Jan.  21.  1905,  c.  52,  33  Stat. 

22&.  (;12.  U.  S.  Comp.  Stat.  1905,  p.  121. 

443 


S   li'JO  .lUDK'lAL  ClUt'L'lTS  AM>  .ILDKIAL  DISTKICTS.      [Code   Fed. 

as  they  then  existed. ^^     IMie  Te.\ark;ina  division  eomprises  of  the 
counties  of  Bowie,  Franklin  and  Titus  as  they  existed  March  'Z, 
1903,  when  the  division  was  created. ^^ 
Author's  section. 

§  290.  —  Utah,   one   district   of   two   divisions. 

The  State  of  Utah  constitutes  hut  one  district,  l)ut  foi-  ti)o  pur- 
pose of  holding  terms  of  the  district  court  it  is  divided  into  two 
divisions,  known  as  the  northern  and  central  divisions.  The  coun- 
ties of  Weber,  Davis,  Morgan,  Eich,  Cache  and  Box  Elder  as  con- 
stituted March  2,  1897,^^  when  the  division  was  made,  comprise 
the  northern  division,  the  court  for  which  is  held  at  the  city  of 
Ogden.  All  remaining  counties  of  tlie  State  constitute  the  central 
division,  the  court  for  which  is  held  at  the  city  of  Salt  Lake. 
Author's  section. 

§  291.  — Vermont,  one  district. 

The  State  of  Vermont  constitutes  but  one  district  withotit  any 
organized   divisions  thereof,  though  court   is  held  at  Burlington, 
Windsor,  Ri;tland,  and  may  be  held  at  Montpelier.^o 
Author's  section. 

§  292.  — Virginia,  two  districts. 

The  State  of  Virginia  is  divided  into  two  districts,  which  shall  he 
called  the  eastern  and  western  districts  of  Virginia.  The  western 
district  includes  the  cotmties  of  Albemarle,  Allegliany,  Andicrst, 
Appomattox.  Augusta,  Bath,  Bedford,  Bland,  Botetcourt,  Buchanan, 
Biickingham,  Campbell,  Carroll,  Charlotte.  Clai'ke,  Craig,  Cum- 
l)erland,  Floyd,  Franklin,  Fi'cderick,  Fluvanna.  Giles,  Crayson, 
Greene,  Halifax,  Henry.  Highland.  Lee,  Madison,  Montgomery, 
Nelson,  Patrick,  Page,  Pulaski.  Pittsylvania,  Pappahannock,  Poa- 
noke,  Pockbridge.  Pockingham.  Pussell.  Scott,  Smyth,  Shenandoali, 
Tazewell,  Washington.  Wise.  Wythe  and  Warren.  The  eastern  dis- 
trict includes  the  residue  of  said  State. 
R.  S.  §  549,  U.  S.  Comp.  Stat.  1901,  p.  437. 

The  above  section  of  tlie  Revised  Statutes  necessarily  refers  to  the  terri- 
tory then  embraced  by  the  above  named  counties. 

i5See  act  Mar.  11,  1902.  c.  183.  3i        isAct  ^Nlnr.  2.  1897.  c.  .366.  29  Stat. 
Stiat.  65.  et  seq.  020.   XL   S.   Comp.   Stat.   1901,  p.  435. 

i6Act  Mar.  2,  1903,  c.  974,  32  Stat.        -'OR.   s.    §§   531,   807. 
926. 

444 


i 


I'lOiedure]  WASHINGTON— WISCONSIN.  S  295 

§  293.  — Washington,  two  districts. 

Washington  waj?  divided  into  two  districts  on  March  2,  1905.* 
All  that  portion  of  tlie  State  which  inclndes  the  counties  of  Stevens, 
Ferry.  Okanogan.  Chelan,  Spokane,  Lincoln,  Douglas,  Adams, 
Franklin.  Wallawalla,  Garfield,  Columbia,  Asotin,  Whitman, 
Yakima,  Klickitat,  Kittitas,  and  any  and  all  Indian  reservations 
in  one  or  more  of  said  counties,  and  such  other  counties  as  may  be 
created  in  that  portion  of  the  State  of  Washington  lying  east  of  the 
Cascade  Mountains,  with  the  waters  thereof,  constitute  the  eastern 
<listrict  of  Washington,  and  the  residue  of  the  State,  with  the 
waters  thereof,  constitutes  the  western  district.  The  places  of  hold- 
ing court  in  the  eastern  district  are  Spokane,  Wallawalla  and  North 
Yakima,  and  in  the  western,  Seattle  and  Tacoma. 
Author's  section. 

The  act  dividing  Washington  into  two  districts  has  been  held  sufficient 
to  establish  circuit  and  district  courts  in  the  western  district. 21 

J;  294.  — West  Virginia,  two  districts. 

Since  January  22,  1901,  West  ^'irginia  has  been  divided  into  two 
judicial  districts,  a  northern  and  a  southern.  The  northern  dis- 
trict includes  the  counties  of  Hancock,  Brooke,  Ohio,  Marshall,  Tyler, 
Pleasants,  Wood,  Wirt,  Ritchie,  Doddridge,  W^etzel,  Monongalia, 
Clarion,  Harrison,  Lewis,  Gilmer,  Calhoun,  Upshur,  Barbour,  Tay- 
lor, Preston,  Tucker,  Randolph,  Pendleton,  Hardy,  Grant,  Mineral, 
IFainpshire,  Morgan,  Berkeley  and  Jefferson  as  then  constituted, 
with  the  waters  thereof.  The  southern  district  includes  the  residue 
•of  the  State,  with  the  waters  thereof. 2 
Author's  section. 

§  295.  — Wisconsin,  two  districts. 

The  State  of  Wisconsin  is  divided  into  two  districts,  called  the 
eastern  and  western  districts  of  W'isconsin.  The  western  district 
includes  the  counties  of  Rock,  Jefferson,  Dane,  Green,  Grant,  Co- 
hmibia,  Towa,  La  Fayette,  Sauk.  Richland,  Crawford,  Vernon,  La 
Crosse,  Monroe,  Adams,  Juneau,  Buffalo,  Chippewa,  Dunn,  Clark, 
Jackson,  Eau  Claire,  Pepin,  Marathon,  W'ood,  Pierce,  Polk,  Portage, 
■Saint  Croix,  Tronifiealeau,  Douglas.  Barron,  Burnett,  Ashland  and 

lAct  Mar.  2.  100.1.  c.  (i.").  .33  Stat.  -'Act  Jan.  22.  1901,  c.  105.  31  Stat. 
«24.  U.  S.   Conip.  Stat.   100.5.  p.   12G.    7.3G,  U.   S.   Conip.   Stat.   1901.  p.  440. 

21. "^ee    Gieger    v.    Tapdnia    Rv.    141 
Km!     ]{\(). 

445 


S  296  JUDICIAL  CIRCUITS  AND  JUDICIAL  DISTRICTS.      [Code  Fed, 

Bayfield  as  tliov  existed  June  29,  18U),*  when  the  two  districts  were 
created.    The  eastern  district  includes  the  residue  of  said  State. 
Author's  section. 
The  above  is  the  substance  of  R.  S.  §  550.5 

§  296.  — Wyoming  and  Yellowstone  National  Park,  one  dis- 
trict. 
The  State  of  Wj^oming  constitutes  but  one  judicial  district  and 
since  May  7,  1894,  the  Yellowstone  National  Park,  which  is  inside 
the  territorial  boundaries  of  the  State,  but  within  the  exclusi\e 
jurisdiction  of  Congress,  is  part  of  the  district  for  jurisdictional 
purposes. "^ 

Author's  section. 

4Act  June  29,  1870,  c.  175,  16  Stat.  16-18.  26  Stat.  225,  act  May  7,  1894. 

171.  c.  72,  §  2.  28  Stat.  73,  U.  S.  Comp. 

5U.  S.  Comp.  Stat.  1901,  p.  443.  Stat.  1901    p.  1562. 
7See  act  July  10,  1890,  c.  664,  §§ 


446 


I 


CHAPTER  10. 

TERMS  OF  FEDERAL  COURTS. 

§  304.  Supreme  Court  one  term   annually. 

§  305.  Adjournments  for  want  of  a  quorum. 

§  306.  Adjournments  of  courts  to  other  places  by  reason  of  epidemic^ 

ij  307.  Less  than  quorum  may  make  preparatory  orders. 

§  308.  Court   of   Claims,   one    session   annually. 

§  309.  Circuit  court  of  appeals  at  least  one  term  annually. 

S  310.  Special  provision  for  terms  in  eighth  circuit. 

§  31L  Special  provisions  for  terms  in  fifth  and  ninth  circuits. 

§  312.  — provision  for  court  rooms. 

§  313.  Times    and    places   of    holding    circuit    and    district   court. 

§  .314.  — Alabama,    regular    terms,    adjournments. 

§  315.  — Arkansas,  at  Harrison,  Texarkana,  Fort  Snnth,  Helena,  Batesville^ 

and  Little  Rock. 

§  316.  — California,  intermediate  and   special   terms  and  adjournments. 

S  317.  — Colorado,  at  Denver,  Pueblo   and  Montrose. 

§  318.  — Connecticut  and  Delaware. 

§  319.  — Florida  at  Tallahassee,  Pensacola,  Jacksonville,  Key  West,  Tampa, 

Ocala,   and   Miami. 

§  320.  — Georgia,    regular   terms    and    adjournments. 

§  321.  — Idaho,  at  Moscow,  Boise  City  and  Pocatello. 

§  322.  — Illinois,  regular  and  special  terms. 

§  323.  — Indiana,  regular  and  special  terms  and  adjournments. 

§  324.  — Iowa,  regular  and  intermediate  terms   and  adjournments. 

§  325.  — Kansas. 

§  326.  — Kentucky,  regular  and  special  terms  and  adjournments. 

§  327.  —Louisiana,  regular  terms  and  adjournments. 

§  328.  — Elaine,  Maryland  and  Massachusetts. 

§  329.  — Michigan,  regular  and  admiralty  terms  and  adjournments. 

§  330.  —Minnesota. 

§  331.  — Mississippi,  regular  and  special   terms. 

*i  332.  — ^lissouri,  regular   and   adjourned   terms. 

S  333.  — Montana  and   Nebraska. 

§  334.  — Nevada  and  New  Hampshire. 

§  335.  — New  Jersey  at  Trenton  and  Newark. 

§  336.  — New  York,  circuit  court  terms. 

S  337.  —New  York,  district  court  terms. 

§  338.  — North  Carolina,  regular  and  special  terms. 

§  339.  —North   Dakota. 

447 


§   304  TERMS  OF   FEDERAL  COURTS.  [Code    Fed. 

§  340.  — Ohio,  regular  terms  and  adjoiirnnieiits. 

S  341.  — Oklahoma    and    Oregon. 

55  342.  — Pennsylvania,  regular  and  special  terms  and  adjournments. 

§  343.  — Rhode  Island  at  Providence  and  Newport. 

§  344.  —South  Carolina. 

S  345.  —South  Dakota. 

§  346.  — Tennessee,  regular,  intermediate  and  special  terms  and  adjourn 
ments. 

§  347.  —Texas. 

§  348.  —Utah,  at  Ogden  and  Salt  Lake. 

!;  349.  — Vermont. 

§  350.  — Virginia,  regular  and  special  terms. 

§  351.  — Washington. 

§  352.  —West  Virginia. 

§  353.  — Wisconsin,  regular  and  special  terms. 

§  354.  — Wyoming,  regular  and  additional  terms. 

§  355.  General  provision  as  to  special  circuit  court  sessions. 

§  356.  Business  that  may  be  transacted  at  special  circuit  court  sessions. 

§  357.  Special  circuit  court  sessions  for  criminal  cases. 

§  SSS.  Special  circuit  criminal  sessions  near  place  of  alleged  offense. 

§  359.  General  provision  as  to  special  district  court  terms. 

§  3O0.  Monthly  adjournments  of  district  court  for  criminal  causes. 

§  3'Gl.  Intermediate  district  court  terms  in  California,  Iowa,  and  Tennes- 
see. 

§  362.  Adjournment  of  circuit  court  sessions  in  absence  of  judges. 

§  363.  Adjournment  of  circuit  court  by  judge's  written  order. 

§  364.  Adjournment   of  district  court   for  non-attendance  of  judge. 

§  365.  Circuit  court  always  open  in  equity  for  certain  purposes. 

§  366.  — always  open  for  certain  commerce  proceedings. 

$  367.  — always  open  for  appeals   from   general   appraisers. 

§  368.  District  court  always  open  in  admiralty  or  equity  for  certain  pur- 
poses. 

§  369.  Alteration  of  terms  not  to  affect  suit  or  process. 

^  370.  Causes  not  discontinued  by  new  term. 

§  304.     Supreme  Court,  one  term  annually. 

The  Supreme  Court  shall  hold,  at  the  seat  of  government,  one 
term  annually,  commencing"  on  the  second  ]\[onday  in  October,  and 
such  adjourned  or  special  terms  as  it  may  find  necessary  for  the  dis- 
patch of  business ;  and  suits,  proceedings,  recognizances,  and  pro- 
cesses pending  in  or  returnable  to  said  court  shall  be  tried,  heard, 
and  proceeded  with  as  if  the  time  of  holding  said  sessions  had  not 
been  hereby  altered. 

R.  S.  §  684,  U.  S.  Comp.  Stat.  1901.  p.  563. 

448 


Procedure]  TKRMS    OF    FEDERAL    COURTS.  §   307 

§  305.     Adjournments  for  want  of  a  quorum. 

If,  at  any  session  of  the  Supreme  Court,  a  quorum  does  not  attend 
on  the  day  appointed  for  holding  it,  the  justices  who  do  attend  may 
adjourn  the  court  from  day  to  day  for  twenty  days  after  said  ap- 
pointed time,  unless  there  be  sooner  a  quorum.  If  a  quorum  does 
not  attend  within  said  twenty  days,  the  business  of  the  court  shall 
be  continued  over  till  the  next  appointed  session;  and  if,  during  a 
term,  after  a  quorum  has  assembled,  less  than  that  number  attend  on 
any  day,  the  justices  attending  may  adjourn  the  court  from  day  to 
•day  until  there  is  a  quorum,  or  may  adjourn  without  day. 
R.  S.  §  685,  U.  S.  Comp.  Stat.  1901,  p.  563. 

A  minority  of  the  court  may  constitute  a  majority  of  a  quorum  and  render 
a  binding  decision.  Tliere  is  no  provision,  as  in  the  case  of  the  Court  of 
Claims,  requiring  that  a  majority  of  the  entire  court  concur  in  a  decision. i 

§  306.     Adjournments   of   courts   to   other  places   by   reason   of 
epidemic. 

Whenever,  in  the  opinion  of  the  Chief  Justice,  or,  in  case  of  his 
death,  or  inability,  of  tlie  senior  associate  justice  of  the  Supreme 
Court,  a  contagious  or  epidemic  sickness  shall  render  it  hazardous 
to  hold  the  next  stated  session  of  the  court  at  the  seat  of  govern- 
ment, the  chief  or  such  associate  justice  may  issue  his  order  to  the 
marshal  of  the  Supreme  Court,  directing  him  to  adjourn  the  next 
session  of  the  court  to  such  other  place  as  such  justice  deems  con- 
venient. The  marshal  shall  thereupon  adjourn  the  court,  by  mak- 
ing publication  thereof  in  one  or  more  public  papers  printed  at  the 
seat  of  government  from  the  time  he  shall  receive  such  order  until 
the  time  by  law  prescribed  for  commencing  the  session.  The  several 
circuit  and  district  judges  shall,  respectively,  under  the  same  cir- 
cumstances, have  the  same  power,  by  the  same  mean.-,  to  direct  ad- 
journments of  the  several  circuit  and  district  courts  to  some  con- 
venient place  within  their  districts  respectively. 
R.  S.  §  4799,  U.  S.  Comp.  Stat.  1901,  p.  3319. 

§  307.     Less  than  quorum  may  make  preparatory  orders. 

The  justices  attending  at  any  term  when  less  than  a  quorum  is 
])resent,  may,  within  the  twenty  days  mentioned  in  the  preceding 
section,  make  all  necessary  orders  touching  any  suit,  proceeding,  or 

lAnte,  §  228. 
Fed.  Proc— 29.  449 


§   MS  TERMS    OF     FEDERAL     COURTS.  [CoJe   Foci. 

process,  depending  in  or  retui-ned  to  the  court,  preparatory  to  the 
hearing,  trial,  or  decision  thereof. 

R.  S.  §  G86,  U.  S.  Comp.  Stat.  1901,  p.  5G4. 

§  308.     Court  of  Claims,  one  session  annually. 

The  Court  of  Claiuis  shall  hold  one  annual  session,  at  the  city  of 
\Yasliington,  beginning  on  the  first  Monday  in  December,  and  con- 
tinuing as  long  as  may  be  necessary  for  the  ])rompt  disposition  of 
the  business  of  the  court. 

Part  of  R.  S.  §  1052,  U.  S.  Comp.  Stat.  1001,  p.  7.30. 

The  omitted  portion  of  the  section  provides  as  to  a  (piorum  of  the 
court.  3 

§  309,     Circuit  courts  of  appeals,  at  least  one  term  annually, 

A  term  shall  be  held  annually  by  the  circuit  court  of  appeals  in 
the  several  judicial  circuits  at  the  following  places:  In  the  first 
circuit,  in  the  city  of  Boston;  in  the  second  circuit,  in  the  city  of 
Xew  York;  in  the  third  circuit,  in  the  city  of  Philadelphia;  in  the 
fourth  cij'cuit,  in  the  city  of  Eichmond ;  in  the  fifth  circuit,  in  the 
city  of  'New  Orleans;^  in  the  sixth  circuit,  in  the  city  of  Cincin- 
nati ;  in  the  seventh  circuit,  in  the  city  of  Chicago ;  in  the  eighth 
circuit,  in  the  city  of  Saint  Louis  ;^  in  the  ninth  circuit,  in  the  city 
of  San  Francisco  •.''^  and  in  such  other  places  in  each  of  the  above 
circuits  as  said  court  may  from  time  to  time  designate. 
The  .  .  .  terms  of  said  courts  shall  be  held  .  ,  .  at  such 
times  as  may  be  fixed  by  said  courts. 

Part  of  §  3,  act  Mar.  3,  1891,  c.  517.  26  Stat.  827,  U.  S.  Comp.  Stat.  1901. 
p.  548. 

The  rules  adopted  pursuant  to  the  foregoing  in  the  different  circuits  as 
to  terms  of  court  vary,  and  should  be  consulted.  In  some  circuits  there 
is  but  one  term,  continuing  throughout  the  year,  and  in  others  two  or  more 
are  provided.  In  some  circuits  an  additional  terra  is  appointed  for  a  city 
other  tlian  that  above  specified, 

§  310,     Special  provision  for  terms  in  eighth  circuit. 

The  circuit  court  of  appeals  of  the  eighth  judicial  circuit  of  tlie 
United  States  is  hereby  authorized  and  required  to  hold  one  term 

3Ante,  §  228.  eSee  also  post,   §  310. 

5See  also  post,  §  311.  "See  also  post,   §  311. 

450 


ii 


Procedure]  SPECIAL   PROVISIONS    FOR   TERMS.  §   311 

of  said  court  annually  in  the  city  of  Denver,  in  the  State  of  Colo- 
rado, or  in  the  city  of  Cheyenne,  in  the  State  of  Wyoming,  on  the 
first  Monday  in  September  in  eax^h  year,  and  is  hereby  authorized 
and  required  to  hold  one  term  of  said  court  annually  in  the  city  of 
Saint  Paul  and  State  of  Minnesota  on  the  first  jMonday  in  May 
of  each  year.  ,  ,  .  All  appeals,  writs  of  error,  and  other  ap- 
pellate proceedings  which  may  be  taken  or  prosecuted  from  the  cir- 
cuit or  district  courts  of  the  United  States  in  the  States  of  Colo- 
rado, Utah  and  Wyoming,  and  the  supreme  court  of  the  Territory 
of  New  Mexico,  to  the  court  of  appeals  of  the  eighth  judicial  cir- 
cuit, shall  be  heard  and  disposed  of  by  the  said  court  of  appeals  at 
the  term  thereof  hereinbefore  provided  for  so  to  be  held  either  at 
the  city  of  Denver,  in  the  State  of  Colorado,  or  at  the  city  of 
Cheyenne,  in  the  State  of  Wyoming,  except  that  any  case  arising 
from  said  States  and  Territory  may,  by  consent  of  all  the  parties 
thereto,  be  heard  and  decided  at  a  term  of  said  court  other  than  the 
one  to  be  held  in  the  city  of  Denver,  in  the  State  of  Colorado,  or  in 
the  city  of  Cheyenne,  in  the  State  of  Wyoming.  .  .  .  This  act 
shall  not  operate  to  prevent  the  said  court  from  holding  other  terms 
in  the  aforesaid  places  or  in  such  other  places  in  the  said  eighth 
judicial  circuit  as  said  court  may  from  time  to  time  designate. 

§§  1-3  of  act  June  9,  1902,  c.  1071,  32  Stat.  329,  U.  S.  Comp.  Stat. 

1905.  p.  146. 

The  3rd  rule  of  the  circuit  court  of  appeals  of  the  eighth  circuit  set  forth 
in  the  appendix,  makes  provision  as  to  terms. 

§  311.     Special  provisions  for  terms  in  fifth  and  ninth  circuits. 

Since  May  28,  1896,  terms  of  the  circuit  court  of  appeals  for  the 
ninth  circuit  must  be  held  at  two  other  places  than  San  Francisco 
witliin  that  circuit.^  More  recent  enactments  have  required  terms 
)f  court  within  the  fifth  circuit  at  Atlanta,  Georgia,  on  the  first 
Monday  in  October,  at  Forth  Worth,  Texas,  on  the  first  Monday 
in  Xovenil)er,  and  at  Montgomery,  Alabama,  on  the  first  Monday  in 
Septenihcr,  as  well  as  at  N"ew  Orleans.  Appellate  proceedings  from 
the  circuit  and  district  conrts  of  Georgia,  Texas  and  Alabama  must 
be  lieard  at  those  terms  respectively,  but  the  court  may  hear  "appeals 
or  writs  of  error  wherever  the  said  court  shall  sit,  in  cases  of  injunc- 
tions and  in  all  other  cases  which  under  the  statutes  and  the  rules, 

9 Act  M;iv  2S.  189(5.  c.  252.  29  Stat. 
177,  U.  S.  Com.  Stat.  1901,  p.  556. 

451 


§   312  TERMS   OF    FEDERAL   COURTS.  [Code   Fed 

or  in  the  opinion  of  the  court,  are  entitled  to  be  brought  to  a  speedy 
hearing,"  and  these  enactments  "shall  not  operate  to  prevent  the 
said  court  from  holding  other  terms"  in  Atlanta,  Fort  Worth  or 
Montgomery,  "or  in  such  other  places  in  the  'said  fifth  judicial  cir- 
cuit as  said  court  may  from  time  to  time  designate."^ *^ 

Author's  section. 

I 

Rule  3,  of  the  fifth  circuit  set  forth  in  the  appendix,  makes  additional 
provisions  as  to  terms  therein,  and  should  be  consulted.  See  also  rule  36, 
an  the  ninth  circuit. 

§  312.  —  provision  for  court  rooms. 

The  marshals  of  the  several  districts  in  which  said  circuit  court 
of  appeals  may  be  held  shall,  under  the  direction  of  the  Attorney 
General  of  the  United  States,  and  with  his  approval,  provide  such 
rooms  in  the  public  buildings  of  the  United  States  as  may  be  nec- 
■essary,  and  pay  all  incidental  expenses  of  said  court,  including 
criers,  bailiffs,  and  messengers :  Providjed,  however,  that  in  case 
proper  rooms  cannot  be  provided  in  such  buildings,  then  the  said 
marshals,  with  the  approval  of  the  Attorney  General  of  the  United 
States,  may,  from  time  to  time,  lease  such  rooms  as  may  be  necessary 
for  such  courts. 

Part  of  §  9,  act  Mar.  3,  1891,  c.  517,  26  Stat.  829,  U.  S.  Conip.  Stat. 
1901,  p.  552. 

§  313.     Times  and  places  of  holding^  circuit  and  district  court. 

The  revised  statutes  treat  of  the  terms  of  circuit  and  district 
courts  in  separate  chapters.  So  many  of  the  provisions  have  been 
changed  by  later  laws  and  these  laws  in  turn  have  been  so  frequently 
changed,  and  doubtless  will  be  hereafter,  that  it  seems  useless  to 
try  to  reproduce  the  exact  phraseology  of  the  enactments  here.  It 
also  seems  more  convenient  to  state  the  terms  of  both  circuit  and 

10 As  to  Atlanta  see  act  June  30.  Stat.  756.  Montgomerv:  See  act 
1902,  c.  1333,  32  Stat.  548.  Fort  Jan.  30.  1903,  c.  335,  §  5,  32  Stat.  784, 
Worth:     See  act  Dec.  1890,  c.  4,  32    U.  S.  Comp.  Stat.  1905,  p.  150. 

452 


Procedure]  ALABAMA    TERMS.  S   314 

district  courts  for  a  State  in  the  same  section,  as  they  are  so  often 
directed  to  commence  at  the  same  time. 
Author's  section. 

A  term  of  the  circuit   court  may  extend  from  the  beginning  of  one  to 
the  o|.ening  of  the  next  succeeding  term,  unless  sooner  adjourned.12 

§  314.  —  Alabama,  regular  terms,  adjournments. 

In  the  northern  district  of  Alabama,  terms  of  the  circuit  and 
district  courts  are  held  at  Anniston,  for  the  eastern  division  thereof, 
on  the  first  Mondays  in  May  and  November  ;i*  at  Tuscaloosa  for 
the  western  division,  on  the  first  Tuesdays  in  January  and  June ;'  '^ 
at  Huntsville  for  the  northern  division  on  the  first  Monday  in  April 
and  second  Monday  in  October  ;i®  and  for  the  southern  division  in 
Birminoham,  twice  in  each  year,  on  the  first  Llondays  in  ]\Iarch 
and  September,  being  required  to  remain  in  open  session  for  the 
transaction  of  business  at  least  six  months  in  each  calendar  year.^'^ 
In  the  middle  district  terms  are  held  at  Montgomery,  first  ]\Ionday 
in  May  and  November.^*  In  the  southern  district,  southern  divi- 
sion, they  are  held  at  ]\Iobile  on  the  first  ^londay  in  ]\Iay  and  the 
fourth  Monday  in  Xovember.^^  In  the  northern  division  of  the 
southern  district  they  are  held  at  Selma  on  the  first  JMonday  in  ]\Iay 
and  November.2o  "If  the  judge  of  any  district  court  in  Alabama^ 
.  .  .  is  not  present  at  the  time  for  opening  the  court,  the  clerk 
may  open  and  adjourn  the  court  from  day  to  day  for  four  days; 
and  if  the  judge  does  not  appear  by  two  o'clock,  afternoon  of  the 
fourth  day,  the  clerk  shall  adjourn  the  court  to  the  next  regular 
term."2  But  this  section  is  subject  to  the  general  provision  as  to 
adjournment  for  non-attendance  of  the  judge  stated  elsewhere.^ 
Author's  section. 

i2East  Tennessee,  etc.  Co.  v.  Wig-        isAct    June    26.    1890,    c.    631.    26 

gin.  68  Fed.  446,  15  C.  C.  A.  510.  Stat.  680,  U.  S.  Comp.  Stat.  1901.  p. 

i^Act  Feb.  16,  1903.  c.  554,  .32  Stat.  319. 
832.  20Act  Mar.   3,   1905,   §   2,   c.    1419, 

15 Act  Mar.   3,   1905.    §   8.  c.    1419,  33  Stat.  988.  U.  S.  Comp.  Stat.  1905, 

33  _Stat.  958,  U.  S.  Comp.  Stat.  1905,  p.  77. 
p.  79.  iTlie  section  enumerates  also  Cub.- 

l6Act  June  22,  1874.  cited  infra.  fornia,  Georgia,  Indiana.  Iowa,  Ken- 

i7Act   Apr.    14,    1906,    c.    1625,    34  tucky,  North  Carolina,  Tennessee  and 

Stat.  114.  West  Virginia. 

18 Act    -June    22,    1874.    c.    401,    18        2R.    S.    §   584,   U.    S.   Comp.    Stat. 

Stat.  125,  U.  S.  Comp.  Stat.  1901,  p.  1901,  p.  478. 
317.  3See  post,  §  364. 

453 


§   315  TERMS   OF   FEDERAL    COURTS.  [Code   Fed. 

§  315.  —  Arkansas,  at  Harrison,  Texarkana,  Fort  Smith,  Helena, 
Batesville  and  Little  Rock. 

In  the  western  district  of  Arkansas  terms  of  circuit  and  district 
»:-ourts  are  held  at  Harrison,  for  the  Harrison  division,  on  the  sec- 
ond Mondays  in  April  and  October  ;'5  at  Texarkana,  for  the  Tex- 
arkana division  thereof,  on  the  second  Mondays  in  May  and  No- 
vember; and  at  Fort  Smith,  for  the  Fort  Smith  division,  on  the 
second  Mondays  in  January  and  June.^  In  the  eastern  district 
terms  of  circuit  and  district  courts  are  held  at  Helena,  for  the  east- 
ern division  thereof,  on  the  second  Monday  in  March  and  first  JMon- 
day  in  October;'^  at  Batesville,  for  the  northern  division,  on  the 
fourth  Monday  in  May  and  the  second  Monday  in  December ;  and  at 
Little  Eock,  for  the  western  division  thereof,  on  the  first  Monday 
in  A\ml  and  the  third  Monday  in  October.^ 
Author's  section. 

§  316.  —  California,    intermediate    and    special    terms    and    ad- 
journments. 

In  the  northern  district  terms  of  circuit  and  district  courts  are 
held  at  San  Francisco,  on  the  first  Monday  in  March  and  the  sec- 
ond Monday  in  July,  and  the  first  Monday  in  November  ;9  and  at 
Eureka  on  the  third  Monday  in  July  and  continuing  as  long  as  the 
lousiness  may  require.^ *^  In  the  southern  district  terms  of  circuit 
and  district  courts  are  held  at  Fresno,  for  the  northern  division 
thereof,  on  the  first  Monday  in  May  and  the  second  Monday  in  No- 
vember; and  at  Los  x4.ngeles,  for  the  southern  division  thereof,  on 
the  second  Monday  in  January  and  the  second  Monday  in  July.^^ 
The  district  courts  in  California  are  required  to  hold  intermediate 
terms  when  necessary  where  the  regular  term  has  not  been  held.^^ 
The  provision  of  E.  S.  §  584  for  adjournments  of  district  court  by 
the  clerk  in  Alabama,  applies  also  to  California.^ ^  In  the  circuit 
court  the  "circuit  justice  or  circuit  judge  may  appoint  special  sessions 
of  the  circuit  courts,  to  be  held  at  the  places  where  the  regular  ses- 
sions are  held,  by  an  order  under  his  hand  and  seal  directed  to  the 

5Act  Mar.  18.  1902,  c.  222.  32  Stat.  9Act  May  25,  189G,  c.  238,  29  Stat. 

72.  135,  U.  S.  Conip.  Stat.  1901.  p.  326. 

6Act  Feb.  20.  1897.  c.  269,  29  Stat.  loAct   June   29,    1906,   c.   3626,   34 

.591,  U.   S.   Coinp.  Stat.   1901,  p.  322.  Stat.  631. 

TAot  Feb.  3,  1903,  c.  400,  32  Stat.  nAct  May  29,  1900,  c.  594.  31  Stat. 

795.  219,  U.  S.  Comp.  Stat.  1901,  p.  327. 

sAct  Jan.  16.  1901,  c.  92,  31   Stai.  12 Ante.    §    314. 

733,  U.  S.  Comp.  Stat.  190i,  p.  323.  isAnte.    §    314. 

454 


Procedure]  COLORADO— FLORIDA.  §  319 

marshal  and  clerk  of  such  court,  at  least  fifteen  days  before  the  time 
fixed  for  the  commencement  of  such  special  sessions.  Said  order 
is  required  to  be  published  by  the  marshal  in  one  or  more  of  the 
newspapers  within  the  district  where  such  sessions  are  to  be  held."^^ 
Author's  section. 

§  317.  —  Colorado,  at  Denver,  Pueblo  and  Montrose. 

In  the  district  of  Colorado  terms  of  the  circuit  and  district  courts 
are  held  at  Denver  on  the  first  Tuesdays  in  May  and  in  Xoveml)er 
in  every  year;  at  Pueblo  on  the  first  Tuesday  in  April  annually, 
and  at  Montrose  on  the  second  Tuesday  in  September  annually: 
"and  such  cases  shall  be  heard  in  said  courts  as  the  law  or  the  rules 
of  said  court  may  now  or  hereafter  provide."^^ 
Author's  section. 

§  318.  —  Connecticut  and  Delaware. 

In  the  district  of  Connecticut  terms  of  the  district  court  are 
held  at  Hartford  on  the  fourth  Tuesday  in  May  and  the  first  Tues- 
day of  December  ;i8  at  New  Haven  on  the  fourth  Tuesday  of  Foli- 
ruary  and  of  August.  ^^  Terms  of  the  circuit  court  are  held  at 
Hartford  on  the  second  Tuesday  of  October  ;2*^  and  at  New  Haven 
on  the  fourth  Tuesday  in  April.^i  In  Delaware  terms  of  the  dis- 
trict court  are  held  at  Wilmington  on  the  second  Tuesday  of  Janu- 
ary, April,  June  and  September  ;2  and  of  the  circuit  court  at  Wil- 
mington on  the  third  Tuesdays  in  June  and  October.^ 
Author's  section. 

§  319.  —  Florida    at    Tallahassee.    Pensacola.    Jacksonville,    Key 
West,  Tampa,  Ocala,  and  Miami. 

In  the  nortliern  district  terms  of  the  circuit  and  district  courts 
are  held  at  Tallahassee  on  the  first  Monday  in  February,  and  at 
Pensacola  on  tlie  first  Monday  in  IMarch.^  In  the  southern  district 
terms  of  the  circuit  and  district  courts  are  held  at  IMiami  on  the 
fourth  Monday  in  April  :•"'  at  Jacksonville,  the  first  Monday  in  Do- 

14R.   S.    §   004.   V.   S.   Comp.   Stat.  20Act  June  10.  ISflfi.  c.  ;in4. -20  Stat. 

1901,  p.  54.3.  317,   U.   S.  Conip.  Stat.   inOl,   p.  541. 

iSAct  Feb.  16.  1003,  c.  555.  32  Stat.  2iR.  S.  §  f)oS. 

833.  2R.  s.   §   5r2. 

18R.   S.   §    .572.   act    June  30.   1879.  sR.   S.    §   6.58. 

c.  49,  21   Stat.  41.  U.  S.  Comp.  Stat.  sR.  s.  §§  572.  658. 

1901,    p.    475.  6Act  June  0.  1906.  c.  .3062.  .34  Stat. 

19R.  S.   §  572.  226. 

455 


§  320  TERMS    OF    FEDERAL    COURTS.  [Code   KoJ. 

cember;'^  a  Key  West,  the  first  Monday  in  May  and  November;* 
at  Tampa,  the  second  Monday  in  February  f  at  Ocala  on  the  third 
Monday  in  January  ;^*^  and  at  Fernandina  on  the  first  Monday  in 
April. ^^  The  district  court  for  the  southern  district  is  required  to 
be  open  at  all  times  for  the  purpose  of  hearing  and  deciding  ad- 
miralty cases. ^2 
Author's  section. 

§  320.  —  Georgia,  regular  terms  and  adjournments. 

Terms  of  the  circuit  and  district  courts  in  the  northern  district 
are  held  at  Atlanta,  for  the  northern  division  thereof,  on  the  sec- 
ond Monday  in  March  and  the  first  Monday  in  October;^  at  Colum- 
bus, for  the  western  division,  on  the  first  Mondays  in  May  and 
December,  continuing  as  long  as  necessary  f  at  Athens,  for  the  east- 
ern division,  on  the  fourth  Monday  in  April  and  first  Monday  in 
November  ;3  at  Eome,  for  the  northwestern  division,  on  the  third 
Mondays  in  May  and  November.^  In  the  southern  district  of 
Georgia  terms  of  the  circuit  and  district  courts  are  held  at  ]\Iacon, 
for  the  western  division,  on  the  first  Mondays  in  May  and  October  f 
at  Albany,  for  the  Albany  division,  on  the  third  Mondays  in  June 
and  December;^  at  Augusta,  for  the  northeastern  division,  on  the 
first  Monday  in  April  and  the  third  Monday  in  November  ;^  at 
Savannah,  for  the  eastern  division,  the  district  court  terms  com- 
mencing on  the  second  Tuesdays  in  February,  May,  August  and 
November ,8  and  the  circuit  court  terms  on  the  second  Monday  in 
April  and  the  Thursday  after  the  first  Monday  in  November;^  at 
Valdosta,  for  the  southwestern  division,  both  circuit  and  district 
court  terms  commencing  on  the  second  Mondays  in  June  and  De- 

7Act  July  23,  1894,  c.  149,  28  Stat.        2Act  Aug.  27,  1894.  c.  341.  28  Stat. 

117,  U.  S.  "Comp.   Stat.   1901,  p.  332.  504,  U.   S.   Comp.  Stat.   1901,   p.   3.39. 

8R.  S.  §§  572.  658.  3 Act  Apr.  7.  1904,  c.  940.  33  Stat. 

9Act  June  30,  1886.  e.  581,  24  Stat.  161,  U.  S.  Comp.  Stat.  1905,  p.  86. 
106,  U.  S.  Comp.  Sta,t.   1901,  p.  332.        4Act  Apr.  12,  1900,  c.  185.  31  Stat. 

loAct  May  18,  1900,  c.  482.  31  Stat.  73^  jj   c,.  Comp.  Sta^t.  1901.  p.  339. 
180,  U.  S.  Comp.   Stat.   1901,  p.  333.         ^ActJan.  29,  1880.  c.   17,  21  Stat. 

iiAct  Fe.b.  18,  1905.  c.  584,  33  Stat.  63,.  u.  S.  Comp.  Stat.  1901.  p.  334. 
719,  U.   S.   Comp.   Stat.    1905,  p.   83.        6Aot  Mar.  3.  190.5,  c.  1431,  33  Stat. 

12R.   S.    §   575,  U.   S.   Comp.   Stat.  099.  I'.  S.  Comp.  Stat.  1905,  p.  87,  as 

1901,  p.  476.     See  also  post,  §  368.  aiiiended  act  June  28,  1906,  c.  3577,  34 

lAct  June  20.  1884,  c.  100,  23  Stat.  Stat.  547. 
50,  act  Feb.  23.  1889.  c.  205.  25  Stat.        ^Feb.  15,  1889,  c.  1G8,  25  Stat.  671, 

690,  U.  S.  Comp.  Stat.  1901,  pp.  336,  U.  S.  Comp.  Stat.  1901,  p.  337. 
338.  SR.  S.  §  572. 

9R.  S.  §  658. 
4.56 


I 


Procedure]  IDAHO— ILLINOIS.  S  322- 

cember.i^    The  provision  of  E.  S.  §  584,  as  to  adjournment  of  dis- 
trict court  terms  by  the  clerk  quoted  in  the  section  dealing  with 
Alabama,  apply  also  to  Georgia.^^ 
Author's  section. 

§  321.  — Idaho,  at  Moscow,  Boise  City  and  Pocatello. 

In  the  district  of  Idaho,  terms  of  circuit  and  district  courts  are 
held  at  Moscow,  for  the  northern  division  on  the  second  Monday 
in  May  and  the  fourth  Monday  in  October;  at  Boise  City,  for  the 
central  division,  on  the  second  IMondays  in  March  and  September ; 
and  at  Pocatello,  for  the  southern  division,  on  the  second  Monday 
in  April  and  the  first  Monday  in  October.^^ 
Author's  section. 

§  322.  — Illinois,  regular  and  special  terms. 

In  tlie  northern  district  terms  of  the  circuit  and  district  courts 
are  held  at  Chicago,  for  the  eastern  division  thereof,  on  tlie  first 
Monday  in  July  and  the  third  Monday  in  December  ;^5  and  at 
Freeport,  for  the  western  division,  on  the  third  Mondays  in  April 
and  October. 1^  In  the  southern  district  terms  are  held  at  Peoria,, 
for  the  northern  division,  on  the  third  Mondays  in  April  and  Octo- 
ber ;i'^  and  at  Springfield,  for  the  southern  division,  on  the  first 
Mondays  in  January  and  June  ;^^  at  Quincy  on  the  first  Monday 
in  September.!^  In  the  eastern  district  terms  are  held  at  Danville 
on  the  first  Mondays  of  March  and  September ;  at  Cairo  on  the  first 
Mondays  of  April  and  October;  and  at  East  St.  Louis  on  the  first 
Mondays  of  May  and  jSTovember.^o  The  judges  of  the  circuit  and 
district  courts  in  the  Illinois  districts  are  expressly  authorized  to 
appoint  and  hold  additional  special  terms  "whenever  deemed  neces- 
sary by  the  judges  of  said  courts,  respectively,  and  the  time  or 
times  of  holding  such  special  sessions  of  said  courts  shall  be  fixed 
•by  the  judges  of  said  courts,  respectively,  either  by  rule  of  such 

lOAct   June   30.    1002,   c.    13.38.    32        i^Act  Mar.  3,   1005.   §   10.  c.   1427. 

Stat.    550.    U.    S.    Conip.    Stat.    1003,  33  Stat.  004.  V.  S.  Comp.  Stat.  1005. 

p.   87.  p.  03. 

11  Ante.  §  314.  isR.  S.   §§  572.  658.     See  also  act 

i3Aet  Julv  5.  1802.  c.  145.  27  Stat.  Mar.  3.  1905.  §  10  supra. 
73.  V.  S.  Comp.  Stat.  1001.  p.  344.  i^Act  Aug.  8.  1888.  c.  788,  25  Stat. 

15R.  S.  §§  572.  658.  act  Mar.  3.  1005.  387,  U.  S.  Comp.  Stat.  1001.  p.  .346. 
§  5.  c.  1427.  33  Stat.  903,  U.  S.  Comp.        20Act  Mar.   3.   1005,   §  16.  c.   1427, 

Stat.   1005,   p.   00.  33  Stat.  995,  U.  S.  Comp.  Stat.  100.5, 

isAct    :\Iar.    3.    1905,    §   5,   c.   1427,  p.  94. 
cited  in  preceding  note. 

457 


§   323  TERMS   OF    FEDERAL    COURTS.  [Code   Fed. 

courts  or  by  special  or  general  order  of    such  courts  entered  of  rec- 
ord in  said  courts."^ 
Author's  section. 

§  323.  —  Indiana,  regular  and  special  terms  and  adjournments. 

In  the  district  of  Indiana  terms  of  the  circuit  and  district  courts 
are  held  at  Indianapolis  on  the  first  Tuesday  in  May  and  Xoveniber; 
at  New  Albany  on  the  first  Mondays  in  January  and  July;  at  Evaus- 
ville  on  the  first  Mondays  in  April  and  October;  at  Fort  Wayne  on 
the  second  Tuesdays  in  June  and  December,  and  at  Hainmoiid  on 
the  third  Tuesdays  in  April  and  October,  continuing  as  long  as 
business  requires.^  The  circuit  and  district  judges  are  also  ex- 
pressly authorized  to  hold  special  terms  when  necessary.-*  District 
court  terms  are  not  limited  to  any  particular  numljer  of  days,  nor  is 
it  necessary  to  adjourn  because  a  term  elsewhere  intervenes,  but  the 
latter  may  be  adjourned  over  until  the  business  is  concluded."'  ]\Iore- 
over,  "the  intervention  of  a  term  of  the  district  court  at  anotlier 
place,  or  of  a  circuit  court,  shall  not  preclude  the  power  to  adjourn 
over  to  a  future  day."^  The  provisions  of  E.  S.  §  584,  as  to  adjourn- 
ments by  the  clerk  in  the  district  judge's  absence,  quoted  in  the  sec- 
tion dealing  with  Alabama  terms,^  apply  also  to  Indiana,  subject  to 
the  general  enactment  regarding  adjournments  in  the  judge's  ab- 
sence,^ and  subject  to  the  further  provision  of  R.  S.  §  585,  that  "in 
the  districts  of  Indiana  and  Kentucky  the  district  judge,  in  the 
case  provided  in  the  preceding  section,  [i.  e.,  of  adjournments  by 
the  clerk]  may,  by  a  written  order  to  the  clerk  within  the  first  three 
days  of  his  term,  adjourn  the  district  court  to  a  future  day  within 
thirty  days  of  the  first  day.  The  clerk  shall  give  notice  of  such  ad- 
journment by  posting  a  copy  of  said  order  on  the  front  door  of  the 
courthouse  where  the  court  is  to  be  held."**     In  addition,  E.  S.  § 

1  Act  Mar.  3,  1905,  c.  1427,  §  21.  33  Stat.    IflOl.    p.    544.     Also    act    July 

Stat.    996,    U.    S.    Conip.   Stat.    1905,  2,    1890.   c.   651,   26   Stat.   212.  U.   S. 

p.  96.  Comp.   Stat.    1901,   p.   .'547. 

3As  to  Evansville,  see  act  June  23.  SR.    s.    §    577.   U.   S.    Comp.    Stat. 

1874,    c.    463,    18    Stat.    251.     As    to  1901.   p.    476. 

Fort  Wayne,  see  act  Mar.  3,  1881,  c.  6R.    s.    §    5S0,   U.   S.   Comp.    Stat. 

1.54,  21    Stat.  511.     As  to  Hammond,  1901.   p.   477. 

see  act  Feb.  14,  1899.  c.  155.  30  Stat.  7Ante,  §  314. 

8.36.    As  to  Indianapolis  and  New  Al-  sPost.    §    364. 

bany.  see  R.  S.  §§  572.  658.     See  U.  3R.    R.    §    585,   U.   S.   Comp.   Stat. 

S.   Comp.   Stat.    1901.   p.   347.  1901,  p.  478. 

♦  Consult  R.  S.  §  665,  U.  S.  Comp. 

458 


Procedure]  IOWA   TERMS  §   324 

579  gives  district  judges  in  Indiana  power  to  adjourn  court  from 
time  to  time  to  meet  the  necessities  and  convenience  of  business.^" 
Author's  section. 

§  324.  —  Iowa,  regular  and  intermediate  terms  and  adjournments. 

In  the  northern  district  of  Iowa  terms  of  circuit  and  district 
courts  are  held  at  Dubuque,  for  the  eastern  division,  on  the  fourth 
Tuesday  in  April  and  the  first  Tuesday  in  December;  at  Cedar 
Eapids,  for  the  Cedar  Eapids  division,  on  the  first  Tuesdav  in  April 
and  the  second  Tuesday  in  September;  at  Fort  Dodge,  for  the  cen- 
tral division,  on  the  second  Tuesdays  in  June  and  Xovember;  and 
at  Sioux  City,  for  the  western  division,  on  the  fourth  Tuesday  in 
May  and  the  first  Tuesday  in  October.^  ^  jj^  the  southern  district 
terms  of  circuit  and  district  courts  are  held  at  Keokuk,  for  the  east- 
ern division,  on  the  second  Tuesday  in  April  and  the  third  Tues- 
day in  October ;  at  Des  Moines,  for  the  central  division,  on  the  sec- 
ond Tuesday  in  ]\Iay  and  third  Tuesday  in  November;  at  Council 
Bluffs,  for  the  western  division,  on  the  second  Tuesday  in  ]\Iarch 
and  third  Tuesday  in  September  :^-^  at  Creston,  for  the  southern 
division,  on  the  fourth  Tuesday  in  March  and  first  Tuesday  in  Xo- 
Tember;!-*  and  at  Davenport,  for  the  Davenport  division,  tsvice  a 
year,  the  judges  to  fix  the  times  and  make  publication  and  give  due 
notice  thereof.^ ^  The  district  courts  in  Iowa  are  akso  required  to 
hold  intermediate  terms  when  necessary  where  they  have  failed  to 
hold  the  regular  term.^*^  The  district  court  clerk  in  Iowa  is  given 
power  to  adjourn  a  term  of  court  for  non-attendance  of  the  judge, 
1)y  T\.  S.  §  584.  quoted  elsewhere.''' 
Author's  section. 

The  creation  of  divisions  in  a  particular  district  does  not  create  new  dis- 
tricts nor  establish  additional  district  courts.  Hence  the  criminal  juris- 
diction remains  unaffected  unless  there  is  some  special  provision  to  the 
fontrary.is  There  being  no  such  provision  in  respect  to  the  northern  dis- 
trict of  Iowa,  the  court  for  that  district  has  power  to  name  the  time  and 
place  of  trial,  subject  only  to  the  defendant's  right  to  a  speedy  trial  within 
<he  district. 19 

loR.   S.   §   579.  U.   S.   Comp.   Stat.  Stiit.  547,  U.  S.  Comp.  Stat.  1905,  p. 

1901,  p.  477.  97. 

1:2 Act  Jan.  4.  1896.  c.   3.  29  Stat.        lePost,  §  3G1. 
■2.  V.  S.  Comp.  Stat.  1901.  p.  3.5:5.  I'Ante.   §  314. 

13 Act  Jan.  4.  1890,  c.  3.  29  Stat.  2.        isS«e  Logan  v.  Unfted  States.   144 

r.  S.  Comp.  Stat.  1901.  p.  353.  V.  S.  297.  36  L.  ed.  441.  12  Sup.  Ct. 

nAct    Apr.    21.    1906.    c.    1648.    .34  Rep.   617. 
Stat.  127.  li'United  States  v.  Kessel.  G3  Fed. 

i^Act   Apr.    28,    1904,   c.    1800,    33  433. 

459 


§   325  TEUMS   OF    FEDEUAL   COUUTS.  [Code  Fed- 

§  325.  —  Kansas. 

In  tlie  district  of  Kansas  terms  of  circuit  and  district  court  for 
the  first  division  of  the  district  are  lield  at  Kansas  City,  Kansas,, 
on  the  second  Monday  in  January  and  first  Monday  in  October;^ 
at  Topeka  on  the  second  J\Ionday  in  April ;  and  at  Leavenworth  on 
the  second  Monday  in  October;-  for  the  third  division  at  Fort  Scott 
on  the  first  Monday  in  May  and  second  Monday  of  November  ;■'  and 
for  tlie  second  division  at  Salina  on  the  second  Monday  in  May  and 
at  Wichita  on  the  second  Monday  in  March  and  second  Monday  in 
September.'*  But  no  cause,  action,  or  proceeding  is  to  be  tried  or 
considered  at  any  term  held  at  Salina  unless  by  consent,  or  by  order 
of  the  court  for  cause.^ 
Author's  section. 

§  326.  —  Kentucky,   regular  and  special    terms    and    adjourn- 
ments. 

In  the  western  district  of  Kentucky  terms  of  the  circuit  and  dis- 
trict courts  are  held  as  follows :  At  Louisville,  beginning  on  the 
second  j\Ionday  in  March  and  the  second  ilonday  in  October;  at 
Owensboro,  beginning  on  the  fourth  Monday  in  November  and  tlie 
first  Monday  in  May;  at  Paducah,  beginning  on  the  third  Monday 
in  April  and  the  third  Monday  in  November ;  at  Bowling  Green,  be- 
ginning on  the  third  Monday  in  May  and  the  second  Monday  in 
December.  Eegular  terms  of  the  circuit  and  district  courts  of  the 
United  States  for  the  eastern  district  of  Kentucky  are  held  at  the 
following  times  and  places,  namely:  At  Frankfort,  beginning  on 
the  second  Monday  in  March  and  the  fourth  Monday  in  September ; 
at  Covington,  beginning  on  the  first  j\Ionday  in  April  and  the  third 
Monday  in  October;  at  Eichmond,  beginning  on  the  fourth  Mon- 
day in  April  and  the  second  Monday  in  November;  at  London,  be- 
ginning on  the  second  Monday  in  ]\Iay  and  the  fourth  Monday  in 
November;  at  Catlettsburg,  beginning  on  the  fourth  ]\Ionday  in 
May  and  the  second  Monday  in  December,  and  at  such  other  times 
and  places  as  may  hereafter  be  provided  by  law.'^  District  court 
terms  are  not  limited  to  a  particular  number  of  days,  nor  is  it  neces- 

lAct  Feb.  19,  1903    c.  709,  32  Stat.        4Act  June  9,  1890,  c.  403,  26  Stat. 

849.  129.  U.  S.  Conip.  Stat.  1901,  p.  3-56. 

2R.  S.  §§  572,  658.  sAct  Aug.  9,  1888,  c.  817,  25  Stat. 

3Act  May  3,   1892,  e.   59,  27   Stit.  392.  U.  S.  Conip.  Stat.  355. 
24.   U.    S.    Comp.    Stat.    1901,   p.    357.        'The  above  is  the  substance  of  an 

Act  Mar.   2.    1895,    e.    1777.    28    Stai.  act  of  March  10,  1902,  c.  144,  32  Stat. 

806,  U.  S.  Conip.  Stat.  1901,  p.  358.  58,  U.  S.  Oomp.  Stat.  1905,  p.  99. 

4G0 


-Procedure]        KENTUCKY,   REGULAR   AND   SPECIAL  TERMS.  §  326 

sary  to  adjourn  because  a  term  elsewhere  intervenes,  but  the  latter 
may  be  adjourned  over  until  pending  business  is  concluded.^  Nor 
does  the  intervention  of  a  district  or  circuit  court  term  at  another 
place  preclude  the  power  to  adjourn  over  to  a  future  day.^  There 
is  also  a  provision  of  the  Eevised  Statutes  authorizing  district  judges 
in  Kentucky  to  adjourn  from  time  to  time  to  meet  the  necessities 
and  convenience  of  business.^  "^  A  special  section  of  the  Revised  Stat- 
utes empowering  the  clerk  to  adjourn  court,  quoted  in  the  statement 
as  to  terms  in  Alabama,  is  applicable  to  Kentucky  as  well  as  Ala- 
bama,ii  but  subject  to  the  general  statute  as  to  adjournments  of 
the  district  court,  and  subject  further  to  the  provision  of  R.  S.  § 
585,  quoted  elsewhere,^ ^  applicable  to  Indiana  and  Kentucky,  em- 
powering the  judge  to  direct  the  clerk  to  adjourn  to  a  particular 
day.  Special  terms  of  the  circuit  court  are  governed  by  R.  S.  § 
665,  which  provides  that  "in  the  districts  of  Kentucky  and  Indiana 
the  district  judge,  and  in  his  absence  the  circuit  justice  or  circuit 
judge,  may,  by  a  written  order  to  the  clerk  of  the  circuit  court,  ap- 
point a  special  term  of  such  court;  and  by  said  order  the  judge  may 
prescribe  the  duties  of  the  officers  of  the  court  in  summoning 
juries,  and  in  the  performance  of  other  acts  necessary  for  the  hold- 
ing of  such  special  term;  or  the  court  may  by  its  order,  after  it  i> 
opened,  prescribe  the  duties  of  his  officers,  and  the  mode  of  pro- 
ceeding, and  any  of  the  details  thereof.  Notice  of  such  sijecial  term 
shall  be  given  by  the  clerk  by  posting  a  copy  of  said  order  on  the 
front  door  of  the  court  house  where  the  court  is  to  be  held,  and 
by  publishing  the  same  in  one  or  more  newspapers  in  the  same 
place." 

Author's  section. 

While  the  provision  of  the  Revised  States  above  quoted  was  enacted  be- 
fore the  division  of  the  State  into  districts,  it  would  seem  to  be  still  in 
force  and  unimpaired  by  later  laws  governing  the  holding  of  regular  terras. 
The  statute  creating  the  Owensboro  division  provided  that  circuit  and  dis- 
trict judges  should  have  "the  same  power  to  call  special  terms  in  said  divi- 
sion as  they  may  now  do  under  the  laws  of  the  United  States  elsewhere 
in  said  district. is 

8R.    S.    §    579,   U.    S.   Comp.    Stat.        uR.  S.  §  584.  ante,  §  314. 
1901,  p.  477.  i2See  ante  in  §  323. 

9R.  S.  §  580,  U.  S.  Comp.  Stat.  is  Act  Aug.  8,  1888.  c.  792.  25  Stat. 
1901,  p.  477.  389,  U.  S.  Comp.  Stat.  1901,  p.  359. 

lOR.  S.   §   579,   U.   S.  Comp.   Stat. 
1901,  p.  477. 

4G1 


S  327  TERMS   OF    FEDERAL    COURTS.  [Code   Fed. 

§  327.  —  Louisiana,  regular  terms  and  adjournments. 

In  the  western  district  of  Louisiana  regular  terms  of  circuit  and 
district  courts  are  lield  at  Lake  Cliarles,  for  the  Lalve  Charles  divi- 
sion, on  the  first  Mondays  in  May  and  December  ;^^  at  Opelousas,  for 
the  Opelousas  division,  on  the  first  ^londays  in  January  and  June; 
at  Alexandria,  for  the  Alexandria  division,  on  tlie  fourth  ?Jondays 
in  January  and  Jime;  at  Shreveport,  for  the  division  of  that  name, 
on  the  third  Mondays  in  February  and  October:  at  ^lonrof.  for  the 
Monroe  division,  on  the  first  Mondays  of  April  and  Octolx'r.'"^  in 
the  eastern  district  of  Louisiana  terms  of  district  court  are  held 
at  Xew  Orleans,  for  the  Xew  Orleans  division,  on  the  third  Mon- 
days in  Februar}',  May  and  Xovember,i"  and  of  circuit  court  on  the 
fourth  Monday  in  April  and  first  Monday  in  Novembcn-;^^  at  Baton 
Houge,  for  the  Baton  Bouge  division,  terms  of  both  circuit  and  dis- 
trict court  are  held  on  the  second  ^londays  in  April  and  Xovem- 
ber.i^  By  B.  S.  §  579  district  judges  in  Louisiana  are  given  pow.T 
to  adjourn  court  "from  time  to  time  to  meet  the  necessities  or  cou- 
\cnience  of  business.'"2o 
Author's  section. 

§  328.  —  Maine,  Maryland  and  Massachusetts. 

In  the  circuit  court  for  the  Maine  district  terms  are  held  at  Port- 
land on  the  third  Tuesday  of  April  and  September  ;i  and  in  the 
district  court  at  Portland  the  first  Tuesday  in  February  and  De- 
cember; at  Bangor  the  first  Tuesday  in  June,  and  at  Bath  the  first 
Tuesday  in  September.^  In  Maryland,  circuit  court  terms  are  held 
at  Baltimore  first  Monday  in  April  and  November,'^  and  at  Cum- 
berland, second  Monday  in  May  and  last  Monday  in  September:^ 
and  district  court  terms  at  Baltimore  on  first  Tuesdays  in  Marcli, 
June,  September  and  December,^  and  at  Cumberland  on  the  second 
Monday  in  May  and  last  Monday  in  September.*^    In  Massaehiisclls 

isAct  Mar.  2,  1905.  c.  1308.  33  Stat.  1901.  p.  534.  as  amended  bv  act  Mav 

841,  U.  S.   Comp.   Stat.   1905.  p.   100.  14.  1902.  c.  790.  32  Stat.  199. 

isAct    Mav    18,    1900.    c.    481,    31         2R.    S.    S    572.    U.   S.    Comp.    Stat. 

Stat.    179,    U.    S.    Comp.   Stat.    1901,  1901.  p.  468. 
p.  368.  3R.    s.    S    658.   U.    S.   Comp.    Stat. 

ITR.  S.  §  572.  1901.  p.  534. 

isR.  S.  §  658.  -lAct  Mar.  21.  1892.  c.  20.  27  Stat. 

i9Act  Aug.  13.  1888,  e.  869.  25  Stat.  11,  U.  S.  Comp.  Stat.  1901.  p.  S^.^. 
438.  U.  S.  Comp.  Stat.  1901,  p.  367.  r,R.    R.    §    572,   U.    S.   Comp.    Sit. 

2  OR.    S.    §    579.   U.   S.   Comp.   Stat.  1901.  p.  468. 
1901,  p.  477.  «Act  Mar.  21.  1892.  c.  20,  27  Stit. 

iR.    S.    §   658,   U.   S.    Comp.    Stat.  11,  U.  S.  Comp.  Stat.  1901,  p.  368. 

4G2 


ii 


Procedure]  MICHIGAN— MINNESOTA.  §  330 

circuit  court  terms  are  held  at  Boston  the  last  Tuesday  of  Fehruarv 
and  third  Tuesday  of  October;"  and  district  court  terms  at  Boston 
the  third  Tuesday  in  March,  fourth  Tuesday  in  June,  second  Tues- 
day in  September,  and  first  Tuesday  in  December.^ 
Author's  section. 

R.  S.  §§  572  and  658  provide  that  when  the  named  day  falls  on  Sunday 
the  term  shall  commence  the  following  day. 

§  329.  —  Michigan,  regular  and  admiralty  terms  and  adjourn- 
ments. 
In  the  ea.stern  district  of  Michigan  terms  of  circuit  and  district 
court  are  held  at  Detroit,  for  the  southern  division  thereof,  on  the 
first  Tuesdays  in  March,  June  and  November  ;i''  and  at  Bay  City, 
for  the  northern  division,  on  the  first  Tuesdays  in  May  and  Octo- 
ber." In  the  western  district  terms  of  circuit  and  district  court 
are  held  at  Grand  Kapids,  for  the  southern  division  thereof,  on  the 
first  Tuesdays  in  ■Marcli  and  October;  and  at  Marquette,  for  the 
northern  division,  on  the  first  Tuesdays  in  May  and  September.^^ 
A  special  or  adjourned  term  of  the  district  court  at  Bay  City  in 
the  northern  division  of  the  eastern  district  is  required  to  be  held 
beginning  in  Fel)ruary  each  year,  for  the  trial  of  admiralty  causes.^^ 
One  or  more  terms  of  the  district  court  must  be  held  at  Port  Huron 
annually  in  the  discretion  of  the  judge  and  at  such  times  as  he  shall 
appoint.^*  By  R.  S.  §  579  district  judges  in  Michigan  are  em- 
j)o\vered  to  adjourn  court  "from  time  to  time,  to  meet  the  neces- 
sities or  convenience  of  business/'^^ 
Author's  section. 

§  330.  —Minnesota. 

in  the  district  of  Minnesota  terms  of  district  and  circuit  courts 
are  lield  at  Winona,  for  the  first  division,  on  the  third  Tuesdays  in 
May  and  Xovember;  at  Mankato,  for  the  second  division,  on  the 
fourth  Tuesdays  in  April  and  October;  at  St.  Paul,  for  the  third 

■Act  May  14.  1902,  c.  790,  32  Stat.  Stat.    175,    U.    S.    Comi).    Stat.    19(11. 

199.  p.    370. 

SR.    S.    §    572.    U.   S.    Comp.   Stat.        is  Act  Apr.  3o.  1894.  c.  66,  28  Stat. 

1001.   p.  409.  67,  U.  S.  Comp.  Stat.  1901,  p.  373. 

i"R.   S.   §§   572,  658.   V.   S.  Comp.        i^Act   June   19.   1878.   c.   326.   S   9, 

Stat.  1901.  pp.  460.  534.  20  Stat.  177,  U.  S.  Comp.  Stat.  1901, 

iiAct  Apr.  .30.  1894.  c.  66,  28  Stnt.  p.  371. 
67,  U.   S.   Comp.   Stat.    1901,   p.   373.        i5R.   S.   §  579.  U.   S.   Comp.   Stat. 

i2Act    June    19,    1878,    c.    326,    20  1901,  p.  477. 

463 


§   331  TERMS  OF  FEDERAL  COURTS.  [Code   Fed. 

division,  on  the  first  Tuesdays  in  June  and  December;  at  Min- 
neapolis, for  the  fourth  division,  on  the  first  Tuesdays  in  April  and 
•October;  at  Duluth,  for  the  fifth  division,  on  the  second  Tuesdays 
in  January  and  July;  and  at  Fergus  Falls,  for  the  sixth  division, 
■on  the  first  Tuesday  in  May  and  second  Tuesday  in  November.^  "^ 
Author's  section. 

§  331.  — Mississippi,  regular  and  special  terms. 

In  the  northern  district  of  Mississippi  terms  of  circuit  and  dis- 
trict court  are  held  at  Aberdeen,  for  the  eastern  division,  on  the 
first  Mondays  in  April  and  October,  and  continuing  twenty-four 
judicial  days,  if  the  business  requires;  and  at  Oxford,  for  the  west- 
ern division,  on  the  first  Mondays  in  June  and  December,  and  con- 
tinuing so  long  as  business  requires.^''  In  the  southern  district 
terms  of  circuit  and  district  courts  are  held  for  the  Jackson  divi- 
sion on  the  fourth  Mondays  in  January  and  June;  at  Meridian,  for 
the  eastern  division,  on  the  second  Mondays  of  March  and  Septem- 
ber, continuing  three  weeks  or  so  long  as  business  requires  ;2*^  at 
Biloxi,  for  the  southern  division,  on  the  third  Mondays  in  February 
and  August;^  and  at  Vicksburg,  for  the  western  division,  on  the 
first  Mondays  in  January  and  July,  and  continuing  four  weeks,  or 
so  long  as  business  requires.^  The  district  judge  in  the  northern 
district  is  also  authorized  to  hold  "additional  special  terms  of  said 
•courts,  for  the  disposal  of  the  unfinished  business  thereof,  whenever 
the  interests  of  the  public  and  the  condition  of  the  docket  shall  so 
require;  provided,  that  there  shall  not  be  more  than  two  such  spe- 
cial terms  in  any  one  year  in  each  division,  nor  for  a  longer  period 
than  twelve  judicial  days  for  each  special  term.""^ 
Author's  section. 

§  332.  — Missouri,  regular  and  adjourned  terms. 

In  the  eastern  district  of  Missouri  terms  of  circuit  and  district 

iTSee  act  Apr.  20.   1890,  c.   107,  §  July   18,   1894,   c.   144,   28   Stat.   114, 

4,    26    rStat.    73,    U.    S.    Comp.    Stat.  U.   S.   Comp.   Stat.    1001,   p.   382. 

1901,   p.    376,   as   amended   Act    Feb.  lAct  Apr.  4,   1888,  c.  58,  2,5  Stat. 

9,    1904,    c.    153,   33    Stat.    11,   U.    S.  78:  act  May  3,  1900,  c.  344.  31  Stat. 

Comp.  Stat.  1905,  p.  101.  165;  U.  S.  Comp.  Stat.  1901.  pp.  381, 

19 Act    June    15.    1882.    c.    218,    22  384. 

Stat.  10],  act  Feb.  6,  1889,  c.  113,  25  ^Act  Feb.  28,  1887,  c.  279,  24  Stat. 

Stat.  655,  U.  S.  Comp.  Stat.  1901,  p.  430,  U.  S.  Comp.   Stat.   1901.  p.  380. 

378,  492.  3Act   June    15,    1882,  c.   218,    §    10, 

2  0Term  is  to  continue  three  weeks  22  Stat.  103,  U.  S.  Comp.  Stat.  1901, 

■or  so  long  as  business  requires.     Act  p.   380. 

464 


Procedure]  MONTANA   AND   NEBRASKA.  §  333 

courts  are  held  at  St.  Louis,  for  the  eastern  division,  terms  of  dis- 
trict court  commencing  on  the  first  Mondays  in  ^Ma}'  and  Xovember,^ 
and  of  circuit  court  on  the  third  Mondays  in  March  and  Septem- 
ber;^ at  Hannibal,  for  the  northern  division,  terms  of  both  circuit 
and  district  court  commence  on  the  first  Mondays  in  May  and  No- 
vember;''' and  in  the  southeastern  division  at  Cape  Girardeau  on 
the  second  Mondays  in  April  and  October.^  In  the  western  district 
terms  of  circuit  and  district  court  are  held  at  Kansas  City,  for  the 
western  division,  on  the  fourth  Monday  in  April  and  first  Monday 
in  November  f  at  Joplin,  for  the  southwestern  division,  on  the  sec- 
ond Mondays  of  June  and  January  ;^*^  at  St.  Joseph,  for  the  St. 
Joseph  division,  on  the  first  Monday  in  March  and  third  ]\Ionday  in 
September ;  at  Jefferson  City,  for  the  central  division,  on  the  third 
Mondays  of  March  and  October ;  and  at  Springfield,  for  the  south- 
ern division,  on  the  first  Mondays  in  April  and  October.!^  "The 
circuit  court  for  the  several  districts  of  ilissouri  may  at  any  time 
order  adjourned  terms  thereof.  In  the  eastern  district  a  copy  of  the 
order  shall  be  posted  on  the  door  of  the  court  room,  and  shall  bo 
advertised  in  some  newspaper  printed  in  St.  Louis ;  and  in  th^^  west- 
ern district  a  copy  of  the  order  shall  be  posted  on  the  door  of  the 
court  room  and  advertised  in  some  newspaper  printed  in  the  city 
of  Jefferson,  at  least  twenty  days  before  the  adjourned  term  is  lield. 
At  such  adjourned  term  any  business  may  be  transacted  which  might 
be  transacted  at  a  regular  term.''^^ 
Author's  section. 
An  adjourned  term  is  an  extension  of  the  preceding  session.is 

§  333.  —  Montana  and  Nebraska. 

Terms  of  circuit  and  district  courts  in  the  Montana  district  are 
required  to  be  held  at  Helena  on  the  first  Mondays  in  April  ami 
November;! 5  at  Butte  on  the  first  Tuesdav  in  Februarv  and  on  the 


5R.   S.   §    572,    U.    S.   Comp.   Stat.        loAct  Jan.  24.  1001.  o.  ]()4.  31  Stat. 

IWl.  p.  470.  739,  U.  S.  Comp.  Stat.  1901.  p.  390. 

6R.    S.    §    658,   U.    S.    Comp.    Stat.        nAct  Apr.  19,  1892.  e.  50.  27  Stat, 

inoi,  p.  535.  20.  U.  S.  Comp.  Stat.  1901.  p.  388. 

VAct  May  14.  1890,  c.  202,  26  Stat.        i2R.   s.   §   633,   U.   S.   Comp.   Stat. 

106,  U.   S.'Comp.  Stat.   1901,  p.  386.  1901.   p.   543. 

8Act  Jan.  31,  1905.  c.  287,  33  Stat.        i3:\Iemo.   1   Cranch  C.  C.  159,  Fed. 

626,  U.  S.  Comp.  Stat.  1905,  p.  103.  Cas.   No.  9.409. 

9Act  Apr.  19,  1892.  c.  50.  27  Stat.         i5Act   Feb.   22.   1889,  c.   180,   §   21. 

20,  U.  S.  Comp.  Stat.  1901,  p.  388.  25  Stat.  682. 

Fed.  Proc— 30.  465 


§  334  TERMS   OF    FEDERAL    COURTS.  [Code  FcJ. 

first  Tuesday  in  September  in  each  year;^^  and  at  Great  Falls  on 
the  first  Monday  in  ]\Iay  and  on  the  first  Monday  in  October  in  each 
year,  and  causes  civil  and  criminal  may  be  transferred  by  the  coiirt 
or  judge  thereof  from  Helena  or  Butte  to  Great  Falls  or  from  Great 
Falls  to  Butte  or  Helena,  in  said  district,  when  the  convenience 
of  parties  or  the  ends  of  justice  would  be  promoted  by  the  transfer ; 
and  any  interlocutory  order  may  be  made  by  the  court  or  judge 
thereof  in  either  place. ^'^  In  the  district  of  Nebraska  terms  of  cir- 
cuit and  district  courts  are  held  at  Omaha  on  the  first  Monday  in 
May  and  second  Monday  in  November;  at  Lincoln  on  the  third 
]\ronday  in  January  and  first  Monday  in  October ;  at  Hastings  on  the 
third  Monday  in  April;  and  at  Norfolk  on  the  fourth  Monday  in 
April.18 

Author's  section. 

§  334.  — Nevada  and  New  Hampshire, 

In  the  district  of  Nevada  circuit  court  terms  are  held  at  Carson 
on  the  third  Monday  in  March  and  first  Monday  in  November;' 
and  district  court  terms  at  Carson  on  the  first  Mondays  in  February, 
May  and  October.^  The  provision  of  E.  S.  §  664  respecting  special 
circuit  court  terms  in  California  applies  also  to  Nevada.^  In  tho 
district  of  New  Hampshire,'*  circuit  court  terms  are  held  at  Ports- 
mouth, on  the  first  Tuesday  of  May ;  at  Concord  on  the  second  Tues- 
day of  December ;  and  at  Littleton  last  Tuesday  in  August ;  and  dis- 
trict court  terms  are  held  at  Portsmouth  on  the  third  Tuesdays  in 
March  and  September;  at  Concord  on  the  third  Tuesdays  in  June 
and  December ;  and  at  Littleton  the  last  Tuesday  in  August. 
Author's  section. 

§  335.  —  New  Jersey  at  Trenton  and  Newark. 

Circuit  court  terms  in  the  district  of  New  Jersey  are  held  at 
Trenton  on  the  fourth  Tuesdays  in  March  and  September,  and  dis- 
trict court  terms  at  Trenton  the  third  Tuesdays  in  January,  April, 

i6Act  July  7,  1898.  c.  571,  30  Stat.  lAct  Feb.  18,  1876.  c.  11,  19  Stat. 
685.  U.   S.   Comp.  Stat.  ioO\.  p.   392.    4,  U.  S.  Comp.   Stat.   1901,  p.  541. 

i7Act   Apr.    27.    1904,    c.    1610.    33        2R.   S.    §   572,   U.    S.    Comp.    Stat. 
Stat.  313,  U.  S.  Comp.  Stat.  1905.  p.     1901.  p.  470. 
104.     The  same  provision  as  to  trans-        sSee  ante,  §  316. 
fers   is   in    the   act   of   July   7,   1898,        ^See  R.  S.  §§  668,  572.  act  Feb.  23, 
supra.  '  1881,  c.  71,  21  Stat.  330;  act  IMar.  10, 

isAot  Aug.  3.  1894.  c.  194,  28  Stat.  1892,  c.  15,  27  btat.  7,  V.  S.  Co:r-i. 
221,  U.  S.  Comp.  Stat.  1901,  p.  392.        Stat.     1901,     pp.     393,   470.   53  i :    u.c 

Alay  14,  1902,  c.  790.  32  Stat.  199. 
460 


Procednre]  NEW    YORK   TERMS.  5   3:JT 

June  and  September.^  But  at  any  such  term  of  either  circuit  or 
district  court  the  judge  or  judges  may  by  consent  or  upon  applica- 
tion and  good  cause  shown,  order  any  civil  cause  set  for  hearing 
or  trial  at  said  term,  to  be  tried  at  Newark  upon  a  day  set  by  said 
judge.  Such  application  must  be  made  to  said  judge  either  in 
vacation  or  term  time,  one  week  before  the  day  set  for  trial,  and  on 
at  least  five  days'  notice  to  the  opposite  party,  or  his  or  her  coun- 
sel.7 

Author"    section. 

§  336.  —  New  York,  circuit  court  terms. 

Terms  of  the  circuit  court  in  the  four  districts  of  New  Yoric 
are  held  as  follows :  In  the  northern  district  of  New  York,  ar 
Utica  on  the  first  Tuesday  of  December;  at  Syracuse  on  the  firsi: 
Tuesday  of  April;  at  Albany  on  the  second  Tuesday  of  February. 
In  the  western  district  of  New  York,  at  Eochester,  on  the  second 
Tuesday  of  May;  at  Canandaigua  on  the  second  Tuesday  in  Sep- 
tember; at  Bufi'alo  on  the  second  Tuesday  of  November.  In  th  ■ 
southern  district  of  New  York,  at  the  city  of  New  York,  on  tl:  ■ 
first  Monday  in  April  and  the  third  ]\Ionday  in  October ;  and  for 
the  trial  of  criminal  causes  and  suits  in  equity,  on  the  last  ]\Ion- 
day  in  February;  and  exclusively  for  the  trial  and  disposal  of 
criminal  cases,  and  matters  arising  and  pending  in  said  court,  ou 
the  second  Wednesdays  in  January,  March  and  May,  on  the  tliird 
Wednesday  in  June,  and  on  the  second  Wednesdays  in  October  and 
December:  Provided,  That  the  holding  of  any  of  the  last-men- 
tioned terms  for  criminal  business  shall  not  dispense  with  nor  affect 
the  holding  of  any  other  term  of  the  court  at  the  same  time,  and 
tliat  the  pending  of  any  other  term  of  the  court  shall  not  prevent 
the  holding  of  any  of  the  said  terms  for  criminal  business.  In  the 
eastern  district  of  New  York,  at  Brooklyn,  on  the  first  Wednesday 
in  every  month.^ 
Author's  section. 

§  337.  —  New  York,  district  court  terms. 

1'erms  of  the  district  court  in  the  four  districts  of  New  York 

6See  R.  S.  §§  572.  6.5S.  U.  S.  Comp.  iiioning  jurors  and  witnesses  at  New- 
Stat.  1901.  pp.  470.  .5,3fi.  ark. 

"See  act  Aug.  8,  1888.  c.  790,  25  sR.  S.  §  658.  as  amended  act  :\Inv 
Stat.  388.  U.  S.  Comp.  Stat.  1001,  p.  12.  1000.  c.  391.  §  3.  31  Stat.  175, 
393,  which  further  provides  for  sum-    U.  S.  Couip.  Stat.  1901,  p.  536. 

467 


S   o3S  TEKAIS    VI'    b'EiJLAlXL    COURTS  [Code   Fed. 

are  held  as  follows:  In  the  northern  district  of  jSTew  York,  at 
Albany,  on  the  second  Tuesday  of  February;  at  Utica  on  the 
first  Tuesday  of  December;  at  Binghamton  on  the  second  Tues- 
day of  June ;  at  Auburn  on  the  first  Tuesday  of  October ;  at  Syra- 
cuse on  the  first  Tuesday  of  April,  and,  in  the  discretion  of  the 
judge  of  the  court,  one  term  annually  at  such  time  and  place  within 
the  counties  of  Saratoga,  Onondaga,  Saint  Lawrence,  Clinton,  Jef- 
ferson, Oswego  and  Franklin  as  he  may  from  time  to  time  appoint. 
Such  appointment  shall  be  made  by  notice  of  at  least  twenty  days 
j)ublished  in  a  newspaper  published  at  the  place  where  said  court  is 
to  be  held.  In  the  western  district  of  New  York,  at  the  city  of 
Elmira,  on  the  second  Tuesday  of  January;  at  the  city  of  Buffalo 
on  the  second  Tuesdays  of  March  and  November ;  at  the  city  of 
Kochester  on  the  second  Tuesday  of  May ;  at  the  city  of  Jamestown 
on  the  second  Tuesday  of  July ;  at  the  city  Lockport  on  the  second 
Tuesday  of  October.  In  the  southern  district  of  New  York,  in  the 
city  of  New  York,  on  the  first  Tuesday  in  every  month.  In  the 
eastern  district  of  New  York,  in  Brooklyn,  on  the  first  Wednesday 
in  every  month.  Eegular  sessions  of  the  district  court  for  the 
western  district  of  New  York,  for  the  hearing  of  motions  and  for 
proceedings  in  bankruptcy  and  the  trial  of  causes  in  admiralty  are 
required  to  be  held  at  the  city  of  Bufl'alo  at  least  two  weeks  in  each 
month  of  the  year  except  August,  unless  the  business  is  sooner  dis- 
posed of.  The  times  for  holding  the  same,  and  such  other  special 
sessions  as  the  court  shall  deem  necessary,  are  directed  to  be  fixed 
by  rules  of  the  court.^^ 
Author's  section. 

§  338.  — North  Carolina,  regular  and  special  terms. 

In  the  eastern  district  of  North  Carolina  terms  of  the  district 
court  are  held  at  Washington  on  the  second  Mondays  in  April  and 
October;^ 3  at  Elizabeth  City  on  the  third  Mondays  in  April  and 
October;  at  Newbern,  on  the  fourth  Mondays  in  April  and  Octo- 
ber ;  at  Kaleigh  on  the  fourth  Monday  of  May  and  first  IMonday  of 
December;  at  Wilmington  on  the  first  Monday  after  fourth  Mon- 
day in  April  and  October.^  ^  Terms  of  the  circuit  court  in  the  east- 
ern district  are  held  at  Washington,  Raleigh  and  Wilmington,  at 

iiR.  S.  §  572.  act  ]\Iav  12.  1900,  c.  is  Act  Mar.  3,  1905  c.  1437,  33  Stat. 
391.  31  Stat.  175,  176.  U.  S.  Comp.  1004,  U.  S.  Comp.  Stat.  1905,  p.  107, 
Stat.  1901,  pp.  395.  471.  i4Act  Aug.  9,  1894,  c.  244,  28  Stat. 

274.  U.  S.  Comp.  Stat.  1901,  p.  398. 
468 


Procedure]  NORTH   DAKOTA— OHIO.  §  340 

the  same  times  as  terms  of  the  district  court  there.^^  In  the  west- 
ern district  terms  of  circuit  and  district  courts  are  held  at  Greens- 
horough  on  the  first  Mondays  in  April  and  October;  at  Statesville 
on  the  third  j\Iondays  in  April  and  October ;  at  Asheville  on  the  first 
Mondays  in  May  and  Xovember;^^  at  Charlotte  on  the  second  ]\Ion- 
days  in  June  and  December,  to  continue  until  the  business  is  dis- 
posed of;  and  at  Wilkesboro  on  the  second  Mondays  of  July  and 
November,  and  continuing  until  the  business  is  disposed  of.^^  "In 
each  of  the  districts  of  North  Carolina  the  circuit  court  may  order 
special  terms  thereof,  to  be  held  at  such  times  and  places  in  said 
district  as  the  court  may  designate ;  provided,  that  no  special  term 
of  the  circuit  court  for  either  district  shall  be  appointed,  except 
by  and  with  the  concurrence  and  consent  of  the  circuit  Judge."'^^ 
The  district  court  clerks  in  North  Carolina  are  given  power  to  ad- 
journ a  term  of  court  for  non-attendance  of  the  judge  by  E.  S.  § 
584,  quoted  elsewhere.^  ^ 
Author's  section. 

§  339.  —North  Dakota. 

In  the  four  divisions  of  the  district  of  North  Dakota  terms  of 
circuit  and  district  court  are  held  as  follows:  At  Bismarck  for 
southwestern  division,  first  Tuesday  in  March ;  at  Fargo,  for  south- 
eastern division,  third  Tuesday  in  May;  at  Grand  Forks,  for  the 
northeastern  division,  second  Tuesday  in  November;  at  Devil's 
Lake,  for  the  northwestern  division,  on  the  first  Tuesday  in  July; 
and  at  Minot  on  the  second  Tuesday  in  October.^ 
Author's  section. 

§  340.  —  Ohio,  regular  terms  and  adjournments. 

In  the  northern  district  of  Ohio  terms  of  circuit  and  district 
court  are  held  for  the  eastern  division  thereof,  at  Cleveland  on  the 
first  Tuesdays  in  Feliruary,  April  and  October ;  and  for  the  western 
division  at  Tojedo  on  the  first  Tuesdays  in  June  and  December.^ 
In  the  southern  district  terms  of  circuit  and  district  court  are  held 

15R.   S.  §§  -572.   658,  U.  S.   Comp.  isAnte.  §  314. 

1901,  pp.  471.  537.  lAct    June    29.    1906.    c.    3595,    34 

isAct  June  J9.  1878.  c.  322.  20  Stat.  Stat.  610.  amending  act  of  Apr.   26, 

173,  U.  S.  Comp.  Stat.   1901,  p.  398.  1890,  c.  161.  26  Stat.  67,  U.  S.  Comp. 

iTAct     Feb.     23.     1903.    c.   749,    32  Stat.  1901.  p.  389. 

Stat.  852.  3Act  Julv  27,  1882.  c.  351.  22  Stat. 

18R.  S.  §  667,  U.  S.  Comp.  Stat.  176,  U.  S. 'Comp.  Stat.  1901,  p.  404. 
1901,  p.  544. 

4G9 


§  341  TERMS   OF    FEDERAL   COURTS.  ICodo  Fed. 

for  the  western  division  at  Cincinnati  on  the  first  Tuesdays  in  Feb- 
ruary, April  and  October;  and  for  the  eastern  division  at  Colum- 
bus on  the  first  Tuesdays  in  June  and  December.-*  By  E.  S.  §  579 
the  district  judges  in  Ohio  are  empowered  to  adjourn  court  "from 
time  to  time,  to  meet  the  necessities  or  convenience  of  the  busi- 
ness."^ 

Author's  section. 

§  341.  —  Oklahoma  and  Oregon. 

In  the  eastern  district  of  Oklahoma  regular  terms  of  circuit  and 
•district  courts  are  to  be  held  at  Muscogee  on  the  first  ilonday  in 
January ;  at  Vinita  on  the  first  Monday  in  March ;  at  Tulsa  on  the 
first  Monday  in  April ;  at  South  McAlester  on  the  first  Monday  in 
June ;  at  Ardmore  on  the  first  j\Ionday  in  October.  In  the  western 
•district  the  regular  terms  are  at  Chickasha  on  the  first  j\Ionday  of 
November;  at  Guthrie  on  the  first  Monday  in  January;  at  Okla- 
homa City  on  the  first  jMonday  in  March :  at  Enid  on  the  first  Mon- 
■day  in  June,  and  at  Lawton  on  the  first  Monday  in  October  in  eacli 
year." 

Circuit  court  terms  in  tlie  Oregon  district  are  held  at  Portland 
on  the  second  Monday  of  April  and  the  first  ]\Ionday  of  October;* 
and  district  court  terms  on  the  first  Mondays  in  ■March.  July  and 
November. ^  The  provision  of  R.  S.  §  664,  for  special  circuit  court 
terms  in  California,  applies  also  to  Oregon,^"* 
Author's  section. 

§  342.  —  Pennsylvania,  regular  and  special  terms  and  adjourn- 
ments. 

In  the  eastern  district  of  Pennsylvania  terms  of  district  courts 
are  held  at  Philadelphia  on  the  second  Mondays  in  March  and  June, 
the  third  Monday  in  September,  and  second  Monday  in  Decem- 
ber^ ^  and  of  circuit  court  at  Philadelphia  on  the  first  ]\[ondays 
in  April  and  October.^  ^  In  the  western  district  terms  of  district 
court  are  held  at  Pittsburg  on  the  first  Monday  in  ■May  and  third 

4 Act  Feb.  4.  1880,  c.  18.  21  Stat.  64,  9R.    S.    §    572.   U.   S.    Comp.   Stat. 

U.  S.  Comp.  Stat.  1901,  p.  403.  1901.  p.  472. 

5R.    S.    S    579.   U.    S.    Comp.    Stat.  lOSee  ante.  §  SIR. 

1901.  p.  477.  i2Act   June    30,    1902.    c.    1,336.    32 

vAct    June    10.    1900.    c.    3335,    34  Stat.   549. 

Stat.  275.  13R.   S.    s   658,   U.   o.    Comp.   Stat. 

8Act  Feb.  IS.  1876,  c.  11,  19  Stat.  4.  1901.   p.   538. 
U.  S.  Comp.  Slat.  1901.  p.  541. 

470 


i 


Procedure]  RHODE    ISLAND   TERMS.  §  343 

Monday  iu  October,  and  of  circuit  court  on  the  second  Monda}s  oi 
]\Iay  and  jSTovember ;  and  at  Erie  terms  of  both  circuit  and  district 
courts  are  held  on  the  third  ]\Ionday  in  July  and  the  second  Monday 
in  January.! ■*  j^  the  middle  district  terms  of  circuit  and  district 
court  are  held  at  Scranton  on  the  fourth  Monday  of  February  and 
tliird  Monday  of  October ;  at  Williamsport  on  the  second  Mondays  of 
January  and  June ;  at  Harrisburg  on  the  first  jMondays  in  May  and 
December.  The  law  provides  that  sessions  in  the  middle  district 
are  to  continue  so  long  "as  the  judges  thereof  shall  severally  direct 
and  determine;  and  adjourned  sittings  and  sessions  may  be  held 
from  time  to  time  according  as  the  business  of  the  said  courts  shall, 
in  the  opinion  of  the  same,  require  it.''^^  Moreover,  the  circuit  and 
district  court  for  the  middle  district,  or  either  of  them,  "may  from 
time  to  time,  in  their  discretion,  appoint  special  terms  of  court, 
civil  or  criminal,  and  require  grand,  traverse,  or  petit  juries,  or  all 
of  them,  to  attend  the  same,  by  an  order  to  be  entered  of  record 
thirty  days  before  the  day  at  which  such  term  shall  convene,  and  at 
such  special  terms  shall  have  all  the  powers  which  they  respectively 
have  at  the  regular  terms  appointed  by  law;  Provided,  however, 
That  no  special  term  of  said  circuit  court  shall  be  appointed  except 
upon  the  order  of  the  circuit  judge  or  of  the  associate  judge  of  the 
Supreme  Court  allotted  to  the  third  judicial  circuit."^''  An  earlier 
provision  of  the  Eevised  Statutes  applicable  to  Pennsylvania  and  a 
few  other  States,  authorizes  the  district  judges  to  adjourn  court 
"from  time  to  time,  to  meet  tlie  necessities  or  convenience  of  the 
business."!'^ 

Author's  section. 

§  343.  —  Rhode  Island  at  Providence  and  Newport. 

Circuit  court  terms  in  the  district  of  Ehode  Island  are  held  at 
Providence  on  the  fourth  Tuesday  of  May  and  15th  day  of  Novem- 
ber.i    District  court  terms  are  held  at  Providence  on  the  first  Tues- 

KR.   S.   §§   572.  658.   U.   S.   Comp.        itR.   S.    §   579,  U.   S.   Comp.   Stat. 

Stat.  1901,  pp.  472.  5.38.  1901,  p.  477. 

i5Aet   June   30.    1902.   c.    1.335,   32        lAct  Mav  14.  1902,  c.  790,  32  Stat. 

Stat.  549.  U.  S.  Comp.  Stat.  1905.  p.  199.  R.  S. '§  658.  U.   S.  Comp.  Stat. 

107.  1901,   p.   538.     When   that  date  falls 

i6Act   M«r.    2.    1901.    c.    801,    §    6.  on  Sunday,  then  the  term  commences 

31  Stat.  884,  U.  S.  Comp.  Stat.  1901.  tlie  following  day. 
p.  407. 

471 


5   344  TEUMS   OF    FEDERAL    COURTS.  [Code  Fed. 

(lays  in  Febrnarv  and  August,  and  at  Newport  on  the  second  Tues- 
day in  May  and  the  third  Tuesday  in  Octolicr.^ 
Author's  section. 

§  344.  —  South  Carolina. 

Terms  of  district  court  in  tlie  western  division  of  the  South 
Carolina  district  are  held  at  Greenville  on  the  third  Tuesdays  in 
April  and  October;  and  in  the  eastern  division  at  Charleston  on  the 
first  Tuesdays  in  June  and  December,  at  Columbia  on  the  fofurth 
Tuesday  in  November,  and  at  Florence  on  the  first  Tuesday  in 
^larch.^  Terms  of  the  circuit  court  are  held  at  Greenville  on  the 
third  Tuesdays  in  April  and  October;  at  Columbia  on  the  fourth 
Tuesday  of  November;  at  Charleston  on  the  first  Tuesday  in 
April ;  and  at  Florence  on  the  first  Tuesday  in  March.'' 
Author's  section. 

South  Carolina  constitutes  only  one  district  though  the  legislation  of 
Congress  is  ambiguous  and  seems  to  speak  of  two.  Congress  also  seems 
to  assume  the  existence  of  one  circuit  court  for  the  entire  district,  but 
of  two  district  courts,  one  for  each  division.6 

§  345.  —  South  Dakota. 

The  terms  of  the  district  and  circuit  courts  of  the  United  States 
in  and  for  the  State  of  South  Dakota  are  held  at  Sioux  Falls,  the 
first  Tuesday  in  April  and  the  third  Tuesday  in  October;  at  Aber- 
deen, the  first  Tuesday  in  ]\Iay  and  the  second  Tuesday  in 
November;  at  Pierre,  the  second  Tuesday  in  June  and  the  first 
Tuesday  in  October;  at  Deadwood,  the  third  Tuesday  in  May  and 
the  first  Tuesday  in  September.* 
Author's  section. 

§  346.  —  Tennessee,  regular,  intermediate  and  special  terms  and 
adjournments. 

In  the  eastern  district  terms  of  circuit  and  district  court  are  held 
at  Chattanooga  for  the  southern  division  on  the  first  IMondays  in 
April  and  December  ;^°  at  Knoxville  for  the  northern  division,  on 

2R.    S.    §   572.   U.    S.    Comp.    Stat.        6Ant«.  §  284. 
1901,  p.  472.  sAct  I\rav  9,  1902,  c.  785,  32  Stat. 

4See   act    Dec.    21.    1898.    c.    32.    §    197. 
4.   30   Stat.    7G9.   U.    S.   Comp.    Stat.        loAct   .June   18,    1906,   c.   3341,   34 
1901.  p.  409.  Stat.    298. 

5 Act  Mav  10.  1900.  c.  390.  31  Stat. 
174,  U.  S.'Comp.  Stat.  1901,  p.  410. 

472 


Procedure]  TEXAS.  §  347 

the  tirst  Monday  in  March  and  second  Monday  in  September,  con- 
tinuing as  long  as  the  presiding  judge  may  deem  necessary  ;i^  and 
at  Greeneville  for  the  northeastern  division,  on  the  first  ^londays  in 
June  and  Xovember.  each  term  to  continue  as  long  as  the  presiding 
judge  shall  deem  necessary.^  ^  In  the  middle  district  terms  of  circuit 
and  district  courts  are  held  at  Xashville  on  the  first  Mondays  in 
May  and  October.^^  In  the  western  district  terms  of  circuit  and 
district  court  are  held  at  Jackson  for  the  eastern  division  thereof, 
at  least  twice  each  year,  at  such  times  as  the  judge  shall  fix;^^  and 
at  Mempliis  for  the  western  division  on  the  fourth  ^londays  in 
May  and  Xovember.^-'  When  a  judge  in  any  Tennessee  district 
court  fails  to  hold  a  regular  term  intermediate  terms  may  be  held.^  ^ 
The  district  court  clerks  in  Tennessee  are  given  power  to  adjourn 
a  term  of  court  for  nonattendance  of  the  judge  in  certain  cases,  by 
K.  S.  §  584,  quoted  elsewhere.^ '^  ''In  each  of  the  districts  of  Ten- 
nessee the  judges  of  the  circuit  court  may  appoint  special  terms 
thereof,  to  be  held  at  the  place  where  the  regular  terms  are  held  : 
and  notice  of  such  special  term  shall  be  published  for  four  con- 
secutive weeks  in  at  least  one  newspaper  printed  at  the  place  where 
the  court  is  to  be  held.''^^ 
Author's  section. 

§  347.  —Texas. 

In  the  southern  district  of  Texas  terms  of  circuit  and  district 
court  are  held  at  Galveston  on  the  second  Monday  of  January  and 
the  first  ]\Ionday  of  June;  at  Houston  on  the  fourth  ^londays  of 
February  and  September;  at  Laredo  on  the  third  IMonday  of  April 
and  second  Monday  of  Xovember ;  at  Brownsville  on  the  second 
Monday  of  j\Iay  and  the  first  ]\Ionday  of  December  •^  and  at  Vic- 
toria twice  in  each  year,  tlie  times  to  be  fixed  by  the  judges  of  said 
courts  "of  which  they  shall  make  publication  and  give  due  notice."^ 
In  the  northern  district  terms  of  circuit  and  district  courts  are  held 

11  Act  Feb.  2,  1899.  c.  S.3.  30  Stat.  i^R.   S.   §§   572,   658,  U.   S.  Comp. 

814.  U.  S.  Comp.  Stat.  IflOl,  p.  418;  Stat.  1901.  p.  473.  538. 

act  Apr.   28.   1904.   c.    1797.   33    Stat.  i^Seo  post.  §  361. 

545,  U.  S.   Comp.  Stat.   1905.   p.   110.  iTAnt<>.    §    314. 

i2Act    June   18.    1906,   c.    3.341.    34  isR.   S.   §   666,  U.   S.   Comp.   Stat. 

Stat.  298.  1901,  p.  544. 

i3Act   June   18,    1906.   c.    3341,   34  lAct  Mar.  11.  1902.  c.  183.  32  Stat. 

Stat.  298.  66,  et  seq.   U.   S.   Comp.   Stat.   1905, 

14 Act    June    20,    1S7S.    c.    359.    20  p.  117. 

Stat.   235.   U.    S.    Comp.    Stat.    1901,  2Act.    Apr.    18,    1906.    c.    1036,    34 

p.  414.  Stat.  121. 

473 


§   348  TERMS   OF    FEDERAL    COURTS.  [Code   Fed. 

at  Dallas,  in  the  county  of  Dallas,  on  the  second  Monday  of  Jan- 
uary and  the  first  Monday  of  May ;  at  Fort  Worth,  in  the  county  of 
Tarrant,  on  the  first  Monday  of  N"ovember  and  the  second  Monday  of 
March ;  at  Abilene,  in  the  county  of  Taylor,  on  the  first  jMonday  of 
October  and  the  second  Monday  of  April;  and  at  San  Angelo, 
in  the  county  of  Tom  Green,  on  the  third  Monday  of  October  and 
the  fourth  Monday  of  April.  In  the  eastern  district  terms  of  cir- 
cuit and  district  courts  are  held  at  Tyler,  in  the  county  of  Smith, 
on  the  fourth  ]\Ionday  of  January  and  the  fourth  Monday  of  April ; 
at  Jefferson,  in  the  county  of  IMarion.  on  the  first  ]\Ionday  of  Octo- 
ber and  the  third  ^londay  of  February ;  at  Beaumont,  in  the  county 
of  Jefferson,  on  the  third  Monday  of  November  and  the  first  Mon- 
day of  April;  at  Sherman,  in  the  county  of  Grayson,  on  the  first 
j\Ionday  of  January  and  the  third  Monday  of  May;  and  at  Paris, 
in  the  county  of  Lamar,  on  the  fourth  Monday  of  October  and 
the  second  ]\Ionday  of  March.  In  the  Avestern  district  terms  of 
circuit  and  district  courts  are  held  at  Del  Eio  twice  eacli  year,  at 
times  to  be  fixed  by  the  judges,  by  due  notice  given  and  by  publica- 
tion ;2  at  Austin,  in  the  county  of  Travis,  on  the  fourth  IMonday  of 
January  and  the  second  Monday  of  June ;  at  Waco,  in  the  county  of 
McLennan,  on  the  second  Monday  of  November  and  the  fourth 
Monday  of  February;  at  San  Antonio,  in  the  county  of  Bexar,  on 
the  third  Monday  of  December  and  the  first  Monday  of  May ;  and 
at  El  Paso,  in  the  county  of  El  Paso,  on  the  first  Monday  of  Octo- 
ber and  the  first  Monday  of  April.-*  By  R.  S.  §  ~^79  the  district 
judges  in  Texas  and  a  few  other  States,  are  authorized  to  ad- 
journ court  "from  time  to  time  to  meet  the  necessities  or  convenience 
of  the  business."^ 
Author's  section. 

§  348.  — Utah,  at  Ogden  and  Salt  Lake. 

Circuit  court  terms  for  the  Utah  district  are  held  at  Ogden,  for 
ihe  northern  division,  on  the  first  Mondays  in  March  and  Septem- 
ber ;  and  at  Salt  Lake,  for  the  central  division,  on  the  first  Mondays 
in  May  and  December.'^  District  court  terms  are  held  at  Salt 
Lake  City  on  the  second  Monday  in  April  and  November  and  at 

3Act  June  ;}.  1006,  c.  30G3.  34  Stat.  5R.  S.  §  579,  U.  S.  Comp.  Stat. 
226.  1901.  p.  477. 

■•Act  Mar.  11.  1902.  c.  183,  §§  11-  '^Act  Mar.  2,  1897,  c.  366,  29  Stat. 
14,  32  Stat.  66  et  seq.  621. 

474 


i'rocedure]  VERMONT— VIRGINIA.  §   350 

Ogden  City  on  the  second  Monday  in  March  and  September  of  each 
A'ear:    Provided,  That  other  terms  of  said  court  may  be  held  at 
said  Salt  Lake  City  and  Ogden  City  and  at  other  places  in  said 
district  when  deemed  necessary  by  the  judge.^ 
Author's  section. 

§  349.  —Vermont. 

Circuit  court  terms  for  the  Vermont  district  are  held  at  Bur- 
lington on  the  fourth  Tuesday  in  February;  at  Windsor  on  the 
fourth  Tuesday  in  July;  and  at  Rutland,  on  the  third  day  of  Oc- 
tober.i"  District  court  terms  are  held  at  Burlington  on  the  fourth 
Tuesday  in  February;  at  Windsor  on  the  Monday  following  the 
fourth  Tuesday  in  July;  and  at  Rutland  on  the  sixth  day  of  Octo- 
ber.^ ^  One  of  the  stated  terms  above  specified  may  in  each  year 
when  adjourned  be  adjourned  to  meet  at  Montpelier;^^  ^nd  there 
is  a  similar  provision  for  adjournment  to  ISTewport.^^ 
Author's  section. 

R.  S.  ?§  572  and  658  provide  that  if  a  term  day  specified  fall  on  Sunday 
the  term  shall  commence  the  next  day. 

§  350.  —  Virginia,  regular  and  special  terms. 

In  the  eastern  district  of  Virginia  terms  of  circuit  and  district 
court  are  held  at  Richmond  on  the  first  Mondays  of  April  and 
October;  at  N'orfolk  on  first  Mondays  of  May  and  November;  and 
at  Alexandria,  on  first  Mondays  of  January  and  July.^^  In  the 
western  district  the  times  and  places  for  holding  district  and  cir- 
<'uit  courts  are  as  follows,  to  wit;  At  Charlottesville,  the  second 
Monday  in  January  and  the  first  Monday  in  July ;  at  Roanoke,  the 
third  Monday  in  February  and  the  third  Monday  in  June ;  at  L}Tich- 
burg,  on  the  Tues^day  after  tlie  second  Monday  in  ^Mareh  and  Sep- 
tember; at  Danville,  on  the  Tuesday  after  the  second  ^Monday  in 
-Vpril  and  Xovember;  at  Abingdon,  on  the  Tuesday  after  the  first 
Monday  in  ^lay  and  October;  at  Harrisonburg,  on  the  Tuesday  after 
the  first  Monday  in  June  and  December;  at  Big  Stone  Gap,  on  the 

■*A<t  Feb.  in.  190:3.  c.  706.  32  Stat.  i^Act  July  ,3.  1804,  c.  123,  28  Stat. 
S41.  99,  U.  S.  Comp.  Stat.  1901,  p.  430. 

loR.  S.  §  058,  U.  S.  Comp.  1901,  isAct  Apr.  22,  1904,  c.  1419,  33 
■T'.  539.  Stat.  249.  U.  S.  Comp.  Stat.  1005,  p. 

iiR.  S.   §  572,   U.  S.   Comp.   Stat.    122. 
li'O),   p.  474.  15R.   S.   §§  658,  572,  U.   S.  Comp. 

Stat.  1901,  p.  474,  540. 
475 


§   351  TERMS   OF    KEl'KKAL    ('(HIITS.  [Code   Fed. 

fourtli  Monday  in  January  and  the  second  ^londay  in  Au^ju.st.^* 
"In  each  of  the  districts  of  A'ir^^inia  .  .  .  tlic  circuit  court 
may  order  special  terms,  and  direct  tlie  grand  or  petit  jury,  or  botli, 
to  attend  the  same,  hy  an  order  to  be  entered  of  record  twentv 
days  before  the  day  on  whicli  such  special  term  is  to  convene; 
])rovided.  that  no  sjiecial  term  of  such  circuit  courts  shall  be  ap- 
pointed in  any  of  the  said  disti'icts,  exce]it  by  and  with  the  con- 
currence and  consent  of  the  circuit  judge." i" 
Author's  section. 

The  act  of  1800  fixinj;  terms  in  the  western  district  provided  that  "here- 
after" the  circuit  and  district  courts  shall  be  held  at  the  places  named, 
•'instead  of  at  the  times  now  provided  by  law."  This  would  seem  to  apply 
to  regular  terms  and  hence  not  to  repeal  the  provision  of  R.  S.  §  668, 
((noted  above,   as   to   special  circuit  court  terms  in  Virginia   districts. 

§  351.  —  Washington. 

In  the  eastern  district,  regular  terms  of  both  circuit  and  dis- 
trict courts  are  held  at  Spokane  on  the  first  Tuesday  in  Septonil)cr 
and  April ;  at  Walla  Walla  on  the  first  Tuesdays  in  December  and 
June;  at  J^orth  Yakima  on  the  first  Tuesdays  in  May  and  October. 
In  the  western  district  regular  terms  are  held  at  Seattle  on  the  first 
Tuesdays  in  November  and  ]\Iay ;  and  at  Taeoma  on  the  first  Tues- 
days in  February  and  July.  It  is  specially  provided  that  the  "terms 
of  said  courts  shall  not  be  limited  to  any  particular  number  of 
days,  nor  shall  it  be  necessary  to  adjourn  by  reason  of  the  inter- 
vention of  a  term  elsewhere:  but  tlie  court  intervening  may  be  ad- 
journed until  the  business  of  the  court  in  session  is  concluded.""^'' 
Author's  section. 

§  352  — West  Virginia. 

In  the  northern  district  of  West  Virginia  terms  of  circuit  and 
district  courts  are  held  at  Martinsburg.  on  the  second  Tuesday  in 
May;i  at  Wheeling,  on  the  first  Tuesday  of  April  and  third  Tues- 
day of  September;  at  Clarksburg  on  the  third  Tuesday  of  April 
and  first  Tuesday  of  October:  and  at  Martinsburg  on  tlie  third 
Tuesdav  of  October.     A  term  of  the  circuit  court  is  held  at  Parkers- 


i6Act  Feb.  28,  1906,  c.  3576,  34  i9Act  Mar.  2,  1905,  c.  1305.  33  Stat. 
Stat.  546.  amending  act  of  Feb.  3,  825.  U.  S.  Comp.  Stat.  1905.  pp.  128, 
1903.  c.  398.  32  Stat.  794.  129. 

17R.  S.  §  668,  U.  S.  Comp.  Stat.  lAct  Feb.  24,  1904.  c.  163,  33  Stat. 
1901,  p.  544.  ."lO.  U.  S.  Comp.  Stat.  1905,  p.  130. 

476 


Procedure]  WISCONSIN  TERMS.  §  353 

burg  on  the  second  Tuesdays  of  January  and  June.  In  the  south- 
ern di-strict  terms  of  circuit  and  district  court  are  held  at  Lewis- 
burg  on  the  second  Tuesday  in  February  ;2  at  Huntington,  the 
first  Tuesday  in  April  and  the  first  Tuesday  after  the  third  Mon- 
day in  k^eptember ;  at  Bluefield,  the  first  Tuesday  in  May  and  the 
third  Tuesday  in  October;  at  Charleston,  the  first  Tuesday  in  June 
and  the  third  Tuesday  in  November.^  An  act  of  1903*  provides 
that  "the  regular  term"  of  the  district  court  in  the  southern  dis- 
trict shall  be  held  at  Addison  on  the  first  Monday  in  September. 
Terms  are  not  limited  to  any  particular  number  of  days  nor  is  it 
necessary  to  adjourn  because  a  term  elsewhere  intervenes;  but  the 
latter  shall  be  adjourned  until  the  business  of  the  court  in  session 
is  concluded.-^  By  E.  S.  §  584  quoted  elsewhere*^  the  district 
court  clerks  in  Tennessee  are  given  power  to  adjourn  a  term  of 
court  for  nonattendance  of  the  judge. 
Author's  section. 

Tlie  title  of  the  act  of  1903  as  to  the  Addison  terra  is  "An  act  to  estab- 
lish a  regular  term  of  United  States  district  court  in  Addison,.  West  Vir- 
ginia," and  hence  the  act  should  not  be  construed  as  repealing  prior  stat- 
utes as  to  terms  elsewhere  in  the  southern  district  because  providing  that 
■'"the  regular  term"  be  at  Addison. 

§  353.  —  Wisconsin,  regular  and  special  terms. 

In  the  eastern  district  of  Wisconsin  terms  of  circuit  and  district 
court  are  lield  at  Milwaukee,  on  the  first  Mondays  of  January  and 
October;  at  Oshkosh  on  the  second  Tuesday  of  June;  and  at  Green 
Bay  the  first  Tuesday  in  April.^  In  the  western  district  terms  of  cir- 
cuit and  district  courts  are  held  at  iladison  on  the  first  Tuesday 
in  December;  at  Eau  Claire  on  the  first  Tuesday  in  June;  at  La 
Crosse  on  the  third  Tuesday  in  September;^  and  at  Superior,  the 
third  Tuesday  in  June.^*^  Tbo  district  courts  in  both  districts 
are  required  to  be  open  at  all  times  for  the  purpose  of  hearing  and 
deciding  admiralty  causes  so  far  as  that  can  be  done  without  a 
jury.ii     The  provisions  of  Ii.  S.  §  668  quoted  above  as  governing 

2Act    Apr.    28,    in04.    c.    1S02.    3.3  6Ante.    §    314. 

Stat.   548,    U.    S.    Conip.    Stat.    1905,  ^Act  Mar.  28,  in04,  c.  8U).  33  Stat, 

p.  131.  152,  U.  S.  Comp.  Stat.   1905,  p.   131. 

sAct  .June  4,  1902.  c.  989,  32  Stat.  9Act  Aug.  5,  1880.  c.  932,  24  Stat. 

304.  337,  U.  S.   Comp.  Stat.  1901,  p.  443. 

*Act  .Tan.  31.  1903,  c.  340,  32  Stat.  lOAct  May  20.  1900,  c.  591.  31  Stat. 

791.  219.  U.  S.   Comp.   Stat.   1901,  p.  444, 

5Act  Jan.  22,  1901,  c.  10.5,  31  Stat.  nR.   S.    §   576,  U.  S.   Comp.   Stat. 

737,  U.  S.  Comp.  Stat.  1901,  p.  442.  1901.   p.  470. 

477 


§   354  TERMS   OF    FEDERAL   COURTS.  [Code  Fed. 

the  holding  of  special  circuit  court  terms  in  Yirginia,^^  governs  alsa 
the  holding  of  such  terms  in  Wisconsin. 
Aiitlior's  section. 

§  354.  — Wyoming,  regular  and  additional  terms. 

In  the  district  of  Wyoming,  terms  of  circuit  and  district  court 
are  held  at  Cheyenne,  on  the  second  Monday  of  May  and  ISTovem- 
ber;^^  at  Evanston,  on  the  second  Tuesday  in  July/^  and  at  Sheri- 
dan one  session  annually.  Additional  terms  of  circuit  and  district 
court  may  be  held  at  any  other  place  within  the  State  of  Wyoming 
or  the  Yellowstone  National  Park  at  such  dates  as  the  said  courts 
may  order.*  ^ 

Author's  section. 

§  355.     General  provision  as  to  special  circuit  court  sessions. 

In  the  districts  not  mentioned  in  the  five  preceding  sections^ 
[i.  e.,  R.  S.  §§  664-G68,  dealing  Avith  special  circuit  court  terms 
in  California,  Indiana,  Kentucky,  Mississippi,  North  Carolina,  Ne- 
vada, Oregon,  Tennessee,  Virginia  and  Wisconsin]  the  presiding 
judge  of  any  circuit  court  may  appoint  special  sessions  thereof, 
to  be  held  at  the  places  where  the  regular  sessions  are  held. 
R.  S.  §  669,  U.  S.  Comp.  Stat.  1901,  p.  545. 

As  the  above  provision  refers  to  districts  existing  when  the  Revised 
Statutes  were  adopted,  it  does  not  seem  broad  enough  to  authorize  special 
circuit  court  sessions  to-day  in  any  district  created  since  their  adop- 
tion.    Special   sessions  are  not  required  to  be  of  any  particular  length. 1 8 

§  356.  Business  that  may  be  transacted  at  special  circuit  court 
sessions. 
At  any  special  term  of  a  circuit  court  in  any  district  in  Indiana, 
Kentucky,  Missouri,  North  Carolina,  A^irginia,  and  Wisconsin,  any 
business  may  be  transacted  which  might  be  transacted  at  any  reg- 
ular term  of  such  court.  At  any  special  term  of  a  circuit  court  in 
any  other  district,  it  shall  be  competent  for  the  court  to  entertain 
jurisdiction  of  and  to  hear  and  decide  all  cases  in  equity,  cases  in 
error  or  on  appeal,  issues  of  law,  motions  in  arrest  of  judgment, 

12 Ante.  §  350.  leAct  May  7,  1894,  c.  72,   §   6.  28 

i4Act  July  5,  1892.  c.  145,  §  8.  27  Stat.    75,    U.    S.    Comp.    Stat.    1901, 

Stat.    73,    U.    S.    Comp.    Stat.    1901,  p.   1564. 

p.  1446.  isPitman  v.  United  States,  45  Fed. 

isAct   April    13,    1906,   c.   1619,   34  159. 

Stat.  111. 

478 


I'locedure]  SPECIAL    ClUMINAL    SESSION.  §   358- 

motion  for  a  new  trial,  and  all  other  motions,  and  to  award  exe- 
cutions and  other  final  process,  and  to  do  and  transact  all  other 
business,  and  direct  all  other  proceedings,  in  all  causes  pending 
in  the  circuit  court,  except  trying  any  cause  by  a  jury,  in  the 
same  way  and  with  the  same  effect  as  the  same  might  be  done  at 
any  regular  session  of  said  court. 

R.  S.   §  670,  U,  S.  Comp.  Stat.  1901,  p.  545. 

Under  this  and  the  preceding  section  a  motion  to  remand  may  be  prop- 
erly entertained.  2  0 

§  357.     Special  circuit  court  sessions  for  criminal  cases. 

Any  circuit  court  may,  at  its  own  discretion,  or  at  the  discretion 
of  the  Supreme  Court,  hold  special  sessions  for  the  trial  of  criminal 
causes. 

R.  S.  §  661,  U.  S.  Comp.  Stat.  1901,  p.  542. 

This  provision  was  originally  enacted  in  1789.1  Earlj'  cases  hold  that 
the  court  may  hear  not  only  cases  existing  at  the  time  of  the  ordering  of 
the  special  session,  but  also  those  arising  subsequently, 2  but  that  no  cause 
can  be  heard  which  was  pending  at  the  last  session. 3 

§  358.     Special  circuit  criminal  sessions  near  place  of  alleged 
offense. 

The  Supreme  Court,  or,  when  that  court  is  not  sitting,  anv  cir- 
cuit justice  or  circuit  judge,  together  with  the  judge  of  the  proper 
district,  may  direct  special  sessions  of  a  circuit  court  to  be  held, 
for  the  trial  of  criminal  causes,  at  any  convenient  place  within  the 
ilistrict  nearer  to  the  place  where  the  offenses  are  said  to  be  com- 
mitted than  the  place  appointed  by  law  for  the  stated  sessions.  The 
clerk  of  such  court  shall,  at  least  thirty  days  before  the  commence- 
ment of  such  special  session,  cause  the  time  and  place  for  holding 
it  to  be  notified,  for  at  least  three  weeks,  consecutively,  in  one  or 
more  of  the  newspapers  published  nearest  to  the  place  where  it  is 
to  be  held.  All  process,  writs,  and  recognizances  respecting  juries, 
witnesses,  bail,  or  otherwise,  which  relate  to  the  cases  to  be  tried 
at  such  special  session,  shall  be  considered  as  belonging  to  such  ses- 

2  0Kansias  City,  etc.  R.  Co.  v.  Lum-  '^lemorandum.  4  Cr.  C.  C.  337. 
her  Co.  37  Fed".  3.  Fed.  Cas.  No.  0.411.    See  also.  United 

lAct  Sept.  24.  1789,  c.  20.  §  5.  1  States  v.  Cornell,  2  Mason,  91,  Fed. 
Stat.  75.  Cas.  No.  14,868. 

zUnited  States  v.  Williams,  4  Cr. 
C.  C.  379,  Fed.  Cas.  No.  16,712. 

479 


§  359  TERMS   OF    FEDERAL   COURTS.  [Code  Fed. 

sions,  in  the  same  manner  as  if  the_y  had  been  issued  or  taken  in 
reference  thereto.  Any  such  session  may  be  adjourned  from  time  to 
time  to  any  time  previous  to  tlie  next  stated  term  of  the  court; 
and  all  business  depending  for  trial  at  any  special  session  shall, 
at  the  close  thereof,  be  considered  as  removed  to  the  next  stated 
term. 

R.  S.  §  062,  U.  S.  Comp.  Stat.  1901,  p.  542. 

This  provision,  which  includes  capital  cases,*  regards  the  place  of  trial 
while  the  preceding  section  regards  the  time."  It  vests  the  court  with 
discretion  and  a  change  in  the  place  of  trial  will  not  be  uuide  when  it 
works  an  inconvenience. 6  The  order  of  a  special  session  may  be  made 
by  the  judge  out  of  court.** 

§  359.     General  provision  as  to  special  district  court  terms. 

A  special  term  of  any  district  court  may  be  held  at  the  >anu>  place 
where  any  regular  term  is  held,  or  at  such  other  place  in  the  dis- 
trict as  the  nature  of  the  business  may  require,  and  at  such  time 
and  upon  such  notice  as  may  be  ordered  by  the  district  judge.  And 
any  business  may  be  transacted  at  such  special  term  which  might 
be  transacted  at  a  regular  term. 

R.  S.  §  581,  U.  S.  Comp.  Stat.  1901,  p.  477. 

§  360.  Monthly  adjournments  of  district  court  for  criminal 
causes. 
District  courts  shall  hold  monthly  adjournments  of  their  regular 
terms,  for  the  trial  of  criminal  causes,  when  their  business  requires 
it  to  be  done,  in  order  to  prevent  undue  expenses  and  delays  in  such 
cases. 

R.  S.  §  578,  U.  S.  Comp.  Stat.  1901,  p.  476. 
The  above  provision  was  enacted  in  1842.9 

§  361.     Intermediate  district  court  terms  in  California,  Iowa  and 
Tennessee. 

Whenever  the  judge  of  any  district  court  in  the  districts  of 
California,  Iowa,  and  Tennessee  fails  to  hold  any  regular  term 
thereof,  it  shall  be  his  duty,  if  it  appears  that  the  business  of  the 

•iUnited  States  v.  Cornell,  2  Mason,  "United  States  v.  Williams,  4  Cr. 
m,  Fed.  Cas.  Xo.  14,808.  C.  C.  372.  Fed.  Cas.  ]So.  16,712. 

sUnited  States  v.  Williams,  4  Cr.  sAct  Aug.  23.  1842,  c.  188,  §  3, 
C.  C.  372.  Fed.  Cas.  No.  16,712.  5  Stat.  517. 

sUnited    States    v.    Insurgents,    3 
Dall.  513.  Fed.  Cas.  No.  15.442. 

480 


I 


Procedure]  ADJOURNMENT   OF    CIRCUIT   COURT.  §   363 

court  requires  it,  to  hold  an  intermediate  term.  Such  intermediate 
term  shall  be  appointed  by  an  order  under  his  hand  and  seal,  ad- 
dressed to  the  clerk  and  marshal  at  least  thirty  days  previons 
to  the  time  fixed  therein  for  holding  it,  and  the  order  shall  be 
published  the  same  length  of  time  in  the  several  newspapers  pub- 
lished within  such  districts  respectively.  And  at  such  intermediate 
term  the  business  of  the  court  shall  have  reference  to  and  be  pro- 
ceeded with  in  the  same  manner  as  if  it  were  a  regular  term. 
R.  S.  §  5S6,  U.  S.  Comp.  Stat.  1901,  p.  479. 

§  362.  Adjournment  of  circuit  court  sessions  in  absence  of 
judges. 
If  neither  of  the  judges  of  a  circuit  court  is  present  to  open  any 
session,  the  marshal  may  adjourn  the  court  from  day  to  day  until 
d  judge  is  present :  Provided,  that  if  neither  of  them  attends  be- 
fore the  close  of  the  fourth  day  after  the  time  appointed  for  the 
commencement  of  the  session,  the  marshal  may  adjourn  the  court 
to  the  next  regular  term. 

R.  S.  §  671,  U.  S.  Comp.  Stat.  1901,  p.  545. 

The  opening  of  the  court  by  the  marshal  under  the  above  provision  is 
a  ministerial  act  only,  and  the  fact  that  it  occurs  on  Sunday  does  not  render 
it  necessarily  void.n 

§  363.     Adjournment  of  circuit  court  by  judge's  written  order. 

If  neither  of  the  judges  of  a  circuit  court  be  present  to  open 
and  adjourn  any  regular  or  adjourned  or  special  session,  either  of 
them  may,  by  a  written  order,  directed  alternatively  to  the  marshal, 
and,  in  his  absence,  to  the  clerk,  adjourn  the  court  from  time  to 
time,  as  the  case  may  require,  to  any  time  before  the  next  regular 
term. 

R.  S.  §  672,  U.  S.  Comp.  Stat.  1901,  p.  546. 

The  words  "any  regular  adjourned  or  special  session"  refer  to  any  day 
at  which  a  court  is  appointed  to  sit.i3  A  "written  order"  has  been  held  to 
include  a  telegraph  but  not  a  telephone  order.i^  Omission  to  make  such 
an  order  does  not  cause  the  term  to  lapse,  but  if  properly  commenced  it 
will  continue  until  final  adjournment,  unless  previously  terminated  by  the 
court  or  by  law. is 

iiPuleston  V.  United  States,  85  i^Schofield  v.  Cattle  Co.  65  Fed. 
Fed.  575.  43.3. 

i3Pitman  v.  Unitea  States,  45  Fed.  i5Idem;  and  see  United  States  v. 
159.  Pitman,  147  U.  S.  669.  37  L.  ed.  324, 

13  Sup.  Ct.  Rep.   425. 
Fed.  Proc— 31.  481 


S   364  TKIJMS    OP    FEDERAL    COURTS.  [Code   Fed. 

§  364.  Adjournment  of  district  court  for  non-attendance  of 
judge. 
If  the  judge  of  any  district  court  is  unable  to  attend  at  the 
commencement  of  anv  regular,  adjourned,  or  special  lerm.  the 
court  may  be  adjourned  by  the  marshal,  by  virtue  of  a  written  order 
directed  to  him  by  tlie  judge,  to  the  next  regular  term,  or  to  any 
earlier  day,  as  the  order  may  direct. 

R.  S.  §  583,  U.  S.  Comp.  Stat.  ]901,  p.  478. 

§  365.     Circuit  court  always  open  in  equity  for  certain  purposes. 

The  circuit  courts,  as  courts  of  equity,  shall  be  deeme  1  always 
open  for  the  purpose  of  filing  any  pleading,  of  issuing  and  return- 
ing mesne  and  final  process,  and  of  making  and  directing  all  in- 
terlocutory motions,  orders,  rules,  and  other  proceedings,  prepara- 
tory to  the  hearing,  upon  their  merits,  of  all  causes  pending  there- 
in. And  any  judge  of  a  circuit  court  may,  upon  reasonable  notice 
to  the  parties,  make  and  direct  and  award,  at  chambers  or  in 
the  clerk's  office,  and  in  vacation  as  well  as  in  term,  all  sucit  process, 
eommissions,  orders,  rules,  and  other  proceedings,  whenever  the 
same  are  not  grantable,  of  course,  according  to  the  rules  and  prac- 
tice of  the  court. 

R.  S.  §  6.38.  U.  S.  Comp.  Stat.  1901,  p.  519. 

An  act  of  1890  provides  that  the  circuit  court  shall  always  be  opeii  fir 
the  purpose  of  hearing  appeals  from  the  board  of  general  appraisers. it 
The  district  courts  also  are  always  open  in  admiralty  and  equity  for  cer- 
tain purposes. 18  Under  this  section  a  motion  for  an  attachment  for  con- 
tempt in  equity  may  be  made  at  any  time.19  The  first  equity  rule,  pro- 
mulgated by  the  Supreme  Court  in  1842,2  0  pro\'ides  as  follows:  '"The  circuit 
courts,  as  courts  of  equity,  sliall  be  deemed  always  open  for  the  purpose 
of  filing  bills,  answers  and  other  pleadings  for  issuing  and  returning  mesne 
and  final  process  and  commissions,  and  for  making  and  directing  all  inter- 
locutory motions,  orders,  rules  and  other  proceedings,  preparatory  to  the 
hearing  of  all  causes  vipon  their  merits." 

§  366.  —  always  open  for  certain  commerce  proceedings. 

For  tlie  purposes  of  this  act,  [i.  e.,  the  Commerce  act  of  1887 
as  amended  1889]  excepting  its  penal  provisions,  the  circuit  courts 
of  the  United  States  shall  be  deemed  to  be  always  in  session. 

Part  of  §  16,  act  Feb.  4,  1887,  c.  104,  24  Stat.  384,  as  amended  June  29, 
1906.  e.  3591,  34  Stat.  59*2. 

I'Post.    §    .367.  i9Vo.se  v.  Reed,  1  Woods,  647,  Fed. 

isPost.  §  368.  Gas.  No.  17.011. 

2 "See  post,  §  802. 
482 


I'loceame]  TERMS    OF    FEDERAL   COURTS.  S   369 

The  above  is  the  concluding  provision  of  §  16  of  the  act  of  1887  as 
amended  in  1906.  The  other  portions  are  given  in  a  subsequent  chapter 
of  this  code.i 

§  367.  —  always  open  for  appeals  from  general  appraisers. 

For  the  purposes  of  this  section  [i.  e.,  providing  appeals  from  the 
Board  of  General  Appraisers]^  the  circuit  courts  of  the  United 
States  shall  be  deemed  always  open. 

Part  of  §  15,  act  June  10,  1890,  c.  407,  26  Stat.  138,  U.  S.  Comp.  Stat. 
1901,  p.  1934. 

§  368.     District  court  always  open  in  admiralty  or  equity  for  cer- 
tain purposes. 

The  district  courts,  as  courts  of  admiralty,  and  as  courts  of 
equity,  so  far  as  equity  jurisdiction  has  been  conferred  upon  them. 
shall  be  deemed  always  open,  for  the  purpose  of  filing  any  plead- 
ing, of  issuing  and  returning  mesne  and  final  process,  and  of  mak- 
ing and  directing  all  interlocutory  motions,  orders,  rules,  and  other 
proceedings,  preparatory  to  the  hearing,  upon  their  merits,  of  all 
causes  pending  thei-ein.  And  any  district  judge  may,  upon  rea- 
sonable notice  to  the  parties,  make,  and  direct  and  award,  at 
chambers,  or  in  the  clerk's  office,  and  in  vacation  as  well  as  in  tei-ni. 
all  such  process,  commissions,  orders,  rules,  and  other  proceedings, 
whenever  the  same  are  not  grantable,  of  course,  according  to  the 
rules  and  practice  of  the  court. 

R.  S.  §  574,  U.  S.  Comp.  Stat.  1901,  p.  475. 

This  section  was  enacted  in  1842.5  Its  provisions  are  substantially  the 
same  as  those  provided  for  the  circuit  court  under  the  first  equity  rule« 
and  under  R.  S.  §  638.'  A  session  of  the  court  is  held  whenever  business, 
as  described  by  this  provision  or  by  R.  S.  §  638,  is  transacted  by  a  judge 
between  regular  terms. « 

§  369.     Alteration  of  terms  not  to  affect  suit  or  process. 

No  action,  suit,  proceeding,  or  process  in  any  district  [or  circnit]^^ 
court  shall  abate  or  be  rendered  invalid  by  reason  of  any  act  chang- 
ing the  time  of  holding  such  court;  but  the  same  shall  be  deemed 

iPost,  §§  134.5.  et  seq.  7Ante.  §  365. 

3See  ante.  §  140.  sButler  v.  United  States,  87   Fed. 

5 Act   Aug.  23.  1842.  c.  188.   §  5,  5  655. 

Stat.   517.  '  lOR.  S.   §   660,  U.  S.   Comp.  Stai. 

8 Central  Trust  Co.  v.  Coal  etc.  Co.  1901.   p.  542. 
60  Fed.   15. 

483 


§  370  TERMS   OF    FEDERAL   COURTS.  [Code   Fed. 

to  be  returnable  to,  pending,  and  trialde  in  the  terms  established 
next  after  the  return  day  thereof. 

R.  S.  §  573,  U.  S.  Comp.  Stat.  li)01,  p.  475. 

§  370.     Causes  not  discontinued  by  new  term. 

When  the  trial  or  hearing  of  any  cause,  civil  or  criminal,  in  a 
circuit  or  district  court,  has  been  commenced  and  is  in  progress 
before  a  jury  or  the  court,  it  shall  not  be  stayed  or  discontinued 
by  the  arrival  of  the  time  fixed  by  law  for  another  session  of  said 
court;  and  the  court  may  proceed  therein  and  bring  it  to  a  con- 
clusion, in  the  same  manner  and  with  the  same  effect  as  if  another 
stated  term  of  the  court  had  not  intervened. 
R.  S.  §  746,  U.  S.  Comp.  Stat.  1901,  p.  590. 

This  section  was  carried  into  the  Revised  Statutes  from  an  act  of  1855. n 
A  trial  is  commenced  and  is  in  progress  within  the  meaning  of  its  terms  al- 
.though  a  full  jury  is  not  empaneled  before  the  terra  ends. 12 

11  Act  Mar.  2,  1855,  c.  140,  10  Stat.  i2United  States  v.  Lougherty,  13 
G30.  Blatchf.  207,   Fed.   Cas.   No.   15,631. 


4S4 


CHAPTEE  11. 

COURT  RECORDS  AND  PLACES  WHERE  KEPT. 

§  378.     Records  of  Supreme  Court  and  Court  of  Claims. 

§  S79.     Records  of  circuit  court  of  appeals. 

§  380.     Records  of  the  old  court  of   appeals. 

§  381.     Particular   provisions   as   to   circuit   and   district   court   records   in 

various  districts. 
§  382.     General   provision   as  to  distict  court   records. 
§  383.     Transfer  of  records  of  territorial  courts  on  State's  admission. 
§  384.     Duty  of  district  judge  to  demand  territorial  court  records. 
§  385.     Duty  of  clerk  to  keep  indexes  to  records. 
§  386.     Duty  to  keep  bankruptcy  indexes. 
§  387.     Certified  copy  of  original  records  lost  or  destroyed. 
§  388.     Proof  of  substance  of  record  where  no  copy  obtainable. 
§  389.     Record  in  appellate  court  may  replace  lost  record  below. 
§  390.     IMode  of  giving  notice,  and  proof  thereof  in  proceedings  to  restore 

records. 
§  391.     Copies  to  supply  originals  in  cases  where  United  States  are  parties. 

- — force  and  effect  of  copies  substituted  for  lost  originals. 
§  392.     Restoration  of  records  in  cases  where  United  States  are  parties, — 

compensation,  etc. 
§  393.     All  official  records  and  dockets  open  for  investigation. 
§  394.     Records   of   abolished   circuit   court   commissioners. 
§  395.     Records  kept  by  United  States  commissioners. 
§  3Q6.     Affidavit  to  supply  State  court  record  when  certified  copy  refused. 

§  378.     Records  of  Supreme  Court  and  Court  of  Claims. 

The  Supreme  Court  rules  require  the  clerk  to  "reside  and  keep 
the  office  at  the  seat  of  the  national  government"  and  inferentially 
make  him  the  custodian  of  its  records  by  forbidding  "any  original 
record  or  paper  to  be  taken  from  the  court  room,  or  from  the  office, 
without  an  order  from  the  court."^  The  law  requires  the  Court  of 
Claims  to  hold  sessions  at  Washington,-  and  its  rules  make  its 
clerk  there  resident,  custodian  of  its  records. 
Aiithor's  section. 

§  379.     Records  of  circuit  court  of  appeals. 

Rules  of  the  circuit  courts  of  appeals   in  the  several    circuits 

iSee  Supreme  Court  Rule  1  in  ap-         2Ante.    §   .308. 
pendix.  "See  rules  in  appendix. 

485 


S   o80  COl  irr    UKiOitDS.  ICode   Fed. 

require  the  clerk  of  the  court  to  keep  an  otfice  at  the  place  in  the 
circuit  where  the  circuit  coui't  of  ap[)eals  act  requires  an  annual  tenu 
to  be  held  :^  and  to  "carefully  preserve  in  his  office  one  copy  of  the 
printed  record  in  every  case  submitted  to  the  court  for  its  considera- 
tion, and  of  all  printed  motions,  briefs,  and  arguments  filed  there- 
in."^ The  acts  requiring  terms  at  other  places  in  certain  districts 
have  not  required  a  deputy  clerk's  office  at  such  places  or  the  keep- 
ing of  records  there. "^ 
Author's  section. 

§  380.     Kecords  of  the  old  court  of  appeals. 

The  records  and  proceedings  of  the  court  of  appeals,  appointed 
jirevious  to  the  adoption  of  the  present  Constitution,  shall  be  kept 
in  the  office  of  the  clerk  of  the  Supreme  Court,  who  shall  give  copies 
tbereof  to  any  person  requiring  and  paying  for  them  in  the  manner 
provided  by  law  for  giving  copies  of  the  records  and  proceedings 
of  the  Supreme  Court;  and  such  copies  shall  have  like  faith  and 
credit  with  all  other  proceedings  of  said  court. 
R.  S.  §  679,  U.  S.  Comp.  Stat.  1901,  p.  559. 
This  provision  was  enacted  in  1792.*' 

§  381.  Particular  provisions  as  to  circuit  and  dictrict  court  rec- 
ords in  various  districts. 
There  are  a  number  of  special  statutory  provisions  as  to  the  place 
where  circuit  and  district  court  records  shall  be  kept  where  the 
courts  meet  at  more  than  one  place  within  a  district  and  especially 
where  districts  have  been  divided  into  divisions.  In  other  cases  the 
failure  to  make  such  provision  has  resulted  in  the  establishment 
of  depositaries  of  the  records  of  circuit  and  district  courts  without 
specific  statutor}'  authority  which  could  be  produced  here.  Thus, 
the  district  jvidges  are  authorized,  where  court  is  held  at  more  than 
one  place  in  the  district,  to  designate  places  of  keeping  their  records 
where  Congress  has  failed  to  do  so.-*  Directions  for  the  appoint- 
ment of  deputy  clerks  to  reside  at  places  within  a  district  where 
terms  of  court  are  held  are  found  in  the  statutes  regulating  thn 
organization  of  the  Federal  courts  in  many  States,  and  these 
very  strongly  imply  an  intent  on  the  part  of  Congress  to  have  the 

4Ant«  §  309.  8 Act  May.  8,   1792,   §   12,   c.   36,   1 

5 See  Rules  5  and  27  of  tliose  courts    Stat.  279. 
in  Appendix.  aPost,  §  382. 

6See   ante,    §§    310,   311. 

486 


Procednre]  PARTICULAR   PROVISIONS   AS  TO   RECORDS.  §   381    [a] 

records  of  causes  there  cognizable,  kept  at  such  place. ^"^  A  provision 
that  process  in  suits  against  residents  of  certain  counties  shall  l)e 
returnable  to  the  terms  of  court  held  at  a  place  therein,  with  di- 
rections for  terms  of  court  at  that  place,  would  not  necessarily  im- 
ply that  records  should  be  kept  there,  at  least,  in  the  absence  of 
a  provision  requiring  a  deputy  clerk  there  resident.^  ^  In  the  case  of 
California, f^i  Colorado, ^^i  Georgia,f°^  Illinois, f*^'  Indiana,^®^  Ken- 
tucky, "^^^  Michigan,!^"^  Minnesota,'^*'^  Mississippi, ^^^  Missouri,'^!  North 
Carolina, f*"^  Pennsylvania,"^  Tennessee, i^™^  and  Virginia, "^"^  there 
are  more  or  less  complete  provisions  as  to  the  places  of  keeping  court 
records.  The  practitioner  must  often  ascertain  the  status  in  his  own 
State,  district,  and  division  from  a  local  rule  of  court  or  perhaps 
even  from  local  custom.  Aside  from  the  statutory  provisions  on 
the  subject  of  court  records  below  referred  to,  there  have  frequently 
been  special  provisions  temporary  in  character  and  operation,  re- 
quiring that  the  records  in  causes  transferred  to  a  newly  created 
judicial  division  or  district  be  transmitted  to  the  clerk  in  such 
new  district  or  division  to  be  there  proceeded  with.^-  Provisions 
respecting  records  as  evidence  are  contained  in  the  chapter  of 
evidence.^  ^ 

Author's  section. 

[a]     California. 

The  clerks  of  the  circuit  and  district  courts  of  the  northern  district  i>t 
California  retained  the  records  and  files  of  said  courts  when  tiiey  had  juri- 
dicfcion  over  all  of  California  prior  to  its  division  into  two  districts,  at  Ihi- 
city  of  San  Francisco.  They  are  authorized  at  the  request  of  the  district 
judge  of  the  southern  district,  and  at  the  cost  of  the  parties  requiring  the 
same,  to  make  transcripts  of  any  of  the  records,  files  or  papers  of  the  dis- 
trict and  circuit  courts  of  the  United  States  remaining  in  their  offices  and 
of  all  matters  or  proceedings  which  relate  to  or  concern  liens  upon  or  titles 
to  real  estate  situated  in  the  southern  district,  "and  such  transcripts,  when 
so  made  by  either  of  said  clerks,  shall  be  certified  to  be  true  and  correct 
by  the  clerk  making  the  same,  and  the  same,  when  so  made  and  certified 
and  filed  in  the  proper  court,  shall  constitute  the  record  in  such  court,  ami 
shall  be  evidence  in  all  courts  and  places  equally  with  said  originals."i4 
The  act  creating  two  divisions  in  the  southern  district  required  the  clerk's 
oflRce  to  be  in  Ix>s  Angeles,  "where  all  records  for  said  courts  may  be  kept 

lOSee  post.  §  5tJ!K  183.    §    7.    32    Stat.    m.   V.   S.    Comp. 

iiSee  act   as   to   tlie   two  divisions  Stat.    1003.    p.   60. 
in  the  southern  district  of  California.        i3See  post.  §    1777  et  seq. 
Act   Mav   29.    1900.    c.    .")94.    31    Stat.         i^Act  Aug.  -l.  ISSli.  c.  928,  24  Stat. 

219.  U. 'S.  Comp.  Stat.   1901.  p.  320.  30S.   V.   S.  Comp.   Stat.   1901.  p.  324. 

12E.  g.  see  act  March    11,   1902.  c. 

487 


§   381  ,[b]  COURT   RECORDS  [Code  Fed. 

and  all  duties  performed,  but  should,  in  the  judgment  of  the  district  judge 
and  the  clerk,  the  business  of  said  courts  hereafter  warrant  the  employ- 
ment of  a  deputy  clerk  at  Fresno"  then  a  deputy  may  be  appointed  to 
reside  and  keep  his  office  at  Fresno. is 

[bj     Colorado. 

The  act  of  1879  dividing  Colorado  into  three  districts  for  district  court 
purposes  provided  for  keeping  district  court  records  at  Denver,  Pueblo  and 
Del  Norte.i6  The  act  of  1880,  abolishing  the  divisions,  provided  that  the 
records  of  the  district  court  in  the  several  divisions  "shall  be  kept  and  re- 
tained in  the  clerk's  office  of  the  district  court  of  Colorado,"  i.  e.,  at  Den- 
ver.i"  The  act  changing  the  place  of  holding  court  from  Del  Norte  to 
Montrose  provided  for  a  transfer  of  all  records,  files  and  books  of  the 
circuit  and  district  courts  to  Montrose.is 

[c]  Georgia. 

The  only  reference  to  the  place  of  keeping  records,  in  the  statutes  af- 
fecting the  courts  in  Georgia,  is  in  the  provision  for  the  eastern  division 
of  the  northern  district  that  "all  pleadings  and  other  papers  may  be  filed 
in  the  clerk's  office  of  Atlanta."2  0  The  appointment  of  deputy  clerks  for 
divisions  is  made  optional.i 

[d]  Illinois. 

There  are  provisions  for  deputy  clerks  with  offices  at  diflFerent  places 
in  the  northern  and  southern  districts,  where  terms  of  court  are  held: 2 
and  a  provision  that  in  the  southern  district  the  clerks  of  circuit  and  dis- 
trict court  shall  keep  an  office  at  each  place  of  holding  court  and  "shall 
there  keep  the  records,  files  and  documents  pertaining  to  the  court  of 
that  division."3 

[e]  Indiana. 

The  deputy  clerks  appointed  for  the  circuit  and  district  court  offices  at 
Hammond  and  Fort  Wayne  are  required  to  "keep  in  their  offices  such  rec- 
ords as  appertain  to  their  offices,  and  .  .  .  full  records  of  all  actions, 
proceedings  and  judgments  in  said  courts."^  Each  of  the  deputies  for  tlie 
district  court  in  New  Albany  and  Evansville  must  "keep  in  his  office  full 
records  of  all  actions  and  proceedings  in  the  district  court"  held  there. 5 

isAct   Mav  29,   1901,   c.   594.    §    9,        iSee  post,  §  569. 
31  Stat.  220,"^  U.  S.  Comp.  Stat.  1901,        2Post,  §  569. 
p.  328.  3 Act  Mar.   3,   1905,   c.   1427,    §   10, 

i6Act  Feb.  15.  1879,  c.  82.  §  5,  20  33  Stat.  994,  U.  S.  Comp.  Stat.  1905, 

Stat.  293.  p.  92. 

17 Act  Apr.  20,  1880,  c.  58,  21  Stat.        4 Act  Mar.  3.  1881,  c.   154,  §  2,  21 

76.  Stat.  511.  Act  Feb.  14,   1899,  c.  155, 

isAct  Feb.  16.  1903.  c.  5o5,  32  Stat.  §   2.  30  Stat.  836.  U.  S.  Comp.  Stat. 

8,33.  1901,  p.  348.  349. 

2  0Act  Feb.  28,  1901.  c.  621.  31  Stat.        sR.    S.    §    .559.   U.    S.    Comp.    Stat. 

818,  U.  S.   Comp.   Stat.   1901,  p.   341.  1901.   p.  4.53. 

488 


Procedure]  PARTICULAR  PROA-ISIONS  AS  TO  CIRCUIT  COURT.       §   381   [j] 

[f]  Kentucky. 

The  deputy  district  court  clerk  for  the  Owensboro  division  in  Kentucky 
must  "keep  and  preserve  the  records  of  the  court  at  0\vensborough."6 

[g]  Michigan. 

In  the  western  district  the  deputy  clerk  appointed  for  the  circuit  and 
district  courts  held  at  Marquette  must  "keep  in  his  office  full  records  of 
all  actions  and  proceedings  in  the  said  circuit  and  district  courts  for  the 
northern  division  of  said  district  held  at  that  place.""  In  the  eastern  dis- 
trict the  deputy  clerks  of  the  circuit  and  district  courts  at  Bay  City  are 
required  to  keep  "dockets  and  full  records  of  all  actions  and  proceedings" 
of  those  courts  in  the  northern  division  of  the  district.8 

[h]    Minnesota. 

The  clerks  of  the  circuit  and  district  courts  in  Minnesota  and  their 
deputies  are  required  to  keep  the  recordsio  of  those  courts  in  each  division 
at  the  place  appointed  for  the  terms  of  court.n 

[i]     Mississippi. 

Jn  the  northern  district  the  circuit  and  district  court  clerk  must  keep 
an  office  in  each  division  of  the  district  and,  with  his  deputy,  "keep  the 
records,  files  and  documents  pertaining  to  the  court  of  that  division"  at 
the  place  where  court  is  held  therein.12  In  the  southern  district  deputies 
are  required  to  keep  an  office  at  various  places  therein,  but  nothing  is 
said  about  records.is 

[jj     Missouri. 

Jn  Missouri  there  is  a  separate  circuit  and  district  court  in  each  division 
of  the  two  districts  except  the  southwestern  division  of  the  western  dis- 
trict,! 5  hence  for  each  court  there  is  a  clerk  at  St.  Louis,  Hannibal,  St. 
Joseph.  Kansas  City,  Jeffereon  City  and  Springfield,  who  is  required  to 
keep  "the  records,  files  and  documents  pertaining  to  the  court  of  his  divi- 
sion."! 6  The  law  creating  the  southwestern  division  of  the  western  district 
provided  that  all  records  of  that  court  may  be  kept  at  Springfield  except 
when  the  court  is  in  session  at  Joplin  within  the  division,  but  permits  the 
appointment  of  a  deputy  clerk  for  Joplin  and  new  books  and  records  for 
the  courts  there,  when  in  the  district  judge's  opinion  the  business  so  war- 

6Act  Aug.  8.   1888,  c.  792,   §  3,  25  uSee  ante.  §  .330. 

Stat.    300.    U.    S.    Comp.    Stat.  1901,  i2Act   June   15.    1SS2.   c.    218.   §   ^!. 

P-  3(iO.  22    Stat.     102,     U.     S.     Comp.     Stat. 

'Act  June  19.  1878.  c.  326,  §  4.  20  100],  p.  379. 

Stat.   176,   U.   S.    Comp.    Stat.  1901,  isPost.  §  569. 

p.  371.  isAnte.  §  103.  note. 

sAct  Apr.   60.   1894.   c.  66.   §  4.  28  isAct  Feb.  28.  1887,  c.  271.  §  5.  24 

Stat.    07.    U.    S.    Comp.    Stat.  1901.  Stat.    426.    U.    S.    Comp.   Stat.    1901. 

p.  374.  p.  .387.     The  clerks  at  St.  Tx)uis  and 

if.'Vct   Apr.   26,   1890,   c.    167,    §    5,  Jefterson  Citv  w<^re  established  prior 

26  Stat.  73,  U.  S.  Comp.  Stat.  1901,  to  this  act  under  tlie  earlier  law  di- 

P-  376.  viding  Missouri  into  two  districts. 

489 


S   381    [k]  COURT    REf!ORDS  [Code    Fed. 

rants. 1'  A  similar  provision  was  made  wlien  the  southoa.stern  division  of 
the  eastern  district  was  created  with  headquarters  at  Cape  (Jirardean.l* 
There  is  a  provision  of  an  act  of  1887  reorganizing  and  dividing  the  Mis- 
souri districts,  requiring  the  clerk  to  certify  the  record  in  any  case  trans- 
ferred to  another  division  and  specifying  his  fees,  but  it  is  not  clear  that 
it  applies  to  any  except  pending  causes. 1 9 

[k]     North  Carolina. 

In  the  eastern  district  a  circuit  and  district  court  clerk  was  recently 
authorized  for  Wilmington,  in  addition  to  the  one  at  Raleigh,  who  has  "the 
custody  and  control  of  the  records  of  said  courts"  at  Wilmington.-' i  Clerks 
at  Wilkesboro  and  Washington,  N.  C,  were  provided  for  by  an  act  estab- 
lishing terms  at  those  places. i 

[1]     Pennsylvania. 

The  act  creating  a  third  district  in  Penn.sylvania.  known  as  the  middle 
district,  provided  for  the  enforcement  of  judgment  and  other  liens  in  the 
new  district  based  upon  proceedings  in  one  of  the  old  districts  by  the  ob- 
taining of  certified  copies  thereof  and  entering  them  in  the  court  of  the 
middle  district. 2  The  act  of  1902  provided  that  in  the  middle  district,  the 
records  of  circuit  and  district  courts  should  be  kept  at  Scranton.  "but  the 
said  courts  may  provide  by  rtile  for  the  keeping  of  provisional  or  tem- 
porary records  at  Harrisburg  and  Williamsport  of  such  actions,  suits  or 
proceedings  as  may  be  there  entered  or  brought.  Nothing  herein  con- 
tained, however,  shall  be  construed  as  requiring  the  removal  to  Scranton 
of  the  records  of  the  late  courts  of  the  western  district  at  Williamsport, 
but  the  same  shall  there  remain  as  heretofore,  under  the  control  and  direc- 
tion of  the  courts  of  the  middle  district,  as  provided  in  the  ninth  section 
of  the  act,  to  which  this  is  an  amendment,  and  in  the  charge  and  custody 
of  the  respective  clerks  thereof. "s 

[m]     Tennessee. 

The  act  creating  tlie  northeastern  division  of  the  eastern  district  specific- 
ally provides  that  the  clerk's  office  and  records  for  said  division  may  be  kept 
at  Knoxville.  but  that  new  books  and  records  may  be  opened  in  Greeneville 
and  a  deputy  there  appointed  if  the  district  judge  deem  that  business  so 
warrants. <     There  is  no  other  statutory   provision  as  to  records   in  Ten- 

I'Act   Jan.     24.    1901.    c.    164.  §  3.  852:    Act  Mar.    3.    1905.    c.    1437.    .33 

31  Stat.  73tJ.  U.  S.  Comp.  Stat.  1901,  Stat.  1004,  U.  S.  Comp.  Stat.  inO.i.  p. 

]).  390.  106.  107. 

isAct   Jan.   31,    1905,   c.    287,    §    4,         -'Act   Mar.  2.   1901.  c.  801.   §  7,  31 

33  Stat.  627.  U.  S.  Comp.  Stat.  1905,  Stat.    881,    U.    S.    Comp.    Stat.    1901, 

|).  103.  p.  407. 

i9Act   Feb.  28.  1887.   §   4.  24  Stat.        3Act  June  30.  1902.  c.  1.335.  32  Stat. 

425.  549.  r.  S.  Comp.  Stat.  1905.  p.  108. 

2iAet    Apr.    15,    1902.    c.    508.    32        4Act    Feb.   7.    1900.   c.    10.    §    3.   31 

Stat.  106.  Stat.   5,   U.   S.  Comp.   Stat.   1901,   p. 

lAct  Feb.  23,  1903.  c.  749.  33  Stat.  419. 

490 


I'loeedure]  AND   PLACES    WHERE    KEPT.  {   383 

nessee.  though  there  are  several  provisioos  a3  to  deputy  clerks  for  different 
■divisions. 5 

[n]     Virginia. 

In  the  eastern  district  of  Virginia  tlie  records  of  the  district  court  are 
required  by  act  of  1899,s  to  be  kept  at  the  respective  places  where  the  said 
■court  meets  therein."  In  establishing  term?  at  Roanoke  City  and  Bigstone 
r.ap  deputy  clerks  to  reside  at  those  places  were  provided  and  required  to 
take  "charge  and  custody  of  the  court  records  and  papers.''^ 

§  382.     General  provision  as  to  district  court  records. 

The  records  of  a  di-strict  court  shall  be  kept  at  the  place  where 
the  court  is  held.  When  it  is  held  at  more  than  one  place  in  any 
district,  and  the  place  of  keeping  the  records  is  not  specially  pro- 
vided by  law,  they  shall  be  kept  at  either  of  the  places  of  holding 
the  court  which  may  be  designated  by  the  district  judge. 
R.  S.  §  562.  U.  S.  Comp.  Stat.  1001,  p.  4.54. 

This  section  was  carried  into  the  Revised  Statutes  from  the  judiciary  act 
of  17Sf».9 

§  383.     Transfer  of  records  of  Territorial  courts  on  State's  ad- 
mission. 
When  any  Territory  is  admitted  as  a  State,  and  a  district  court 
is  established  therein,  all   the  records  of  the  proceedings  in  the 
several  cases  pending  in  the  court  of  appeals  of  said  Territory  at 
the  time  of  such  admission,  and  all  records  of  the  proceedings  in 
the  several  cases  in  wliich  judgments  or  decrees  had  been  rendered 
in  said  territorial  court  before  that  time,  and  from  which  ^^■rits 
of  error  could  have  been  sued  out  or  appeals  could  have  been  taken, 
or  from  which  writs  of  error  had  been  sued  out  or  appeals  had  been 
taken  and  prosecuted  to  the  Supreme  Court,  shall  be  transferred 
to  and  deposited  in  the  district  court  for  the  said  State. 
R.  S.  g  567.  U.  S.  Comp.  Stat.  1901,  p.  462. 

Writs  of  error  and  appeals  to  the  Supreme  Court  to  review  district  court 
judgments  in  cases  transferred  to  the  district  court  are  authorized  by  an- 
other section. 10     This  section  was  carried  into  the  Revised  Statutes  from 


sPost.  §  569.  Stat.  240.  as  amended  June  28,  1906, 

« Act  Mar.  .3.   1809.  c.  452.   §   .S.  .30  c.    3.576.    .34    Stat.    .546.   U.    S.    Comp. 

Stat.    1.368.  I^.   S.    Comp.   Stat.    1001.  Stat.  1005  p.  123,  125. 

,).  4.54.  9 Act    Sept    24,    1789,   c.    20    §    3,    1 

■'Seo  ante.  §  350.  Stat.  73. 

i^Act  .Tune  .30.  1002.  c.  1339.  32  Stat.  lOAnte.  §  49. 
5.51,    Act    Apr.    22.    1004.   c.    1421,    33 

401 


S   3S4  COURT    IIKCOKDS  [Code  Fed. 

acts  of  1S4711  and  1S4S.12  It  was  lielil  that  those  acts  applied  to  cases 
pending  in  the  superior  or  appellate  courts  of  a  Territory,  admitted  as  a 
State,  if  at  the  time  of  its  admission  it  did  not  form  part  of  a  judicial  cir- 
cuit, but  if  attached  to  a  circuit  the  transfer  should  be  to  the  circuit 
court.  13  The  transfer  of  pending  suits  and  of  the  files,  records,  etc.,  to  the 
circuit,  district  or  State  courts,  as  the  case  may  be,  is  usually  provided 
for  on  the  admission  of  a  new  State  into  the  nnion.i* 

§  384.     Duty  of  district  judge  to  demand  Territorial  court  records. 

It  shall  be  the  duty  of  the  district  judge,  in  the  case  provided 
in  the  preceding  section,  to  demand  of  the  clerk,  or  other  person 
having  possession  or  custod}'^  of  the  records  therein  mentioned, 
the  delivery  thereof,  to  be  deposited  in  said  district  court;  and. 
in  case  of  the  refusal  of  such  clerk  or  person  to  comply  with  such  de- 
mand, the  said  district  judge  shall  compel  the  delivery  of  said  rec- 
ords by  attachments  or  otherwise,  according  to  law. 
R.  S.  §  568,  U.  S.  Comp.  Stat.  1901,  p.  462. 

§  385.     Duty  of  clerk  to  keep  indexes  to  records. 

The  clerks  of  the  several  courts  of  the  United  States  shall  prepare 
and  keep  in  their  respective  offices  complete  and  convenient  indices 
and  cross-indices  of  the  judgment  records  of  said  courts,  and  such 
indices  and  records  shall  at  all  times  be  open  to  the  inspection  and 
examination  of  the  public. 

§  2,  of  act  Aug.  1,  1888,  c.  729,  25  Stat.  357,  U.  S.  Comp.  Stat.  1901,  p. 
701. 

§  386.     Duty  to  keep  bankruptcy  indexes. 

The  clerks  of  the  several  district  courts  of  the  United  State.s 
shall  prepare  and  keep  in  their  respective  offices  complete  and 
convenient  indexes  of  all  petitions  and  discharges  in  bankrupt(\" 
heretofore  or  hereafter  filed  in  the  said  courts,  and  shall,  when 
requested  so  to  do,  issue  certificates  of  search  certifying  as  to 
whether  or  not  any  such  petitions  or  discharges  have  been  filed : 
and  said  clerks  shall  be  entitled  to  receive  for  such  certificates  tlie 
same  fees  as  now  allowed  by  law  for  certificates  as  to  judgments  in 

iiAct   Feb.   22.   1847.   c.    17,   §    1,   9  §   IS.  26  Stat.  218:  North  and  South 

Stat.  128.  Dakota.    ^Montana    and    Washington  r 

i2Act  Feb.  22,   1848,  c.  12,   §   2,  9  act  Feb.  22.  ISSO.  c.  180,  §  22.  25  St.at. 

St<at.  212.  68.3:    Wyoming:    act    .Tulv    10.    1800. 

iSExpress  Co.  v.  Kountze,  8  Wall.  c.  664.  §  17.  26  Stat.  225."  226:   Okla- 

343,  If)  L.  ed.  457.  homa :   act  H>06.  c.  33,  35,  §§  16.  Ih, 

i4ldaho:   act  July  3,  1890,  c.  6.56,  34  Stat.  276,  2.<. 

492 


4 


Procedure]  AND  PLACES  WHERE  KEPT.  §  3S8 

said  courts :  Provided,  That  said  bankruptcy  indexes  and  dockets 
shall  at  all  times  be  ojDen  to  inspection  and  examination  by  all  per- 
sons or  corporations  without  any  fee  or  charge  therefor. 

§  71  of  Bankrapt  act,  added  by  act  Feb.  5,  1903,  c.  487,  §  17,  32  Stat. 
800,  U.  S.  Comp.  Stat.  1905,  p.  691. 

§  387.     Certified  copy  of  orig-inal  records  lost  or  destroyed. 

Wlien  the  record  of  any  judgment,  decree,  or  other  proceeding 
of  any  court  of  the  United  States  is  lost  or  destroyed,  any  party  or 
person  interested  therein  may,  on  application  to  such  court,  and 
■on  showing  to  its  satisfaction  that  the  same  was  lost  or  destroyed 
without  his  fault,  obtain  from  it  an  order  authorizing  such  defect 
to  be  supplied  by  a  duly  certified  copy  of  the  original  record, 
where  the  same  can  be  obtained ;  and  such  certified  copy  shall  there- 
after have,  in  all  respects,  the  same  effect  as  the  original  record 
^\•ould  have  had. 

R.  S.  §  899,  U.  S.  Comp.  Stat.  1901,  p.  075. 

This  provision  was  enacted  in  1871.1  It  does  not  change  the  established 
rule  as  to  secondary  evidence. 2  Under  it  and  the  following  section  lost 
records  in  bankruptcy  have  been  supplied. 3 

§  388.     Proof  of  substance  of  record  where  no  copy  obtainable. 

When  any  such  record  is  lost  or  destroyed,  and  the  defect  can- 
not be  supplied  as  provided  in  the  preceding  section,  any  party 
or  person  interested  therein  may  make  a  written  application  to 
the  court  to  which  the  record  belonged,  verified  by  affidavit,  showing 
such  loss  or  destruction;  that  the  same  occurred  without  his  fault 
or  neglect;  that  certified  copies  of  such  record  cannot  be  obtained 
by  him;  and  showing  also  the  substance  of  the  record  so  lost  or 
destroyed,  and  that  the  loss  or  destruction  thereof,  unless  supplied, 
Avill  or  may  result  in  damage  to  him.  The  court  shall  cause  said 
iipplication  to  be  entered  of  record,  and  a  copy  of  it  shall  be  served 
personally  upon  every  person  interested  therein,  togethei"  with 
\\ritten  notice  that  on  a  day  therein  stated,  which  shall  not  be  less 
tlian  sixty  days  after  such  service,  said  application  will  be  heard; 
and  if,  upon  such  hearing,  the  court  is  satisfied  that  the  statements 
contained   in  the  application  are  true,  it  shall  make  and  cause  to 

lAct  Mar.  3,  1871.  c.  Ill,  s  1,  16  Hn  re  Friedloh.  19  N.  B.  R.  122, 
Stat.  474.  Fed.  Cas.  No.  5,118. 

2Cornett  v.  Williams,  20  \Yall.  226. 
22  L.  ed.  254. 

493 


g   389  COrRT    I{E('ORDS  [Code    Ped. 

be  entered  of  record  an  order  reciting  the  substance  and  cfffct 
of  said  lost  or  destroyed  record.  Said  order  shall  have  the  same 
effect,  so  far  as  concerns  the  party  or  person  making  such  H|)pli<"i- 
tion  and  the  persons  served  as  above  provided,  but  subject  to  in- 
tervening rights,  which  the  original  record  would  have  had,  if  tiie 
same  had  not  been  lost  or  destroyed. 

R.  S.  §  900,  U.  S.  Comp.  Stat.   1901,  p.  675. 

§  389.     Record  in  appellate  court  may  replace  lost  record  below. 

When  any  cause  has  been  removed  to  the  Sii])reme  Coui't,  and 
the  original  record  thereof  is  afterward  lost,  a  duly  certitieil  copy 
of  the  record  remaining  in  said  court  may  be  filed  in  the  court 
from  which  the  cause  was  removed,  on  motion  of  any  party  or 
pei-son  claiming  to  be  interested  therein ;  and  the  copy  so  filed 
shall  have  the  same  effect  as  the  original  record  would  have  had 
if  tlie  same  had  not  been  lost  or  destroyed. 
R.  S.  g  901,  U.  S.  Comp.  Stat.  1001.  p.  t)75. 

§  390.     Mode  of  giving  notice,  and  proof  thereof,  in  proceedings 
to  restore  records. 

In  any  proceedings  in  conformity  with  law  to  restore  the  record.s 
of  any  court  of  the  United  States  wliich  liave  been  or  may  be  here- 
after lost  or  destroyed,  the  notice  required  may  be  served  on  any  non- 
resident of  the  district  in  which  such  court  is  held  anywhere  with- 
in the  jurisdiction  of  the  United  States  or  in  any  foreign  country; 
the  proof  of  service  of  such  notice,  if  made  in  a  foreign  county, 
to  be  certified  by  a  minister  or  consul  of  the  United  States  in  such 
country,  under  his  official  seal. 

R.  S.  §  902,  as  amended  by  §  1  of  act  Jan.  'A].  1879.  c.  no.  20  St;it.  277, 
U.  S.  Comp.  Stat.  1901,  p.  G76. 

As  originally  enacted,  this  and  the  two  following  sections  applicil  only 
to  the  records  of  the  district  and  circuit  conrt  for  the  northern  district 
of  Illinois,  which  had  been  destroyed.  The  amending  act  above  cited  ex- 
tended their  application  to  all  Federal  courts,  and  added  further  provisions. 

§  391.     Copies  to  supply  originals  in  cases  where  United  States 
are  parties, — force  and  effect  of  copies  substituted 
for  lost  originals. 
A  certified  copy  of  the  official  return,  or  any  other  official  paper 
of  the  United  States  attorney,  inarshal.  or  clerk  or  other  certify- 
ing or  recording  officer  of  any  court  of  tlie  United  States,  made  in 

494 


Procediirel  AND   PLACES  WHERE  KEPT.  {   392 

jjiiisiianee  of  law,  and  on  file  in  any  department  of  the  government. 
I'elating  to  any  cause  or  matter  to  which  the  United  States  was  a 
party  in  any  such  court,  the  record  of  which  has  been  or  may  lie 
lost  or  desti'oyed.  may  be  filed  in  the  court  to  which  it  appertains, 
and  shall  have  the  same  force  and  effect  as  if  it  were  an  original 
report,  return,  paper  or  other  document  made  to  or  filed  in  such 
court;  and  in  any  case  in  which  the  names  of  the  parties  and  the 
date  and  amount  of  judgment  or  decree  shall  appear  from  such  re- 
turn, paper  or  document,  it  shall  be  lawful  for  the  court  in  which 
they  are  filed  to  issue  the  proper  process  to  enforce  such  decree 
or  judgment,  in  the  same  manner  as  if  the  original  record  remained 
in  said  court.  And  in  all  cases  wdiere  any  of  the  files,  papers  or 
records  of  any  court  of  the  United  States  have  been  or  shall  be  lost 
or  destroyed,  the  files,  records  and  papers  which,  pursuant  to  law, 
may  have  been  or  may  be  restored  or  supplied  in  place  of  such 
re(Nirds,  files  and  papers,  shall  have  the  same  force  and  effect,  to 
all  intents  and  purposes,  as  the  originals  thereof  would  have  been 
entitled  to. 

R.  S.  §  90:5.  as  ampTided  by  §  2.  act  Jan.  31,  1879,  c.  39,  20  Stat.  277,  U. 
S.  Comp.  Stat.  1901,  p.  676. 

See  note  to  preceding  section. 

§  392k     Restoration  of  records  in  cases  where  TJnited  States  are 
parties, — compensation,  etc. 

Whenever  any  of  the  records  or  files  in  which  the  United 
Stafes  are  interested  of  any  court  of  the  United  States  have  been 
or  may  be  lost  or  destroyed,  it  shall  be  the  duty  of  the  attorney 
of  the  United  States  for  the  district  or  court  to  wdiich  such  files 
and  records  belong,  so  far  as  the  judges  of  such  courts  respectively 
shall  deem  it  essential  to  the  interests  of  the  United  States  that  such 
records  and  files  to  be  restored  or  supplied,  to  take  such  steps,  under 
the  direction  of  said  judges,  as  may  be  necessary  to  effect  such  res- 
toration or  substitution,  including  such  dockets,  indices,  and  other 
books  and  papers  a,s  said  judges  shall  think  proper.  Said  judges 
may  direct  the  performance,  by  the  clerks  of  said  courts  respect- 
ively and  by  the  United  States  attorneys,  of  any  duties  incident 
thereto;  and  said  clerks  and  attorneys  shall  be  allowed  such  com- 
pensation for  services  in  the  matter  and  for  lawful  disburse-nonts 
as  may  be  approved  by  the  Attorney  General  of  the  United  States, 

495 


s  393  COURT    RECORDS  [Code  Fed. 

upon  a  certificate  by  tlie  jutlges  of  said  courts  stating  that  such 
claim  for  services  and  disbursements  is  just  and  reasonable ;  and  the 
Slim  so  allowed  shall  be  paid  out  of  the  judiciary  fund. 

R.  S.  §  904,  as  amended  by  §  3,  act  Jan.  31,  1879,  c.  39,  20  Stat.  278. 
U.  S.  Comp.  Stat.  1901,  pp.  676,  677. 

§  393.     All  official  records  and  dockets  open  for  investigation. 

The  sundry  civil  appropriation  acts  since  1884  have  contained 
an  appropriation  for  the  detection  and  prosecution  of  crimes  against 
the  United  States  preliminary  to  indictment;  the  investigation  of 
official  acts,  records,  and  accounts  of  marshals,  attorneys,  clerks 
of  the  United  States  courts,  and  United  States  commissioners, 
"for  which  purpose  all  the  records  and  dockets  of  said  officers. 
without  exception,  shall  be  examined  by  the  agents  of  the  Attorney 
General  at  any  time."^ 
Author's  section. 

§  394.  Records  of  abolished  circuit  court  commissioners. 

The  act  abolishing  the  office  of  circuit  court  commissioner  pro- 
vided that  the  commissioners  should  deposit  "all  the  records  and 
other  official  papers  appertaining  to  their  offices  in  the  office  of  the 
clerk  of  the  circuit  court  by  which  they  were  appointed."^ 
Author's  section. 

§  395.     Records  kept  by  United  States  commissioners. 

[United  States]  commissioners  shall  keep  a  complete  record  of  all 
proceedings  before  them  in  criminal  cases,  in  a  well-bound  book, 
which  record  book  shall  be  delivered  to  and  preserved  by  the  clerk 
of  the  district  court  for  such  district  on  the  death,  resignation, 
removal,  or  expiration  of  term  of  the  commissioner,  for  which  rec- 
ord the  commissioner  shall  receive  no  compensation. 

Part  of  §  21,  act  May  28,  1896,  c.  252,  29  Stat.  185,  U.  S.  Comp.  Stat. 
1901,  p.  653. 

§  396.     Affidavit  to  supply  State  court  record  when  certified  copy 

refused. 

In  any  case  where  a  party  is  entitled  to  copies  of  the  record  and 

proceedings  in  any  suit  or  prosecution  in  a  State  court,  to  be  used 

in  any  court  of  the  United  States,  if  the  clerk  of  said  State  court, 

6See    provision    for    1906.    in     act         7Act  IMav  28.  1896,  c.  252.  §  19,  29 
June  30,  1906,  c.  3914,  34  Stat.  752.    Stat.  184. 

496 


Procedure]  AND  PLACES  WHERE   KEPT.  §   396 

upon  demand,  and  the  payment  or  tender  of  the  legal  fees,  refuses 
or  neglects  to  deliver  to  him  certified  copies  of  such  records  and  pro- 
ceedings, the  court  of  the  United  States  in  which  such  record  and 
proceedings  are  needed  may,  on  proof  by  affidavit  that  the  clerk  of 
said  State  court  has  refused  or  neglected  to  deliver  copies  thereof, 
on  demand  as  aforesaid,  direct  such  record  to  be  supplied  by 
affidavit,  or  otherwise,  as  the  circumstances  of  the  case  may  require 
aud  allow;  and,  thereupon,  such  proceeding,  trial  and  judgment 
may  be  had  in  the  said  court  of  the  United  States,  and  all  such 
processes  awarded,  as  if  certified  copies  of  such  records  and  pro- 
ceedings had  been  regularly  before  the  said  court. 

E.  S.  §  645,  U.  S.  Comp.  Stat.  1901,  p.  523. 


Fed.  Proc— 32.  497 


CHAPTEK  12. 

VENUE  IN  CI^HL  AND  CRIIMINAL  CAUSES. 

§  401.     In  what  district  suit  may  be  brought. 

§  402.     Place  of  suit  in  States  containing  several  districts. 

§  403.     Local  suits  where  property  lies  in  different  districts  of  same  State. 

§  404.     — suits  to  enforce  liens,  etc.,  where  property  in  different  districts. 

§  405.     Venue  of  civil  causes  and  courts  to  which  process  is  returnable  in 

districts  containing  judicial  divisions. 
§  406.     Place  of  trial  of  offenses  where  district  contains  judicial  divisions. 
§  407.     Effect  of  change  in  territorial  area  of  judicial  district  or  of  creation 

of  divisions  therein,  upon  pending  causes. 
§  408.     Provisions  for  trial  of  issues   of  fact   where  district   contains  ju- 
dicial  divisions. 

Transfer  of  causes  for  trial  to  another  place  within  district. 

Provisions  for  transfer  of  cause  by  consent  to  another  division. 

Change  of  venue  to  proper  division  in  Mississippi  where  improperly 
brought. 

Venue  on  removal  from  State  court  in  districts  containing  judicial 
divisions. 

Concurrent    jurisdiction    of    southern    and    eastern    districts    over 
New  York  harbor. 

Place  of  return  of  process  in  western  New  York  district. 

Venue  of  proceedings  by  National  Bank  to  enjoin  comptroller. 

Venue  of  patent  infringement  suits. 

Venue  of   suits   against   surety   companies   on   bonds   and   recogni- 
zances. 

Venue  of  suits   for  combinations   in   restraint  of   import  trade. 

Venue  of  partition  suit  where  United  States  are  parties. 

Venue  of  suits  for  internal  revenue  taxes. 

Venue  of  suits  for  penalties  and  forfeitures. 

Venue  of  proceedings   for   forfeitures. 

— for  trade  with  insurrectionary  districts. 

— for   forfeiture   of  captured  insurrectionary   property. 

Venue  of  suits,  civil   and  criminal,  under  submarine  cable  law. 

Place  of  trial  in  criminal  causes. 

Place    of    trial    of   offenses    punishable    with    death. 

Offenses  on   high  seas  and  out  of  any  district,  where  tried. 

Crimes  on  Pacific  Islands  deemed  on  American  vessel. 

498 


§ 

409. 

§ 

410. 

§ 

411. 

§ 

412. 

§  413. 

§ 

414. 

§ 

415. 

§ 

416. 

§  417. 

§ 

418. 

§ 

419. 

§ 

420. 

§ 

421. 

§ 

422. 

§ 

423. 

§ 

424. 

§ 

425. 

? 

426. 

§ 

427. 

§ 

428. 

§ 

429. 

Procedure]        IN   WHAT  DISTRICT  SUIT  MAY  BE   BROUGOT.  §   401    [bj 

§  430.  Offenses   begun   in   one  disti'ict  and   completed  in   another. 

§  431.  Venue  of  equity  proceedings  against  carriers  for  discrimination. 

§  43i2.  — of  proceedings  by  carriers  against  Commerce  Commission. 

§  433.  — of  forfeiture  proceedings  against  carrier  violating  Commission's 

order. 

§  434.  — of  proceedings  to   enforce   Commission's   orders. 

§  435.  Venue  of  oft'ense  of  issuing  false  passports. 

§  401.     In  what  district  suit  may  be  brought. 

No  persons  shall  be  arrested  in  one  distiict  for  trial  in  another 
in  an}'  civil  action  before  a  circuit  or  district  court;  and  no  civil 
suit  shall  be  brought  before  either  of  said  courts  against  any  per- 
son by  any  original  process  or  proceeding  in  any  other  district  than 
that  whereof  he  is  an  inhabitant, '^^^''^^'^^^  but  where  the  jurisdiction 
is  founded  only  on  the  fact  that  the  action  is  between  citizens  of 
different  States, ^^^  suit  shall  be  brought  only  in  the  district  of  the 
residence  of  either  the  plaintiff  or  the  defendant.  ^^^^^^ 

Part  of  §1,  act  Mar.  3,  1875,  c.  137,*  18  Stat.  470,  as  amended  act  Mar.  3, 

1887,  c.  373,  §  1,  24  Stat.  552,  and  corrected  act  Aug.  13,  1888,  c.  86(5, 

§  1,  25  Stat.  434,  U.  S.  Corap.  Stat.  1901,  p.  50S. 

[a]  In  general. 

The  omitted  portion  of  the  above  section  that  still  remains  in  force, 
prescribes  the  jurisdiction  of  the  circuit  court  and  is  set  forth  in  an  earlier 
chapter.i  Part  of  it,  relating  to  the  appellate  jurisdiction  of  the  circuit 
courts,  has  been  superseded  by  the  act  establishing  the  circuit  court  of  ap- 
peals.2  The  section  is  somewhat  similar  in  terms  to  a  provision  of  the 
judiciary  act  of  1789.3  That  provision  was  held  not  to  distinguish  between 
those  that  are  inhabitants  of  a  district  and  those  domiciled  abroad,  so  as  to 
protect  the  former  and  not  the  latter,  and  to  indicate  the  intention  of  Con- 
gress that  the  latter  should  not  be  subject  to  process  of  the  circuit  courts.* 
As  this  provision  stood  in  the  act  of  1875,  it  contained  an  alternative  clause 
following  the  word  "inhabitant,"  and  reading  as  follows:  "Or  in  which  he 
shall  be  found  at  the  time  of  serving  such  process  or  commencing  such  pro- 
ceeding." The  amending  act  of  1887  omitted  this  clause  and  inserted  in- 
stead the  clause  beginning  "but  where  the  jurisdiction  is  founded,"  etc., 
which  is  added  by  way  of  provi.so  to  the  next  preceding  clause. 

[b]  To  what  suits  applicable. 

'i'he  above  provision  does  not  apply  to  all  Federal  suits.  Thus  where  ex- 
clusive   jurisdiction    is    conferred    on   the    Federal    courts    by    special    acts 

lAnte,  §§  129.  et  seq.  4Toland  v.  Sprague,  12  Pet.  329,  9 

2See  ante.  §  77.  L.  ed.  1093. 

iJ^oi    Sept.   24,  1789,  c.  20   §   11.   1 
Stat.  79. 

499 


$   401   [c]  VENUE   IN  CIVIL  AND    CRIMINAL  CAUSES.  [Code  Fed. 

passed  prior  to  the  above  enactment  the  jurisdiction  thus  conferred  is  not 
affected  by  the  enactment. •>  Apparently  it  is  confined  to  cases  in  which 
the  jurisdiction  is  concurrent  with  that  of  the  State  courts,  the  act  from 
which  it  is  taken  dealing  only  with  that  class  of  cases.T  Hence  it  does 
not  apply  to  suits  for  infringement  of  patent,  jurisdiction  in  such  cases 
being  derived  from  earlier  and  special  acts.s  Prior  to  an  act  of  1897  such 
suits  could  be  prosecuted  in  any  place  where  the  defendant  could  be  served. 9 
By  the  act  just  mentioned,  however,  such  suits  can  now  be  prosecuted  only 
in  the  district  in  which  the  defendant  is  an  inhabitant,  or  in  the  district 
where  the  act  is  committed  and  where  the  defendant  has  established  a 
place  of  business. 10  So  also,  the  section  does  not  apply  to  suits  for  dam- 
ages for  overcharging  under  the  interstate  commerce  act,ii  nor  does  it 
apply  to  admiralty  suits;  12  and  a  libel  in  personam  may  be  maintained 
against  a  corporation  by  attachment  of  its  goods  in  a  district  not  within 
the  State  of  its  incorporation. is  A  suit  brought  by  the  United  States 
against  an  individual  is  not  a  suit  ''between  citizens  of  different  States" 
within  the  meaning  of  the  second  clause  of  the  above  provision.i* 

[c]     Suits  by  and  against  aliens. 

While  the  above  provision  in  terms  forbids  the  bringing  of  civil  suit 
except  one  founded  solely  on  diverse  citizeiTsiiip  "against  any  person" 
in  any  other  district  than  that  whereof  he  is  an  inhabitant,  the  words 
apply  only  to  those  persons  who  are  inhabitants  of  the  United  States.15 
Hence  an  alien  defendant  whether  a  natural  person  or  a  corporation  being 
assumed  not  to  reside  in  the  United  States  may  be  sued  in  any  district 
where  valid  service  may  be  had.i^  But  such  alien  can  sue  a  citizen  in  the 
Federal   courts  only  in  the  district  in  which  the  defendant  is  an  inliabi- 

6\':ui    Patten    v.    Chicago,    etc.    R.        i2ln  re  Lousville  Underwriters,  134 

Co.   74   Fed.   988.  U.  S.  488,  33  L.  ed.  991,  10  Sup.  Ct. 

^See  In  re  Hohorst,  150  U.  S.  653,  Rep.    587.      The    same    construction 

37  L.  ed.  1211,  14  Sup.  Ct.  Rep.  221;  was  given  to  a  similar  provision  of 

Van  Patten  v.   Chicago,  etc.   R.   Co.  the  judiciary  act  of  1789.  in  Atkins 

74  Fed.  987;   Westinghouse,  etc.  Co.  v.   Disintegrating  Co.   18   Wall.   272, 

V.  Great  Northern  Ry.  88  Fed.  2C0,  31  21  L.  ed.  841. 
C.  C.  A.  525.  13 Atkins  v.   Disintegrating  Co.   18 

sin  re  Keasbey,  etc.  Co.  IbO  U.  S.  Wall.  272,  21  L.  ed.  841. 
221,  40  L.  ed.  402.   16  Sup.  Ct.  Rep.         i4United  States   v.    Southern   Pac. 

273 ;  Noonan  v.  Athletic  Club  Co.  75  R.  Co.  49  Fed.  301 ;   United  States  v. 

Fed.  335;   Southern  Pac.  Co.  v.  Earl,  Northern  Pac.   R.   Co.   134   Fed.   718. 

82  Fed.  694,  27  C.  C.  A.  185;  West-  67  C.  C.  A.  269. 

inghouse.  etc.  Co.  v.  Great  Northern        i5ln  re  Hohorst,  liTO  U.  S.  660,  37 

Rv.    88   Fed.  261.   31    C.    C.   A.   525;  L.  ed.  1211,  14  Sup.  Ct.  Rep.  221. 
Lederer  v    Rankin,  9U  Fed.  449.    But        lein  re  Hohorst.  150  U.  S.  661.  37 

see   National,   etc.   Co.   v.   Pope,   etc.  L.   ed.    1211.    14   Sup.   Ct.   Rep.   221; 

Co.    56    Fed.    849;    Gorlinm,    etc.    Co.  Barrow  S.  S.  Co.  v.  Kane,  170  U.  S. 

V.   Watson,  74  Fed.  418.  112,  42  L.  ed.  968,   18  Sup.  Ct.   Rep. 

9Bowers   v.   Atlantic,   etc.    Co.    104  530;   Galveston,  etc.  Rv.  v.  Gongales, 

Fed.  890.  151  U.  S.  .')07,  38  L.  ed.  258.  14  Sup. 

10 Post,  §  416;  Bowers  v.  Atlantic,  Ot.  Rep.  401  as  to  when  V' lid  service 

etc.  Co.  104  Fed.  888.  is    made    on  corpo^Uion,    see    infra 

iiVan    Pntten    v.   Chicairo,    ate.    R.  [ccc], 
Co.  74  Fed.  986. 

500 


Procedure]        IN  WHAT  DISTRICT  SUIT  MAY  BE  BROUGHT.       §  401   [ccc] 

tiint.i'  Hence  such  suit  brought  against  a  nonresident  defendant  will  be 
dismissed,!  s  even  though  such  defendant  is  a  corporation  and  carries  on 
business  in  the  State  in  which  suit  is  brought. 19  Where  the  State  under 
the  laws  of  which  such  defendant  is  incorporated  is  divided  into  dis- 
tricts it  is  held  that  suit  must  be  brought  in  the  district  in  which  the  prin- 
cipal place  of  business  is  located. 20 

[cc]     Suits  against  domestic  corporations. 

Under  the  original  act  of  1875,  allowing  suit  against  a  defendant  in  that 
district  in  which  he  was  an  inhabitant  or  '"in  which  he  shall  be  found," 
a  corporation  could  be  sued  in  any  district  in  which  it  carried  on  business 
and  had  a  general  agent.3  The  amendment  of  1887-1888  however  struck 
out  the  above  quoted  clause  and  substituted  the  proviso  as  to  diverse  cit- 
izenship set  forth  in  the  above  section.  The  result  is  that  except  in  cases 
where  jurisdiction  is  founded  solely  on  diverse  citizenship,  and  those  cases 
in  which  the  defendant  corporation  is  an  alien,*  the  defendant  can  be  sued 
only  in  the  district  of  its  residences  It  being  established  that  such  cor- 
poration cannot  be  considered  a  citizen,  inhabitant  or  resident  of  a  State 
other  than  that  of  its  incorporation^  it  follows  that  such  corporation  can 
be  sued  only  in  that  State  although  it  carry  on  business  elsewhere.''  In 
case  the  State  of  incorporation  is  divided  into  districts  the  suit  must  be 
brought  in  the  district  in  which  the  general  business  of  the  corporation 
is  done. 8 

[ccc]     When  corporation  deemed  found  within  district. 

In  all  suits  brought  against  corporations  organized  under  the  laws  of  a 
foreign  country,  whether  jurisdiction  is  based  upon  alienage  or  the  existence 
of  a  Federal  question,  and  in  suits  wheie  jurisdiction  rests -exclusively 
on  diverse  citizenship  and  plaintiff  has  elected  to  sue  in  the  district  of  his 


1 'Galveston,  etc.  Rv.  v.  Conzales. 
151  U.  S.  50G.  38  L.  ed.  248.  14  Sup! 
<'t.  Eep.  401:  Campbell  v.  Duluth.  etc. 
Rv.  .50  Fed.  242:  Harold  v.  Iron.  etc. 
Min.  Co.  33  Fed.  529. 

isHarold  v.  Iron.  etc.  Co.  33  Fed. 
529. 

i9Campbell  v.  Duluth.  etc.  Ry.  50 
Fed.  242. 

2oGalveston.  etc.  Rv.  v.  Conzales. 
151  U.  S.  4P6,  38  L.  ed.  248.  14  Sup. 
'}t.  Rep.  401.  See.  however,  dissent- 
ing opinion  holding  such  suit  may 
be  brought  in  any  district  of  State. 

3 In  re  Keasbev,  etc.  Co.  160  U.  S. 
228.  40  L.  ed.  404.  10  Sup.  Ct.  Rep. 
273. 

<See   supra    note    [c]. 

sin  re  Keasbev.  etc.  Co.  160  U.  S. 
228,  40  L.  ed.  404.  16  Sup.  Ct.  Rep. 
273. 

nn  re  Keasbev.  etc.  Co.  160  V.  S. 


228.  40  L.  ed.  404.  16  Sup.  Ct.  Rep_ 
273:  Galveston,  etc.  Rv.  v.  Gonzales, 
151  U.  S.  .501,  38  L.  ed.  248,  14  Sup. 
Ct.  Rep.  401 :  Sha.w  v.  jMining  Co. 
145  U.  S.  453.  36  L.  ed.  768.  12  Sup. 
Ct.  Rep.  935. 

TShaw  V.  :\rining  Co.  145  U.  S.  444. 
.36  L.  ed.  768.  12  Sup.  Ct.  Rep.  935: 
In  re  Keasbev.  etc.  Co.  160  U.  S.  229. 
40  L.  ed.  404.  16  Sup.  a.  Rep.  273: 
Galveston,  etc.  Rv.  v.  Gonzales,  151 
U.  S.  502.  .506.  38'L.  ed.  248.  14  Sup. 
Ct.  Rep.  401:  United  States  v.  Shot- 
ter  Co.  110  Fed.  1;  Piatt  v.  Massa- 
chusetts, etc.  Co.  103  Fed.  705; 
Southern  Pac.  R.  Co.  v.  Denton.  146 
U.  S.  202,  36  L.  ed.  942,  13  Sup.  Ct. 
Rep.  44. 

sGalveston,  etc.  Rv.  v.  Gonzales, 
151  U.  S.  496,  40  L.  ed.  404.  14  Sup. 
Ct.  Rep.  401.  See,  however,  dissent- 
ing  opinion. 


501 


§  401   [d] 


VENUE  IX  CIVIL  AND  CRIMINAL  CAUSES. 


[Code  Fed. 


own  domicile,  the  question  wliether  the  corp()rati(jn  defendant  is  found 
witliin  the  district  arises.  8ucli  corporation  defendant  is  "foiuid"  within 
a  State  when  it  is  engaged  in  business  therein^  and  service  of  process  is 
made  upon  an  agent  therein  so  far  representing  it  that  he  may  be  held  in 
law  its  agent  to  receive  such  process. lo  JNlany  States  have  provided  by 
statute  that  such  corporations  shall  appoint  an  agent  residing  in  the 
State  upon  whom  jDrocess  may  be  served. n  But  jurisdiction  may  be  ob- 
tained by  service  on  an  agent  not  so  appointed.  12  Service  on  a  financial 
iigent,  unauthorized  to  accept  service  has  been  held  sufhcient.is  But  service 
•on  the  president  of  such  corporation  casually  within  the  State  in  which  the 
■corporation  does  not  transact  business  is  not;i*  nor  is  service  on  a  passen- 
oer  agent  for  a  railroad  whose  sole  duty  is  to  solicit  travel ;i»  nor  is  service 
■on  the  directors  of  a  corporation  sufficient,  although  residents,  where  it 
liad  ceased  to  do  business  within  the  State  at  the  time. is 

[d]     Suits  between  citizens  of  different  States. 

Where  the  suit  is  betv.een  citizens  of  different  States  it  may  be  brought 
"in  the  district  of  the  residence  of  either  party.  If  there  is  more  than  one 
iplaintiflf  or  defendant  the  suit  must  be  brought  either  in  the  district  where 
:all  the  plaintifls  reside  or  in  the  district  where  all  the  defendants  reside.-" 
'Thus  where  there  are  two  or  more  plaintifls,  each  a  citizen  of  a  different 
State,  and  suing  a  citizen  of  another  State,  such  suit  may  be  maintained 
in  the  district  in  which  the  defendant  resides,i  though  it  cannot  be  main- 
tained in  that  of  either  of  the  plaintiffs. 2  So  also  where  several  defend- 
iint-s  are  sued  by  a  nonresident  plaintiff  all  such  defendants  must  be  resi- 
dents of  the  district  in  wliieh  the  suit  is  brought.^  By  a  special  act  of 
Congress,    which,    although    passed    before    the    above    provision,    was    not 


OEarle  v.  Chesapeake  Ry.  127  Fed.  i4Buffalo  O.  Co.  v.  ]\Ianufac-turers' 
235;  Central  Grain,  etc.  Kxchange  v.  C.  Co.  142  Fed.  27.3:  (ioldey  v.  Morn- 
Board  of  Trade,  12.5Fed.  466,— C.C.  A.  ing   News,   156   t^.   S.   51 S,   311   T..    ed. 

loSee   St.   Clair   v.   Coe,    106   l^.   S.  517.  15  Sup.  Ct.  Rep.  559;    for  other 

350,   27   L.   ed.   222,    1    Sup.   Ct.   Rep.  t'ases  in  which  service  has  been   held 

354;   Connecticut  Mutual  L.  Ins.  Co.  insufficient,  see  Fairbanks  Co.  v.  Cin- 

v.  Spratlev,  172  U.  S.  016.  43  L.  ed.  cinnati,  etc.  Ry.  54  Fed.  4,20.  4  C.  C. 

574,    9    Sup.    Ct.    Rep.    308;     Central  A.  403,  S'S  L.R..\.  271 ;  Evansville,  etc. 


Co.  V.  United  Press,  74  Fed.  918. 

i5Maxwell  v.  Railroad  Co.  34  Fed. 
286. 

leConlev  v.  Alkali  ^^'()rks,  190  l\ 
ed.    1115,    23    Sup.   Ct. 


S.   411.   47    I 
Rep.  728. 

20Lengel   v.   Refining  Co.    110   Fed 


(irain.  etc.  Co.  v.  Board  of  Trade.  125 
Fed.  467;  Eldred  v.  Palace  Car.  Co. 
105  Fed.  456,  45  C.  C.  A.  1 ;  Revans  v. 
Southern,  etc.  R.  R.  114  Fed.  983; 
\'an  Dresser  v.  Navigation  Co.  48 
Fed.  202. 

iiBarrow  S.  S.  Co.  v.  Kane.  170  U. 
S.    107,    42   L,    ed.    967.    18    Sup.    Ct.    21. 
Rep.  526.  1  Sweeney  v.  Carter  Oil  Co.  199  U. 

i2ldem:     Connecticut     Mutual     L.    S.    252.    50    L.    ed.    178,    26    Sup.    Q. 
Ins.   Co.   v.    Spratley.    172   U.   S.   618.    Rep.  55. 

43  L.  ed.  574.   19  Sup.  a.   Rep.  308:         -'Smith  v.  Lyon,  133  U.   S.  315.  33 
Mutual,   etc.   Assn.   v.   Woolen   Mills.    L.  ed.  035.  10  Sup.  Ct.  Rep.  303. 
S2  Fed.  508,  27  C.  C.  A.  212.  sFreeman    v.   Surety    Co.    116   Fed. 

lain  ro  Tlohorst.  150  U.  S.  663,  37    548. 
L.  cd.   1215.   14   Sup.  Ct.  Rep.  221. 

^•2 


Procedure]        IN   WHAT  DISTRICT   SUIT   MAY   BE   BROUGHT.  §   401    [f] 

repealed  thereby,  two  or  more  defendants  residing  in  different  districts 
in  Illinois  may  be  sued  jointly  in  either  district. *  An  improper  joinder 
of  parties  not  indispensable,  under  this  provision,  will  result  in  the  dis- 
missal of  the  suit  only  as  to  the  one  improperly  joined. 5  But  if  an  in- 
dispensable party  defendant  is  not  a  resident  of  the  district  where  the  suit 
is  brought,  the  suit  must  be  dismissed,*)  It  is  held  that  when  a  nonresi- 
dent defendant  is  sued  solely  on  the  ground  that  the  suit  is  between  citi- 
zens of  different  States,  the  declaration  should  allege  not  only  that  the 
plaintiff  is  a  citizen  of  the  State,  but  that  he  is  a  resident  of  the  par- 
ticular district,"  But  facts  as  to  residence  in  the  district  are  not  juris- 
dictional and  may  be  waived,s  and  failure  to  allege  them  is  imniatrial 
when  the  defendant  has  waived  his  right  to  be  sued  in  a  jjarticular  dis- 
trict, 9 

[e]  "District  of  the  residence." 

The  term  "district  of  the  residence"  of  a  person  is  equivalent  to  "dis- 
trict whereof  he  is  an  inhabitant,"  It  restricts  the  jurisdiction  to  the  dis- 
trict in  wliich  one  of  the  parties  resides  within  the  State  of  which  he  is  a 
citizen. 10  It  is  held,  however,  that  if  a  person  becomes  a  citizen  of  a 
State  in  which  there  is  more  than  one  district  and  do^s  not  acquire  a 
fixed  domicile  his  legal  residence  is  in  any  district  in  which  for  the  time 
being  he  may  abide. n  The  term  "inhabitant"  as  used  in  the  first  clause 
of  the  section  is  employed  in  the  sense  of  "resident."  A  mere  sojourner  is 
not  an  inhabitant.  Hence  a  resident  of  one  State  in  charge  of  an  exhibit 
in  another  is  not  an  inhabitant  within  the  meaning  of  the  term. 12  Nor  is 
a  manufacturer  having  a  residence  and  place  of  business  in  one  district 
an  inhabitant  of  another  district  in  which  he  maintains  a  place  of  busi- 
ness through  an  agent,  1 3 

[f]  Provision  as  to  place  of  suit  not  jurisdictional. 

The  provision  as  to  the  district  in  which  the  suit  shall  be  brought  is 
not  jurisdictional,  being  in  the  nature  of  a  personal  exemption  in  favor 
of  a  defendant,  and  may  be  waived  by  him.i^     The  entering  of  a  general 


<Petri  V.  Creelman  Lumber  Co.  199  S,  444,  36  L,  ed,  768.  12  Sup.  Ct.  Rep. 

U.  S.  405.  50  L.  ed.  286,  26  Sup.  Ct.  035:  United  States,  etc.  Co.  v.  Board 

Rep.   133.     See  also  note   to   follow-    of  Comrs.   145  Fed.   144,  (C.  C. 

ing  section.  A.)  . 

5See    Bensinger,    etc.    Co.    v.    Na-  n^NIarks  v,  Marks,  75  Fed,  332. 

tional.  etc.  Co.  42  Fed.  81:   Smith  v.  isBicvcle,   etc.    Co.    v.    Gordon.   57 

.\tchison.  etc.  Co.  64  Fed.  1.  Fed.  529. 

6See    United    States    v.     Northern  isAnderson    v.    Germain,    48    Fed. 

Pac.   R.    Co.    134   Fed.    719.    67   C.    C.  295. 

A.   269.  i4Wolff  Co  V.  Clioctuw,  etc.  R.  Co. 

"Miller  v.  Pennsvlvania   R.  Co.   91  133  Fed.  601;   :Mexican,  etc.  Railroad 

Fed.   298:   Laskev  v.  [Mining  Co.   50  Co.  v.  Davidson,  157  U,  S.  208.  .39  L. 

Fed.  634.                "  ed.    672,    15    Sup,   Ct,    Rep,    565:    Ex 

8Soe   following  note,  parte  Schollenboiger.  96  U,  S.  369.  24 

nSee  Southern  Express  Co,  V,  Todd,  L,  ed.  853:    Foulk   v.  Gray,   120  Fed, 

.")(•>   Foil.  IOC.  0  C.  C.  A.  432.  156;     Chesapeake,     etc.     Co.    v.     Fire 

i''.'<ii;tw  V.  (^uincv  ^lin.  Co.  145  U. 

503 


S   402  VENUE    IN    CIVIL  [Code     Fed. 

appearance  constitutes  such  waiveris  a«  does  the  filing  of  a  demurrer  on 
the  ground  that  no  cause  of  action  is  stated  ;16  or  the  giving  of  bond 
under  act  of  Aug.  13,  1894,  as  sureties  for  contractors  for  government 
work, 17  or  the  removal  of  a  suit  into  a  Federal,  which  was  brought  in  a 
State,  court.18  There  is  a  waiver  also  where  the  defendant,  although 
pleading  his  exemption  on  the  grounds  of  nonresidence.  unites  therewith 
a  plea  to  the  merits. 1 9  But  the  acceptance  of  service  of  process  does  not 
constitute  a  Avaiver,2  0  nor  does  the  entering  of  a  special  appearance  for 
the  purpose  of  objecting  to  the  jurisdiction,  nor  the  answering  to  the  merits 
upon  the  overruling  of  such  objection. i  A  State  provision  that  the  entry 
of  such  special  appearance  shall  have  the  eft'ect  of  a  general  appearance 
and  confer  jurisdiction  is  not  binding  on  the  Federal  courts.2  The  filing 
of  a  general  appearance  in  an  action  commenced  by  service  of  summons 
alone  is  no  waiver  when  upon  service  of  the  complaint  it  appears  that  the 
ground  of  jurisdiction  is  diversity  of  citizenship  and  that  suit  is  brought 
in  the  wrong  district. s  Appearance  as  curing  defective  service  is  else- 
where discussed.4  A  voluntary  waiver  on  the  part  of  a  corporation  de- 
fendant cannot  be  overruled  by  stockholders  and  creditors  who  were  parties 
to  the  suit  only  by  intervening  petition. 5 

§  402.     Place  of  suit  in  states  containing  several  districts. 

When  a  State  contains  more  tlian  one  district,  every  suit  not  of 
a  local  nature,  in  the  circuit  or  district  courts  thereof,  against  a 
single  defendant,  inhabitant  of  such  State,  must  be  brought  in 
the  district  where  he  resides;  but  if  there  are  two  or  more  defend- 
ants, residing  in  different  districts  of  the  State,  it  may  be  brought 
in  either  district,  and  a  duplicate  writ  may  be  issued  against  the 
defendants,  directed  to  the  marshal  of  any  other  district  in  which 

Creek,  etc.  Co.   119   Fed.   944:     INIahr  verse    citizenship,    and    both    parties 

V.  Union,   etc.   R.  Co.    140  Fed.   921 ;  are  nonresidents,  th^re  is  no  waiver. 

Iowa.  etc.  Co.  v.  Bliss.  144  Fed.  44(i.  Ex  parte  Wisner.  203  U.  S.  ,  51 

isLowry  v.  Tile.  OS  Fed.  817:  Cen-  L.  ed. •,  27  Sup.  Ct.  Rep.  150. 

tral.  etc.  Co.  v.  3IcGeorge.  151  U.  S.        i^Baltimore,  etc.  Co.  R.  R.  v.  Dotv, 

129,  38  L.   ed.   98,   14   Sup.   Ct.   Rep.  133  Fed.  866. 

286.  2  0Uniited    States    v.    Loughrey,    43 

16 St.   Louis,   etc.   Rv.   v.   McBride,  Fed.  449. 
141  U.  S.  127,  35  L.  ed.  660.  11  Sup.        iSouthern    Pae.    Ry.    Co.    v.    Den- 

Ct.  Rep.  982;  Fosha  v.  Telegraph  Co.  ton,  146  U.  S.  202,  36  L.  ed.  943.  13 

114  Fed.  701 :  Scott  v.  Hoover.  99  Fed.  Sup.  Ct.  Rep.  44. 

247;    U.    S.     etc.     Co.    v.    Board     of  2Southern  Pac.  Co.  v.  Denton,  146 

Comrs.  145  Fed.  144.    See  post.  §  860.  U.  S.  202,  36  L.  ed.  943.  13  Sup.  Ct. 

iTUnited    States   v.    Sheridan,    119  Rep.  44. 

Fed.  236.  3 Crown,   etc.    INIills   v.    Turner,    82 

isMemphis,  etc.  Bank  v.  Houchens,  Fed.  337. 

115  Fed.   102.  52  C.  C.  A.  176;  U.  S.  4  Post,  §   860. 

etc.  Co.  V.  Board  of  Comrs.  145  Fed.  sCentral  Trust  Co.  v.  McGeorge, 
144.  But  where  plaintiff  objects  to  151  U.  S.  129,  38  L.  ed.  98,  14  Sup. 
removal    sought    on    grounds    of    di-    Ct.  Rep.  286. 

504 


Procedure]  AND    CRIMINAL    CAUSES.  §  403 

any  defendant  resides.  The  clerk  issuing  the  duplicate  writ  shall 
indorse  thereon  that  it  is  a  true  copy  of  a  writ  sued  out  of  the  court 
of  the  proper  district;  and  such  original  and  duplicate  writs,  when 
executed  and  returned  into  the  office  from  which  they  issue,  shall 
constitute  and  be  proceeded  on  as  one  suit;  and  upon  any  judg- 
ment or  deci'ee.  rendered  therein,  execution  may  be  issued,  directed 
to  the  marshal  of  any  district  in  the  same  State. 
R.  S.  §  740.  U.  S.  Comp.  Stat.  1901,  p.  587. 
In  several  instances  statutes  dividing  a  State  in  districts  have  repeatel 
part  or  all  of  this  provision. 6  It  is  a  mooted  question  Avhether  the  provi- 
sion is  not  impliedly  repealed  by  the  provisions  of  the  previous  code  sec- 
tion.' It  applies  to  a  suit  brought  in  the  district  in  which  the  plaintiff  is 
an  inhabitant  against  defendants,  one  of  whom  resides  in  the  district  and 
the  others  in  another  district  of  the  same  State. 8  A  suit  by  creditors  for 
the  appointment  of  a  railroad  receiver  is  a  suit  of  a  local  nature  within 
its  terms. 9  A  foreign  corporation  is  deemed  a  resident  of  that  district  in 
a  State  in  which  its  designated  place  of  business  in  such  State  is  situate. lo 

§  403.  Local  suits  where  property  lies  in  different  districts  of 
same  state. 
Any  suit  of  a  local  natui-e,  at  law  or  in  equity,  where  the  land  or 
other  subject-matter  of  a  fixed  character  lies  partly  in  one  district 
and  partly  in  another,  within  the  same  State,  may  be  brought  in 
the  circuit  or  district  court  of  either  district;  and  the  court  in  whicli 
it  is  brouglit  sliall  have  jurisdiction  to  hear  and  decide  it,  and  to 
cause  mesne  or  final  process  to  be  issued  and  executed,  as  fully  as 
if  tlie  said  subject-matter  were  wholly  within  the  district  for  AA'hich 
sucli  court  is  constituted. 

R.  S.  <?  742,  U.  S.  Comp.  Stat.  1901,  p.  588. 

This  section  was  carried  into  the  Revised  Statutes  from  an  act  of  1858.13 
So  far  as  it  ajiplies  to  suits  in  the  circuit  courts  to  enforce  liens,  etc.,  or 
to  remove  encumbrances,  etc.  from  real  or  personal  property,  it  is  sup- 
plemented by  an  act  of  Mar.  3,  1875.1*     A  suit  over  land  removed  from  a 

6See  act  March  3,  18S1.  c.  144,  21  80   Fed.   422.     See  also   New  Jersey, 

Stat.  507.  U.  S.  Comp.  Stat.  1901,  p.  etc.  Co.  v.  Chormann,  10.1  F(^.  532.' 

304,  as  to  Louisiana.  ^St.  I^ouis.  etc.   Bank  v.  Harrison, 

"See  Petri  v.  Creelman  Lumber  Co.  8  Fed.  721,  3  ^IcCrarv.  11)2. 

199  U.   S.  493.      50    L.    ed.    285.    26  t'East  Tennessee,  etc.  R.  Co.  v.  At- 

Sup.   Ct.   Rep.'  133;    Fast   Tennessee,  lanta,   etc.    R.    Co.    49    Fed.    608,    15 

etc.  R.  Co.  V.  Atlanta,  etc.  R.  Co.  49  L.R.A.  109. 

Fed.  608,   15  L.R.A.   109:    Greeley  v.  lO^Yeed    v.     Centre,     etc.    Rv.    132 

Lowe.  155  U.  S.  58,  39  L.  ed.  69,  15  Fed.  151. 

Sup.  Ct.  Rep.  24.  holding  that  it  is  isAct  :May  4.   18.58,  c.   27,   §   2,   11 

note   repealed.      See    yiark    v.    Bruen.  Stat.   272. 

133    Fed.     80G;    Goddard    v.    Maillnr.  i4Post,  §  404. 

505 


S  404  VEXUE   IN    CIVIL  [Code   Fed. 

State  court,  the  land  lying  in  two  divisions  of  a  district,  may  be  heard  bo- 
fore  a  circuit  court  of  either  division. is 

§  404.  —  suits  to  enforce  liens,  etc.,    where  property  in  different 
districts. 

When  a  part  of  the  said  real  or  personal  property  against  whicli 
snch  proceeding  shall  be  taken  [i.  e.,  to  enforce  liens  on  or  claims 
to,  or  to  remove  incumbrances  or  liens  or  clouds  on  title  from,  real 
or  personal  property]  shall  be  within  another  district,  but  within 
the  same  State,  said  suit  may  be  brought  in  either  district  in  said 
State. 

Part  of  §  8,  act  Mar.  3,  1875,  c.  137,  18  Stat.  473,  U.  S.  Comp.  Stat. 
1901,  p.  513. 

Other  portions  of  this  section,  and  a  discussion  of  its  scope  and  meaning 
will  be  found  elsewhere. is 

§  405.  Venue  of  civil  causes  and  courts  to  which  process  is  re- 
turnable in  districts  containing  judicial  divisions. 
There  is  considerable  similarity  but  no  uniformity  in  the  statu- 
tory provisions  governing  the  place  of  bringing  civil  actions  in 
districts  having  two  or  more  judicial  divisions.  The  practitioner 
must  advise  himself  as  to  the  provisions  for  any  particular  district 
and  division  and  keep  abreast  of  the  changes  that  will  doubtless 
be  made  from  time  to  time.  The  existing  provisions  are  collected 
in  a  note  appended  hereto.  The  statute  creating  divisions  in  the 
northern  district  of  Mississippi  provided  that  the  district  court 
therein  for  the  western  division  should  be  styled  "the  district 
court  of  the  United  States  for  the  western  division  of  the  northern 
judicial  district  of  ]\Iississippi,'''^''  and  this  would  seem  a  proper 
form  upon  which  to  base  the  title  of  the  court  in  any  district  hav- 
ing divisions. 

Author's  section. 

[al     Alabama,  Arkansas  and  California. 

The  act  of  l»03i'y2  further  dividing  the  northern  district  of  Alabama  pro- 
vided that  "all  civil  process  issued  against  residents  in  said  counties  of 
Etowah,  Calhoun,  Cleburne,  Clay,  Talladega  and  Cherokee,  and  cognizable 

i5Meiii))'  i  .  etc-,  r.ank  v.  Houchens,  22  Stat.  101.  U.  S.  Comp.  Stat.  1901. 
J  15  Fed.  ".Hi.  M  V.  C.  A.  176.  p.  378. 

leSee  post    s^  Soti  ''^^-"^^t  ^^^-  ^^-  ^^^3.  c.  .5.54,  §  4,  .32 

ibbee  po^t.  s  NH,.  ^^^^    g32,   u.   S.   Comp.    Stat.    1905, 

17 Act  June   15,   1882,  c.  218,   §   2,    p.  77. 

50G 


Tiuccdure]  AND  CRIMINAL  CAUSKS.  §   40:.    [b] 

bo  tore  the  United  States  courts,  shall  be  made  returnable  to  the  courts, 
Tespectively.  to  be  held  at  the  city  of  Anniston." 

A  previous  act  involving  the  same  district  declared  that  "all  civil  suits, 
not  of  a  local  character,  which  shall  be  hereafter  brought  in  the  circuit  or 
district  court  of  United  States  for  the  northern  district  of  Alabama,  in 
either  of  said  divisions,  against  a  single  defendant,  or  where  all  the  de- 
fciulants  reside  in  the  same  division  of  said  district,  shall  be  brought  in  the 
•division  in  which  the  defendant  or  defendants  reside;  but  if  there  are  two 
or  more  defendants,  residing  in  different  divisions,  such  suit  may  be 
brought  in  either  division."! «  There  was  a  similar  provision  in  an  act  of 
in05.i9  involving  the  southern  district.  In  Arkansas  the  statutes  provide 
merely  that  "all  process,  civil  and  criminal,  hereafter  issued  against  per- 
sons residing"'  in  specified  counties  constituting  the  several  divisions  of  the 
districts,  "sliall  hereafter  be  made  returnable  to  the  courts,  respectively,  to 
l)e  held  "at  the  designated  places  of  holding  court  therein. "20  An  act  of 
1902  made  a  simihir  provision  respecting  the  Harrison  division  of  the  west- 
ern Arkansas  district. 21  "All  suits  not  of  a  local  nature  in  said  circuit 
-and  district  courts  against  a  single  defendant,  inhabitant  of  said  State, 
must  be  brought  in  the  division  of  the  district  where  he  resides;  but  if 
there  are  two  or  more  defendants  residing  in  different  divisions  of  the 
•  di■^trict,  such  suits  may  be  brought  in  either  division. 

In  the  southern  district  of  California  it  is  provided  that  "All  civil 
process  issued  against  persons  resident  in  the  northern  division  of  said 
southern  district  of  California,  and  cognizable  before  the  United  States 
•courts,  shall  be  made  returnable  to  the  courts  respectively,  to  be  held  at 
tlie  city  of  Fresno;  all  prosecutions  for  offenses  committed  in  said  northern 
•division  shall  be  tried  in  the  appropriate  court  of  jurisdiction  at  said  city 
of  Fresno:  that  all  civil  process  issued  against  persons  resident  in  the  south- 
■ern  division  of  the  said  southern  district  of  California,  and  cognizable  be- 
fore the  United  States  courts,  shall  be  made  roturnal>le  to  the  courts,  re- 
spectively, to  be  held  at  the  city  of  Los  Angeles;  and  all  prosecutions  for 
►offenses  committed  in  said  southern  division  shall  be  tried  in  the  appropriate 
'Court  of  jurisdiction  at  said  city  of  Los  Angoles."2  2 

JbJ     Georgia. 

There  is  a  general  provision  of  a  law  of  1880  affecting  Ceorgia  districts, 
'that  "all  suits  not  of  a  local  nature  in  the  circuit  and  district  courts  against 
.a  single  defendant,  iniiabitaut  of  said  State,  must  be  brought  in  the  di- 
■vision  of  the  district  where  he  resides;  but  if  there  are  two  or  more  defend- 
■•ants,  residing   in    ditVerent  divisions   of  the   district,    such     suits    may    be 


iSAct    :M:iv   2.    1S84.  p.   38.   §  4,  23  2iAct   .March   18,  1902,  c.  222.  §   3, 

Stat.  18.  U.  S.  Comp.  Stat.  318.  32  Stat.  72,  U.  S.  Comp.  Stat.   190.5, 

ii»Act  March  3,  190.5.  c.  1419.   §   3,  p.  81. 

■33  Stat.  988.  U.  S.  Comp.  Stat.  1905,  22§  4  and  §  5.  act  May  29,  1900.  c. 

■p-  "8.  594.  31  Stat.  219,  U.  S.  Comp.   Stat. 

20See    ante,    |    2.58,    and    statutes  1901,  p.   327. 
there  cited. 

507 


§   40o   lb]  VK.Mi:    IN    CIVIL  [Code   Feil. 

brought  in  either  division."- 3  A  later  provision  for  the  northern  Tioori^'ia 
district  declares  that  "all  civil  suits  not  of  a  local  nature  must  be  brought 
in  said  northeastern  division  where  the  defendant  resides  in  said  north- 
eastern division  of  the  southern  Federal  judicial  district  of  (ieorgia.  But  if 
there  are  two  or  more  defendants,  some  residing  in  the  northea^Jtcrn  di- 
vision and  others  residing  in  any  other  portion  of  said  soutliciii  district  <>r" 
Georgia,  the  action  may  be  brought  in  any  one  of  the  divisions  in  which 
any  one  of  the  defendants  resides.  When  the  defendant  is  a  nun  rcsidi-nt 
of  either  division,  action  may,  if  plaintift'  is  a  citizen  of  the  distiict,  be 
brouglit  in  that  division  wherein  the  defendaTit  may  be  found."'!  A  ]iro- 
vision  for  the  western  division  of  the  noithern  district,  dedan-s  that  "all 
process,  civil  and  criminal,  issued  against  citizens  residing  in  said  'ouiitics, 
shall  be  made  returnable  to  the  said  courts,  respectively  (i.  e.  circuit  and 
district),  at  the  said  city  of  Columbus,  and  not  otherwise.2  A  provision 
for  the  northwestern  division  of  the  northern  district  declares  that  ■all  civil 
suits  which  shall  hereafter  be  brought  against  a  defendant  or  defendants 
who  reside  in  said  northwestern  division  of  said  district  shall  l)e  l)rought  in 
said  northwestern  division;  but  if  there  are  two  or  more  defendants  re- 
siding in  different  divisions  of  said  district,  such  suit  may  be  brouglit  in 
either  division  of  said  district  in  which  any  defendant  or  defendants  reside. 
and  all  mesne  and  final  process  sultjcct  to  the  provisions  of  this  Act  issui'd 
in  either  of  the  divisions  of  the  northern  district  of  Georgia  may  be  served 
a.nd  executed  in  either  or  all  of  the  divisions."3  A  provision  affecting  the 
eastern  division  of  the  northern  district  declares  "all  actions  at  law  and  all 
suits  in  equity  against  a  defendant  Avho  shall  be  a  resident  of  said  ea-^1 - 
ern  division  shall  be  brought  therein.  Suits  for  the  recovery  of  lands  shall 
be  brought  in  the  diA'ision  of  the  district  where  the  land  is  situated;  but 
in  all  cases  at  law  or  in  equity  against  more  than  one  defendant,  in  which 
some  of  the  defendants  shall  reside  in  the  western  and  some  in  the  eastern 
division,  such  action  at  law  may  be  brought  in  either  division,  and  such  suit 
in  equity  may  be  brought  in  either  division  in  which  a  defendant  may  re- 
side against  whom  substantial  relief  is  prayed. "^  There  is  a  furtln-r  pro- 
vision in  "an  act  to  provide  for  circuit  and  district  courts  of  tlu^  rnitcd 
States  at  Valdosta,  Georgia,"  which  seems  broad  enough  to  apply  to  all  the 
divisions  within  the  State,  that  "all  suits  not  of  a  local  nature  in  the  circuit 
and  district  courts  against  a  single  defendant,  inhaliitant  of  said  State, 
must  be  brought  in  the  division  of  the  district  where  he  resides;  but  if 
there  are  two  or  more  defendants  residing  in  diflerent  divisions  of  tiie  dis- 

23Act  Jan.  20.  1880.  c.  17,  §  4.  21    26    Stat.    1110,    XL    S.    Comp.    Stat. 

Stat.  62,  U.  S.  Comp.  Stat.   lOOl.  p.    1000.  p.  338. 

334.  3 Act    April    12.    1000,    c.    IS-l.    §   2. 

,  A   4.  17  1,    ic    iQQo         ifiQ    R   Q    OK    ''l    ^^at.  74,  U.  S.  Comp.  Stat.   1001, 
lAct  Feb.  15,  1889,  c.  168.  §  3,  25         .^^^  ^ 

St^t.  671,  U.  S.  Comp.  Stat.  1001,  p.    ''•  ,^^^,-    p.,,^    .^g    j^q^^  ^    ^..,1    ^  3^  3^ 

2^"-  Stat.    818,   U.    S.    Comp.    Stat.    I'oOl, 

2Act  March   3,    1891,   c.   566,    §    3,    p.  341. 

608 


Procedure]  AND  CRIMINAL    CAUSES.  S  405   [c] 

trict  such  suits  may  be  brought  in  either  division."5  And  finally  there  is  a 
similar  provision  in  the  act  providing  for  terms  of  court  at  Albany, 
< Georgia. 6 

[c]     Idaho,   Illinois  and   Iowa. 

In  Idaho  "all  civil  suits  not  of  a  local  character,  which  shall  be  brought 
in  the  district  or  circuit  courts  of  the  United  States  for  the  district  of 
Idaho,  in  either  of  the  said  divisions,  against  a  single  defendant,  or  where 
all  the  defendants  reside  in  the  same  division  of  said  district,  shall  be 
brought  in  the  division  in  which  the  defendant  or  defendants  reside,  or  if 
there  are  two  or  more  defendants  residing  in  different  divisions,  such  suit 
may  be  brought  in  either  division."'  In  the  noi'thern  district  of  Illinois 
'"all  civil  suits  not  of  a  local  nature,  and  all  criminal  prosecutions,  shall  be 
commenced  and  tried  in  the  division  of  the  said  northern  district  of  Illinois 
where  the  defendant  or  defendants  reside,  or  the  offense  is  committed;  but 
if  there  are  two  or  more  defendants  in  civil  suits  residing  in  the  different 
divisions  or  districts,  the  action  may  be  brought  in  either  in  which  either 
•of  the  defendants  may  reside.  When  the  defendant  is  a  nonresident  of  the 
district,  action  may  be  brought  in  either  division  of  said  district  wherein 
the  defendant  may  be  found."'^  There  is  a  similar  provision  with  a  minor 
change,  respecting  the  southern  district  of  Illinois. 9  A  general  provision  as 
to  loAA'a  divisions  in  an  act  of  1880,  declared  that  "all  civil  suits  not  of  a 
local  nature  which  shall  hereafter  be  brought  in  the  circuit  or  district  court 
of  the  United  States  in  said  district  of  Iowa  must  be  brought  in  the  di- 
vision of  the  district  where  the  defendant  or  defendants  reside;  but  if 
there  are  two  or  more  defendants  residing  in  different  divisions,  the  plain- 
tiff may  sue  in  either  one  of  the  divisions  in  which  a  defendant  resides. 
.  .  .  Where  the  defendant  is  a  nonresident  of  the  district,  suit  may  be 
brought  in  any  division  where  property  or  the  defendant  is  found." lo  A 
later  act  provided  that  "all  civil  suits  not  of  a  local  nature  must  be  brought 
in  the  division  of  the  northern  or  southern  district  where  the  defendant  or 
defendants  reside;  but.  if  there  :ire  two  or  more  defendants  residing  in 
different  divisions,  the  action  may  he  brovight  in  either  of  the  divisions  in 
which  a  defendant  resides.  When  the  defendant  is  a  nonresident  of  either 
district,  action  may  be  brought  in  any  division  of  either  district  wherein 
the  defendant  may  be  found."ii  A  statute  creating  the  southern  division 
of  the  southern  district  provided  that  "all  civil  suits  which  shall  hereafter 
be  brought  against  a  defendant  or  defendants  who  reside  in  said  southern 
division   of  said   district   shall   be   brought   in   said   southern   division;     but 

5 Act  June  .30.  1002.  c.  13.38.  §  .3.  .32  sAct   March   3,   1905.  c.   1427.    §    6. 

Stat.    o:)l.    U.    S.    Comp.    Stat.    100.3.  33  Stat.  993,  U.  S.  Conip.  Stat.  lOO.",. 

p.  .58.  p.   90. 

6Act   :\larch   3.   190.5.  c.   1431,   §    3.  9Act    March   3,    1905.  supra.    §    10. 

33  Stat.  999.  U.  S.  Comp.  Stat.  1905,  i^Act    June    4.    1880.    c.    120.    §    2. 

p.  88.  21    Stat.   1.55. 

-.\ct  Julv  5.   1892.  c.   145.   §  4.  27  nAct  Julv  20.  1882.  c.  312.  §  0.  22 

Stat.  73,  U.  S.  Comp.  Stat.  1901,  p.  Stat.  173,  U.  S.  Comp.  Stat.  1901,  p. 

343.  352. 

500 


§  405    [d]  V1:NTTK    in    civil  [Code  Fe« 

if  there  are  two  or  more  dereiulaiils  roidiii,:;  in  did'croiit  divisions  of  said 
district,  such  suit  may  be  brought  in  cither  division  of  said  district  in  which 
any  defendant  or  defendants  reside.12  An  act  of  1904  required  process 
against  persons  resident  in  the  counties  constituting  the  Davenport  division, 
to  be  returnable  to  the  courts  to  be  held  there,  and  that  offenses  in  those 
counties  be  there  tried.is  An  act  of  IflOO  transferring  Clinton  oovmty  to' 
the  southern  district,  required  all  process  against  residents  of  the  county 
to  be  returnable  before  the  courts  to  be  held  at  Davenport.isyo 

[dj     Kansas,  Kentucky  and  Louisiana. 

In  the  divisions  of  the  ]\ansas  district  "all  civil  suits  not  of  a  local' 
character,  which  shall  be  hereafter  brought  in  either  of  said  divisions 
against  a  single  defendant,  or  where  all  the  defendants  reside  in  the  same 
division  of  said  district,  shall  be  brought  in  the  division  in  which  the  de- 
fendant or  defendants  reside;  but  if  there  are  two  or  more  defendants  re- 
siding in  different  divisions,  such  suit  may  be  brought  in  either  division."!  * 
The  law  creating  the  Owensboro  division  of  what  is  now  the  western  dis- 
trict of  Kentucky  provided  that  "where  one  or  more  defendants  in  any  civil 
cause  shall  reside  in  said  division,  and  one  or  more  defendants  to  such  cause 
shall  reside  out  of  said  division,  but  in  said  district,  then  the  plaintiff  may 
insitiite  his  action  either  in  the  court  having  jurisdiction  over  the  latter  or 
in  the  said  division."! 5  While  Kentucky  was  a  single  district  it  was  pro- 
vided that  "in  the  district  of  Kentuckj'  the  clerks  of  the  circuit  and  district 
courts,  respectively,  upon  issuing  original  process  in  a  civil  action,  shall 
make  it  returnable  to  the  court  nearest  to  the  county  of  the  residence  of 
the  defendant,  or  of  that  defendant  whose  county  is  nearest  a  court,  if  he 
have  information  sufficient,  and  shall  immediately,  upon  payment  by  the 
plaintiff  of  his  fees  accrued,  send  the  papers  tiled  to  the  clerk  of  the  court 
to  which  the  process  is  made  returnable;  and  whenever  the  process  is  not 
thus  made  returnable,  any  defendant  may,  upon  motion,  on  or  before  the 
calling  of  the  cause,  have  it  transferred  to  the  court  to  which  it  should 
have  been  sent  had  the  clerk  known  the  residence  of  the  defendant  when 
the  action  was  brought.! 6  In  Louisiana  the  provision  for  both  districts  is- 
that  "if  there  be  more  than  one  defendant,  and  they  reside  in  different 
divisions  of  the  district,  the  plaintiff  may  sue  in  either  division,  and  send 
duplicate  writ  or  writs  to  the  other  defendants;  and  the  said  writs,  when 
executed  and  returned  into  the  court  from  which  thej'  issued,  shall  consti- 
tute one  suit   and   be  proceeded   in   accordingly. "1 '      In  creating  the   Lake 

i^Act  June  1,  1000.  c.  601.  §  2.  31  similar:      Act    Mav    3,    1892.    c.    59. 

Stat.    249.    U.    S.    Comp.    Stat.    1901,  §   2.  27   Stat.   24,  U.   S.  Comp.    Stat, 

p.   354.  1901.  p.  .357. 

!3Act    April    28.    1904.    c.    1800.    §         isAct  Aug.  8,  1888    c.  792.  §  2.  25 

3.   33   Stat.   547.   U.    S.   Comp.    Stat.  Stat.  390. 
1905,  p.  98.  I6R.   S.    §    745,   U.   S.   Comp.   Stat. 

!3y2Act  .lune   19.   190().  c.  3437.  34  1901.  p.  589. 
Stat.    .304.  i7See   act    Aug.   8.    1888.   c.   789.    § 

14 Act    .Tune    9.    1890.    e.   403,    §    2,  2,   25    Stat.    388:    act   Aug.    13.    1888, 

26  Stat.  129.  U.  S.  Comp.  Stat.  1901J  c.  869.  §  3.  25  Stat.  438.  U.  S.  Comp. 

p.  357.    The  provision  enacted  on  the  Stat.  1901,  pp.  366,  367. 
creation     of     the     third     division    is 

510 


Procedure]  AND    CRIMINAL    CAUSES.  §   405    [ej' 

Charles  division  of  the  western  district  it  was  provided  that  all  civil  process^ 
against  persons   resident    in   the  parishes  constituting  the   division  be  re- 

tnrnable  to  the  courts  there  held. ^8 

[e]     Michigan  and  Minnesota. 

In  the  western  district  of  Michigan  "all  suits  and  proceedings  hereafter 
to  be  brought  in  the  said  i-ireuit  or  district  courts  not  of  a  local  nature- 
shall  be  brought  in  a  court  of  the  division  of  the  district  Avhere  the  de- 
fendant resides ;  but  if  therr>  be  more  than  one  defendant,  and  they  reside- 
in  different  divisions  of  the  district,  the  plaintiff  may  sue  in  either  division 
;md  send  duplicate  -writ  or  writs  to  the  other  defendants,  on  which  the 
])laintiff  or  his  attorney  shall  indorse  that  the  writ  thus  sent  is  a  copy  of 
a  writ  sued  out  of  a  court  nf  the  proper  division  of  the  said  district;  and 
the  said  writs,  when  executed  and  returned  into  the  office  from  which  they 
issued,  shall  constitute  one  suit,  and  be  proceeded  in  accordingly."  The- 
statute  further  provides  that  "all  issues  of  fact  shall  be  tried  at  the  terms- 
of  said  courts  to  be  held  in  the  division  where  such  suits  shall  hereafter 
be  commenced;  but  nothing  herein  contained  shall  prevent  the  said  circuit 
and  district  courts  from  regulating  by  general  rule  the  venue  of  transitory 
actiims.  either  in  law  or  in  equity,  and  from  changing  the  same  for  cause."2n- 
In  the  eastern  ^Michigan  district  the  statute  provides  that  "all  suits  and 
l)roceedings  heieafter  to  be  tried  in  said  circuit  and  district  courts,  not  of 
a  local  nature,  shall  be  brought  in  the  court  of  the  division  of  the  district 
where  the  defendant,  or  one  of  the  defendants  if  there  be  several,  resides, 
and  if  there  be  several  defendants,  part  of  whom  reside  in  one  division  and 
part  in  another  of  the  district,  the  plaintiff  may  sue  in  either  division  and 
send  a  duplicate  writ  or  writs  to  the  other  defendants  on  which  the  plain- 
tiff or  his  attorney  shall  indorse  that  the  writ  thus  sent  is  a  copy  of  a 
writ  sued  out  in  the  proper  division  of  said  district,  and  said  writs  when 
executed  and  returned  into  the  office  from  which  they  issued  sliall  consti- 
tute one  suit  and  be  proceeded  in  accordingly.  Actions  in  rem  in  admiralty 
may  be  brought  in  whichever  division  of  the  district  service  can  be  had 
upon  the  res."2i  In  the  Minnesota  district,  "all  civil  suits  not  of  a  local 
nature  must  be  brought  in  the  division  where  the  defendant  or  defendants 
reside;  but  if  there  are  two  or  more  defendants  residing  in  different  divi- 
sions, the  action  may  be  brought  in  any  division  in  wiiich  a  defendant  re- 
sides. .  .  .  All  civil  process  from  the  circuit  and  district  courts  of  the- 
United  States  for  said  district  of  Minnesota  against  defendants  residing  or 
found  therein,  shall  be  returned  to  the  place  appointed  for  the  holding  of 
said  courts  in  the  division  where  such  defendant  resides.  ...  If  there 
be  more  than  one  defendant  and  they  reside  in  different  divisions  of  the 
district,  the  plaintiff  may  sue  in  either  division,  and  send  duplicate  writ  or 

isAct  March  2.  190.5.  c.  130S.  §  3,    •^.  20  Stat.  175.  T7(i.  I^.  S.  Comp.  Stat. 
33  Stat.  841,  U.  S.  Comp.  Stat.  1005,    inOl.  p.  370. 

p.    100.  21  Act    April    .30.    1S04.    c.    00.    §    3,. 

2  0 Act  June  19.   1879.  c.   320.    §   2.    28  Stat.  G7.  U.  S.  Comp.  Stat.   1901,. 

p.  373. 
511 


§   405   [f]  VENUE    IN    CIVIL  [Code   Fed. 

writs  to  the  other  defendants;  and  the  said  writs,  when  executed  and  re- 
turned into  the  court  from  which  they  issued,  shall  constitute  one  suit  and 
be  proceeded  in  accordingly."2  2 

[fj     Mississippi. 

In  the  northern  Mississippi  district  the  statute  provides  that  "hereafter 
all  suits  to  be  brought  in  either  of  said  courts,  not  of  a  local  nature,  shall 
be  brought  in  the  division  where  the  defendants,  or  either  of  them,  reside; 
but  if  there  be  more  than  one  defendant,  and  they  reside  in  dift'erent  di- 
visions, or  any  of  them  reside  in  the  southern  judicial  district  of  ]\Iissis- 
sippi,  the  plaintiff  may  sue  in  either  division  or  district,  and  send  du|)li 
cate  writs  to  the  other  division  or  district,  directed  to  the  marshal  of  tin' 
district  where  he  or  they  may  reside,  on  which  said  writs  shall  be  indorsed 
by  the  plaintifi',  or  his  attoi-ney,  that  the  same  is  a  duplicate  of  the  original 
writ  sued  out  of  the  district  court  of  the  proper  division  or  district;  but 
whenever  a  defendant  is  sued  out  of  the  division  of  his  residence,  and  is 
not  joined  with  a  co-defendant,  whose  residence  is  in  the  division  where 
the  suit  is  brought,  he  may,  before  pleading  therein,  on  motion  and  on 
affidavit  of  the  division  of  his  residence,  change  the  venue  to  the  court  of 
the  division  of  his  residence,  which  suit  shall  sttand  for  trial  at  the  first 
term  of  the  court  to  which  the  venue  may  be  changed."i  The  statutes  cre- 
ating the  western  and  southern  divisions  of  the  southern  district  of  Missis- 
sippi provide  that  "all  laws  regulating  and  defining  how  suits  against 
persons  or  property  located  or  found  in  judicial  districts  shall  be  brought 
shall  be  applicable  to  and  govern  the  bringing  of  suits"  in  those  divisions. - 
And  an  act  of  1894  governing  the  venue  in  the  southern  Mississippi  district 
provides  that  if  "there  be  more  than  one  defendant  in  a  cause,  and  the 
defendants  reside  in  diti'erent  divisions  of  said  southern  district,  or  any  of 
the  defendants  reside  in  the  northern  district,  the  plaintiff  may  sue  in 
either  division  or  district  where  any  defendant  resides  and  send  duplicate 
writs  for  the  other  defendant  or  defendants  to  the  other  division  or  dis- 
trict, where  such  defendant  or  defendants  reside,  and  said  writs,  when 
executed  and  returned  into  the  court  from  which  they  issued,  shall  consti- 
tute one  suit  and  be  proceeded  in  accordingly."  And  that  "all  j)rocesses 
issued  out  of"  the  circuit  and  district  courts  at  the  place  of  holding  court  in 
the  southern  division  of  the  eastern  district  against  defendants  residing  in 
the  counties  constituting  it, -J  shall  be  returned  to  the  courts  at  such  place. 

l^gj     Missouri. 

In  Missouri  "all  suits  to  be  brought  in  the  courts  of  the  United  States  in 
^[issouri,  not  of  a  local  nature,  shall  be  brought  in  the  division  having  juris- 

2  2 Act  April  26,   1890,  e.  167,   §   2,  Stat.   630;    act   April   4,   1888.  c.   08, 

26  Stat.  72.  U.  S.  Comp.  Stat.   1901,  §  2.  25  Stat.   78.   U.   S.   Comp.  Stat, 

p.  375.  1901.  p.  381. 

lAct    June    15.    1882.    c.    218.    §    3.  sSee    ante,    §    274;     act    July    18. 

22  Stat.  102,  U.  S.  Comp.  Stat.  1901.  1894.    c.    144,    §    5,    6.    28    Stat*    115, 

p.  .378.  U.   S.  Comp.   Stat.  1901,  p    3S3. 

2Act  Feb.  28,  1887,  c.  279,  §  2.  24 

512 


■ 


I'loceduie]  AND    CRIMINAL    CAUSES.  §  405    [h] 

diction  over  the  county  where  the  defendants,  or  either  of  them,  reside; 
"but  if  there  be  more  than  one  defendant,  and  a  part  of  them  reside  in 
different  divisions  or  districts  of  said  State,  the  plaintiff  may  sue  in  either 
division  of  either  district  where  one  of  such  defendants  resides,  and  send 
duplicate  writs  to  tlie  other  division  or  district,  directed  to  the  marshal  of 
said  district,  on  which  said  writs  shall  be  indorsed,  by  the  plaintiff  or  his 
attorney,  that  the  same  is  a  duplicate  of  the  original  writ  sued  out  of  the 
court  of  the  proper  division  and  district." 4  The  act  creating  the  southern 
division  in  the  western  district  of  Missouri  and  the  act  creating  the  south- 
eastern division  of  the  eastern  district,  provide  that  "all  suits  not  of  a 
local  nature  in  said  circuit  and  district  cor-ts  against  a  single  defendant, 
inhabitant  of  said  State,  must  be  brought  in  the  division  of  the  district 
where  he  resides;  but  if  there  are  two  or  more  defendants  residing  in  dif- 
ferent divisions  of  the  district  such  suits  may  be  brought  in  either  di- 
vision."»  The  act  attaching  Audrain  county,  Missouri,  to  the  eastern  dis- 
trict requires  "all  process,  civil  and  criminal,  hereafter  issued  against 
persons  residing"  therein,  "shall  be  made  returnable  to  the  courts  held  at 
Saint  Louis."6 

[h]     North  Dakota,  Ohio  and  South  Dakota. 

In  North  Dakota,  "all  civil  suits  not  of  a  local  character  now  pending, 
or  which  shall  be  brought  in  the  district  or  circuit  courts  of  the  United 
States  for  the  district  of  Xorth  Dakota,  in  either  of  the  said  divisions 
against  a  single  defendant,  or  where  all  the  defendants  reside  in  the  same 
divisions  of  said  district,  shall  be  brought  in  the  division  in  which  the  de- 
fendant or  defendants  reside,  or  if  tiiere  are  two  or  more  defendants  resid- 
ing in  different  divisions,  such  suit  may  be  brought  in  either  division."" 
In  the  Ohio  districts  "all  suits  not  of  a  local  nature  in  the  circuit  or  dis- 
trict courts,  against  a  single  defendant,  inhabitant  of  such  State,  must  be 
brought  in  the  division  of  the  district  where  he  resides;  but  if  there  are  two 
or  more  defendants,  residing  in  different  divisions  of  the  district,  such 
suits  may  be  brought  in  either  division."^  In  the  South  Dakota  district 
"all  civil  suits  not  of  a  local  nature  must  be  brought  in  the  division  of  the 
district  where  the  defendant  or  defendants  reside:  but  if  there  are  two  or 
more  defendants,  residing  in  different  divisions,  the  action  may  be  brought 
in  either  of  the  divisions  in  which  a  defendant  resides."9 


4 Act  Feb.  28,  1887,  c.  271.  §  4.  24  7 Act  June  29.   1906.  c.   359-5.   §    4. 

Stat.   425.   U.    S.    Comp.    Stat.    1901,  34  Stat.  fi09. 

p.  387.  8 Act  June  8.  1878.  c.  KW.  §  3.  20 

5Act   Jan.    24.    1901,   c.    164,    §    4,  Stat.    102;    act    Feb.    4,    1880.    c.    18. 

31    Stat.     739,     U.     S.     Comp.    Stat.  §   4,  21   Stat.  64.   U.  S.  Comp.  Stat. 

IflOl,    p.    390:    act   Jan.    31.    19^5.    c.  1901.  pp.  402,  403. 

287,  §  4.  33  Stat.   G27.  U.   S.   Comp.  9 Act   Nov.   3.   1893.  c.   10.    §   5.  28 

Stat.  1905,  p.  103.  Stat,   o,   U.   S.   Comp.   Stat.   1901.   p. 

SAct  Jan.  28.  1897.  c.   106.   §  2.  29  412. 
Stat.    502,   U.   S.    Comp.    Stat.    1901. 
p.  389. 

Fed.  Proc— 33.  513 


$   405   [i]  A'ENUE    IX    CIVIL  [Code  Fed. 

[ij     Tennessee. 

The  act  ereating  divisions  in  the  eastern  district  of  Tennessee  provided 
that  "all  suits  not  of  a  local  nature  in  the  circuit  and  district  courts, 
against  a  single  defendant,  inhabitant  of  said  State,  must  be  brought  in 
the  division  of  the  district  where  he  resides;  but  if  there  are  two  or  more 
defendants,  residing  in  different  divisions  of  the  district,  such  suits  may 
be  brought  in  either  division.""ii  The  act  dividing  the  western  district  pro- 
vided that  "all  suits  not  of  a  local  character  which  shall  be  hereafter 
brought  in  the  district  or  circuit  court  of  the  I'nited  States  for  the  west- 
ern district  of  Tennessee,  against  a  single  defendant,  or  where  ail  the  de- 
fendants reside  in  the  same  division  of  said  district,  shall  be  l)rought  in 
the  division  in  which  the  defendant  or  defendants  reside;  but  if  there  are 
two  or  more  defendants  residing  in  different  divisions,  such  suit  may  be 
brought  in  either  division,  and  duplicate  writs  may  be  sent  to  the  other 
defendants.  The  clerk  issuing  such  duplicate  writs  shall  indorse  thereon 
that  it  is  a  true  copy  of  a  writ  sued  out  in  the  proper  division  of  the 
district,  and  the  original  and  duplicate  writs,  when  executed  and  returned 
into  the  office  from  which  they  shall  have  issued,  shall  be  proceeded  in  as 
one  suit. "12  The  act  creating  the  northeastern  division  of  the  eastern  dis- 
trict provided  that  "'all  suits  not  of  a  local  nature  in  said  circuit  and  dis- 
trict courts  against  a  single  defendant,  inhabitant  of  said  State,  must  be 
brought  in  the  division  of  the  district  where  he  resides;  but  if  there  are 
two  or  more  defendants  residing  in  different  divisions  of  the  district,  such 
suits  may  be  brought  in  either  division."i3  In  addition  there  have  been 
statutes  transferring  Grundy  and  Fentress  counties  to  different  divisions 
which  provided  that  all  process  hereafter  issuing  against  citizens  thereof 
should  be  returnable  to  the  middle  district  and  to  the  courts  at  Cliatta- 
nooga  respectively ;  14  and  an  act  transferring  Dyer  county  and  making 
"all  process,  civil  and  criminal,  hereafter  issued  against  persons  residing"' 
therein  returnable  to  the   courts  held  at   Memphis. is 

LjJ     Texas. 

In  Texas,  "if  there  be  more  than  one  defendant,  and  they  reside  in  dii- 
ferent  divisions  of  the  district,  or  in  difl'erent  districts,  the  plaintiff  may  sue 
in  either  division,  or  in  either  district  in  which  one  or  more  defendants  may 
reside,  and  send  duplicate  writ  or  writs  to  the  other  defendant  or  defend- 
ants, on  which  the  clerk  issuing  the  writ  shall  indorse  that  the  writ  thus 
sent  is  a  copy  of  a  writ  sued  out  of  the  court  of  the  proper  division  of  said 
district,  and  said  writs,  when  executed  and  returned  into  the  office  from 
which  they  were  issued,  shall  constitute  one  suit,  and  be  proceeded  in  ac- 

iiAct   June   11.    1880,   c.   203.    §    ?,,         i^Act   ]3ec.   27.    1884,   c.   7,    §    1,  2. 

21  Stat.  175.  U.  S.  Corap.  Stac.  1901,  23  Stat.  280.  U.  S.  Comp.  Stat.  1901, 

p.  41.5.  p.  417. 

i2Act   June   20,    1878,  c.   .359,    §    1,         isAct  May  24,  IflOO.  c.  .549.  §  I.  31 

20  Stat.  235.  U.  S.  Comp.  Stat.  1901.  Stat.    183,   U.    S.    Comp.    Stat.    1901, 

p.  414.  p.  420. 

i3Act   Feb.   7.    1900.  c.   10.   §  4.   31 
Stat   6.  U.  «   Comp.  Stat.  1901.  p.  419. 

.514 


Procedure]  AND    CRIMINAL    CAISES.  §   406    [aj 

cordingly.  Providod.  that  suits  and  actions  afleotin<.'  the  title  to  or  to  fore- 
close liens  on  real  estate  shall  be  brou^rht  in  the  district  and  in  the  division 
thereof  in  which  said  real  estate  is.  in  whole  or  in  part.  situate."i6  The 
statute  dividing  Texas  into  judieial  divisions  also  provides  in  creating  each 
division  that  all  process  against  defendants  residing  therein  shall  be  return- 
able to  a  designated  place  therein. it 

[kj     Utah  and  Washington. 

In  the  Utah  district  "all  civil  suits  not  of  a  local  character,  which  shall 
be  brought  in  the  district  or  circuit  courts  of  the  United  States  for  the 
district  of  Utah,  in  either  of  said  divisions,  against  a  single  defendant,  or, 
where  all  the  defendants  reside  in  the  same  division  of  said  district,  shall 
be  brought  in  the  division  in  which  the  defendant  or  defendants  reside,  or 
if  there  are  two  or  more  defendants  residing  in  different  divisions,  such 
suit  may  be  brought  in  either  division."i8  In  the  district  of  Washington 
"all  civil  suits  not  of  a  local  character,  which  shall  be  brought  in  the  dis- 
trict of  Washington,  in  either  of  tne  said  divisions,  against  a  single  de- 
fendant, or  where  all  the  defendants  reside  in  the  same  division  of  said 
district,  shall  be  brought  in  the  division  in  which  the  defendant  or  de- 
fendants reside,  or.  if  there  are  two  or  more  defendants  residing  in  dif- 
ferent divisions,  such  suit  may  be  brought  in  either  division." 1 9 

§  406.     Place  of  trial  of  offenses  where  district  contains  judicial 
divisions. 

The  statutory  provisions  respecting  the  place  of  trial  of  offenses 
in  districts  containing  divisions  are  collated  in  a  note  to  this  sec- 
tion. They  are  all  substantially  to  the  same  effect,  and  make 
criminal  causes  cognizable  in  the  division  wherein  the  offenses  were 
committed.  Such  statutes  usually  contain  other  provisions  to  the 
effect  that  jurisdiction  over  offenses  committed  prior  to  a  division 
or  a  change  in  its  boundaries  is  not  affected  by  the  new  law.  Being 
temporary  in  their  operation  such  provisions  are  not  here  included. 
Author's  section. 

[al     Alabama,  Arkansas  and  California. 

In  Alabama  an  act  of  190.5  provided  that  "prosecutions  for  crime  or  of- 
fenses hereafter  committed  in  any  of  the  counties  of  the  northern  division 
shall  be  cognizable  within  such  division;  and  all  prosecutions  for  crime  or 
offenses  heretofore  committed  within  either  of  said  counties,  taken,  as 
aforesaid,  from  the  middle  and  southern  districts,  or  committed  in  the  mid- 

iSAct  March  11.  1902.  c.  183,  §  10,  29  Stat.  620,  U.  S.  Comp.  Stat.  1901, 

32  Stat.  68.  V.   s.  C'onip.  Stat.  1903,  p.  435. 
P-  71.  19 Act  April  5,  1890.  c.  65.  §  4.  20 

i7See  ante.  §  2SS.     Also  act  April  Stat.    45.    U.    S.    Comp.    Stat.    1901. 

18.  1906.  c.   16.36.  34  Stat.  122.  p.  439. 

iSAct  March   2.    ]S97,  c.   366.   S    3. 

515 


s  406   [b] 


VENUE   IN   CIVIL 


[Code  Fed. 


die  or  southern  districts  as  hitherto  constituted,  shall  be  commenced  and 
proceeded  with  as  if  this  act  had  not  been  passed."2i  An  earlier  act  pro- 
vided that  "all  offenses  hereafter  committed  in  either  of  said  divisions  shall 
be  cognizable  and  indictable  within  the  division  where  committed"!  In 
Arkansas,  "all  crimes  or  otl'enses  hereafter  committed  in  any  of  the  di- 
visions of  said  districts  shall  be  cognizable  within  such  division. "2  In 
California  "all  prosecutions  for  offenses  committed"  in  a  division  "shall  be 
tried  in  the  appropriate  court  of  jurisdiction  therein."3 

£bj     Georgia,  Idaho,  Illinois. 

In  the  southern  district  of  Georgia  "all  prosecutions  for  crimes  or  of- 
fenses committed  after  the  date  this  act  takes  eff'ect,  in  any  of  the  counties 
of  the  northeastern  division,  shall  be  cognizable  within  this  division  ;"4  there 
i^re  similar  provisions  for  other  subdivisions. 5  There  is  no  provision  for 
\'enue  in  criminal  causes  in  the  Idaho  divisions.  The  provision  in  Illinois  is 
■contained  in  the  section  covering  venue  in  civil  causes.6 

;j^cj     Iowa  and  Kansas. 

Ill  the  act  dividing  Iowa  into  districts  and  divisions  it  is  provided  that 
all  i)r()secutions  for  crimes  or  offenses  hereafter  committed  in  either  of 
said  districts  shall  be  cognizable  within  such  district ;  and  all  prosecutions 
tor  crimes  or  offenses  heretofore  committed  in  the  district  of  Iowa  shall 
be  commenced  and  proceeded  Avith  as  if  this  act  had  not  been  passed."7 
The  act  creating  the  southern  division  of  the  southern  district  provides 
that  "all  crimes  and  offenses  against  the  laws  of  the  United  States  com- 


i:iAct  March  3,  1905.  c.  1419.  §  4, 
?,3  Stat.  9S8,  U.  S.  Comp.  Stat.  1905. 
p.  78.  There  was  also  a  provision 
in  §  9  saving  pending  prosecutions 
and  pre\ious  offenses  from  the  pro 
visions  of  the  act. 

lAct  Mav  2,  1884.  c.  38,  §  3.  23 
Stat.  18,  U.  S.  Coiiip.  Stat.  1901.  p. 
318.  An  act  of  190-3  respecting  the 
Anniston  division  required  that  of- 
fenses in  that  division  be  tried  in 
Anniston:  Act  Feb.  16.  1903.  c.  554. 
§  4,  32  Stat.  832.  U.  S.  Comp.  Stat. 
1905.  p.  77. 

2 Act  Feb.  20,  1897.  c.  2()9.  §  7.  29 
Stat.  592.  U.  S.  Comp.  Stat.  1901.  p. 
322. 

3 Act  Mav  29,  1900.  c.  594,  §  5. 
31  Stat.  226.  U.  S.  Comp.  Stat.  1901. 
p.  327. 

4Act  Feb.  15,  1889.  c.  IGS.  §  4.  25 
Stat.  671. 

5Act  Jan.  29,  1880.  c.  17.  §  5,  21 
Stat.  63  (eastern  and  western  divi- 
sions) :  act  April  12,  1900.  c.  185,  § 
3.  31  Stat.  74  (northwestern  divi- 
sion) ;    act   Fetb.    28.    1901.   c.    621.    § 


4.  31  Stat.  818  (eastern  division)  : 
act  June  30,  1902,  c.  1338,  §  4.  32 
Stat.  nol.  U.  S.  Comp.  Stat.  1901,  p. 
.335,  337.  340,  341  ;  U.  S.  Comp.  Stat. 
1903.  p.  58;  act  June  30.  1902,  c.  l.v.3b. 
§  4.  32  Stat.  551,  U.  S.  Comp.  Stat. 
1905.  p.  85  (southwestern  division, 
northern  district)  ;  act  March  3, 
1905,  e.  1431.  §  4.  33  Stat.  999.  U.  S. 
Comp.  Stat.  1905,  p.  88  (southwest 
division,  southern  district ) . 

6Ante,  S  405.[c] 

7Act  Julv  20.  1882,  c.  312.  g  10. 
22  Stat.  173,  U.  S.  Comp.  Stat.  3.52. 
The  act  creating  the  Davenport  divi- 
sion declared  tliat  prosecutions  for 
offenses  therein  should  be  tried  in  t!:e 
appropriate  court  in  Davenport:  Act 
April  28,  1904.  c.  1800,  §  3,  33  Stat. 
547,  U.  S.  Comp.  Stat.  1905,  p.  98. 
The  acts  transferring  Ap])aiioose  and 
Clinton  counties  to  different  divisions 
provided,  tliat  offenses  ttiereiii  should 
be  tried  and  determined  at  Keokuk 
and  Davenport:  Act  April  21,  190(i, 
c.  1048.  34  Stat.  127:  act  June  19, 
1900.  c.  3437.  34  Stat.  304. 


51;; 


Procedure]  AND  CRIMINAL  CAL'SICS.  §  406   [f] 

niittcil  witliin  the  counties  comprising  the  southern  division,"  shall  be 
"prosecuted,  tried  and  determined  at  the  terras  of  the  circuit  and  district 
courts  herein  provided  for."8  A  provision  for  the  third  division  of  the 
Kansas  district  is  similar  to  that  just  quoted.9 

[dj     Kentucky  and  Louisiana. 

The  criminal  jurisdiction  of  the  Owensboro  division  is  stated  in  the 
section  defining  the  civil  jurisdiction. lo  In  Louisiana  "all  prosecutions  for 
crimes  or  offenses  hereafter  committed  in  either  of  the  divisions  shall  be 
cognizable  within  such  division."! i 

[e]     Michigan,  Minnesota  and  Mississippi. 

In  the  western  district  "any  person  charged  with  violating  any  of  the 
penal  or  criminal  statutes  of  the  United  States,  of  which  the  said  circuit 
or  district  courts  have  jurisdiction,  shall  be  proceeded  against  by  indict- 
ment or  otherwise,  within  the  division  of  said  district  where  the  alleged 
offense  or  offenses  shall  be  committed,  and  shall  have  his  or  her  trial  at  a 
term  of  the  said  court  held  in  said  division,  unless  for  cause  shown  tin- 
judge  shall  otherwise  direct."i2  There  is  a  similar  provision  for  the  di- 
visions in  the  eastern  district.! 3  In  Minnesota  "all  criminal  proceedings 
instituted  for  the  trial  of  offenses  against  the  laws  of  the  United  States 
arising  in  the  district  of  Minnesota  shall  be  brought,  had,  and  prosecuted 
in  the  division  of  said  district  in  which  such  offenses  were  committed.''^ 
There  are  no  provisions  as  to  venue  in  the  Mississijjpi  divisions  except  those 
respecting  civil  causes. is 

[fj     Missouri  and  North  Dakota. 

In  the  western  district  of  Missouri  "all  prosecutions  for  crimes  or  offenses 
hereafter  committed  in  either  of  the  divisions  of  said  district  shall  be 
cognizable  within  such  division."! 6  The  only  provision  as  to  venue  in  the 
North  Dakota  districts  affects  civil  causes. 17 


sAct  June  1,  1900.  c.  fiOL   §  3.  31  Stat.    176,   U.    S.    Comp.    Stat.    1901. 

Stat.  24,  U.  S.  Comp.   Stat.  1901.  p.  p.    .371. 
354.  13 Act   April    30.   1894,   c.   66.    §   6. 

9Act  May  3,   1892,   e.   59.   §   3,   27  28  Stat.  68,  U.  S.  Comp.  Stat.   190i. 

Stat  24,  U.   S.  Comp.   Stat.   1901,   p.  p.  374. 
358-  i4Act  July   12,    1894,  c.   132,   §    1. 

loAct  Aug.  8,  1888,  c.  792.  §  2.  25  28  Stat.  102,"  U.  S.  Comp.  Stat.  1901. 

Stat.  389,  U.  S.  Oomp.  Stat.  1901,  p.  p.  376. 
35^-  15 Ante,   §   405    [f]. 

iiAct   Aug.    8.    1888.    c.    789.    §    4,        leAct   Jan.   24.   1901.   c.   164.    §   5. 

25  Stat.  .388:   Aug.   13.   1888,  c.   809,  -^i  stat.  739,  U.  S.  Comp.  Stat.  1901. 

§  4,  25  Stat.  438.  U.  S.  Comp.  Stat.  p.  390.     See  act  Jan.  31.  1905,  c.  287. 

1901,  pp.  366.  3()7.     Similar  provision  §  5.  33  stat.  627,  X'.  S.   Comp.  Stat. 

for     Lake     Charles     division    in    act  1905.    p.    104.    for    similar    provision 

March  2.  1905,  c.  1.308,  §  3,  33  Stat,  respecting   eastern    district. 
841,  U.  S.  Comp.  Stat.   1905,  p.  100.         1 7 Ante.  §  405. [h] 

12 Act  June  19,  1878,  c.  326,  §  6,  20 

517 


S   4(10    [g]  VEXUK   IX    CIVIL  [Code  Fed. 

[gj     Ohio,  Oklahoma,  South  Carolina  and  South  Dakota. 

In  the  northern  district  of  Ohio  '"all  otFenses  committed  in  either  of  the 
subdivisions  shall  be  cognizable  and  indictable  within  said  division. "is  In 
the  southern  district  '"all  prosecutions  for  crimes  or  offenses  hereafter  com- 
mitted in  eith*r  of  the  subdivisions  shall  be  cognizable  within  sucli  di- 
vision.1 9  In  the  Oklahoma  districts,  '"all  prosecutions  for  crimes  or  of- 
fenses hereafter  committed  in  either  of  said  judicial  districts  as  hereby 
constituted,  shall  be  coonizable  within  the  district  in  which  committed. "20 
The  statutes  affecting  South  Carolina  do  not  contain  provisions  as  to  venue, 
either  civil  or  criminal.  The  statutes  governing  South  Dakota  merely  pro- 
vide the  venue  in  civil  causes.- 1 

[h]     Tennessee,  Texas,  Utah  and  Washington. 

In  the  eastern  district  of  Tennessee  "all  prosecutions  for  crimes  and  of- 
fenses hereafter  committed  in  either  of  the  subdivisions  shall  be  cog- 
nizable within  such  division. "2 2  In  Texas  "all  prosecutions  for  crimes  or 
offenses  hereafter  committed  in  either  of  said  judicial  districts  ts  hereby 
constituted  shall  be  cognizable  within  the  district  in  which  committed:"! 
but  there  is  in  generals  no  provision  making  them  cognizable  in  the  di- 
vision of  the  district  where  committed.  The  statute  merely  makes  •'all 
process  issued  against  defendants  residing  in"  a  given  group  of  counties  or 
division,  returnable  to  a  designated  place  therein. 3  There  is  no  provision 
for  venue  of  causes  in  Utah  or  Washington  divisions  except  civil  causes. 4 

§  407.  Effect  of  change  in  Territorial  area  of  judicial  district  or 
of  creation  of  divisions  therein,  upon  pending 
causes. 

The  numerous  statutes  passed  from  time  to  time  creating  new 
judicial  districts  and  changing  the  old,  or  creating  two  or  more 
divisions  in  existing  districts,  have  usually  provided  that  pending 
causes,  both  civil  and  criminal,  should  remain  for  final  disposition 
in  the  place  where  triable  at  the  time  suit  was  brought."  A  failure 
to  so  specify  would  probably  work  the  same  result,  in  view  of  the 
familiar  rule  that  a  statute  is  to  be  construed  prospectively  and  as 

18 Act   June   8.    1878.   c.    169.    §    4.  .32  Stat.  07.  U.  S.  Comp.  Stat.  in03. 

20  Stat.  102.  U.  S.  Comp.  Stat.  1901.  p.  70. 
p.  402.  2But  see  recent  acts:     Feb.  9,  1908. 

i9Act  Feb.  4.    1880.   c.    18.    §   o.  21  c.  o.32.   §  3.  .32  Stat.  820:   act  March 

Stat   64.  U.   S.   Comp.   Stat.    1901.   p.  2.  1903.  c.  974.  §  3.  32  Stat.  927.  U. 

404.  S.    Comp.    Stat.    190.5,    p.    120,    121; 

20Act  June   16,  1906.  c.  3335,  §  14.  act  June   9.    1906,    c.    .3063,     §   3,  34 

::4  Stat.  275.  Stat.  226   (Del  Rio  division). 

2  1  Ante.  §  405.[ii]  3See  ante.  §  288. 

2  2 Act  Feb.   7,   1900,   c.   10.   §   .<>,  31        lAnte,   §   405. [k] 
Stat,   6,  U.   S.  Comp.   Stat.   1901.   p.        ^E.  g.  see   act  March   IS.   1902.  c. 

419.  2>2.   §    3.   32   Stat.   72,   U.   S.   Comp. 

lAct   March    11.    1902.  c.    183.    §   8,  1903,  p.  .54,  as  to  Arkansas. 

518 


Procedure]  AND    CRIMINAL    CAUSKS.  S  408 

applicable  only  to  future  causes  unless  a  retrospective  operation  is 
specifically  provided.  In  some  cases,  however,  the  statutes  have 
permitted  the  transfer  of  such  causes  for  trial  in  the  new  locus  fori, 
by  consent,  or  by  order  of  the  court  for  cause  f  and  in  others,  pend- 
ing causes  have  l)een  ordered  transferred. **  All  such  provisions  are 
temporary  in  cliaracter  and  largely  negative  in  their  operation. 
The  existing  laws  that  could  be  set  forth  here  have  in  the  main 
fulfilled  the  purposes  of  their  enactment.  It  seems  useless  to  re- 
produce them  in  this  work.  The  practitioner  must  keep  advised 
of  late  enactments  affecting  the  organization  of  any  particular 
judicial  district. 
Author's  section. 

§  408.     Provisions  for  trial  of  issues  of  fact  where  district  con- 
tains judicial  divisions. 

In  the  laws  respecting  divisions  of  judicial  districts  in  Ala- 
bama,^*' Georgia,^^  Ohio,^^  Tennessee,  ^^  there  is  a  provision  that 
"all  issues  of  fact  in  said  suits  [i.  e.,  suits  not  of  a  local  cluiractev 
in  the  circuit  and  district  courts]  shall  be  tried  at  a  term  of  the 
court  held  in  the  division  where  the  suit  is  so  brought."  In  ^liehi- 
gan  it  is  provided  that  "all  issues  of  fact  shall  be  tried  at  the  terms 
of  said  courts  [i.  e.,  circuit  and  district]  to  be  held  in  the  division 
where  such  suits  shall  hereafter  be  commenced. "^^  But  in  the 
western  district  of  Michiaan  the  courts  mav  bv  rule  reoulate  and 


8E.  g.  see  as  to  Alabama  act  Fob.        nAct  Jan.  29,  1880,  c.   17.  §  4,  21 

16.    1903.   c.    354.   §   4.    ,32   Stat.    832.  Stat.  t>2,  U.   S.  Comp.   Stat.   1!H)I.  p. 

U.  S.  Comp.  Stat.  1903.  p.  53;   as  to  334;   act  June  30.   1902.  c.    1338.   S  3. 

G«orsria;   act   Jime  .30.   1902.  r.    1338.  32  Stat.  551.  U.  S.  Comp.  Stat.  190.->. 

§  5,  32  Stat.  581,  U.  S.  Comp.  Stat.  p.  58;   act  March   3.  1905.  c.   1431.   § 

1903,  p.   .58:    as  to   Victoria   divisior,  3.    33    Stat.    999.    U.    S.    Comp.    Stat. 

in  Texas:   act   April  18.   l!)on.   §   3.  c.  1905.  p.   88. 

l().3f).  34  Stat.  122:  Towa    (Appanoose         12 Act  .Tune  S.  1878.  c.  1{)9,  §  3.  20 

county)    act    April   21.    190(i.  c    1G48.  Stat.   102:   act  Feb.  4.   1880.  c.   18.   § 

34  Stat.  127.  4.    21    Stat.    104,   U.    S.    Comp.    Stat. 

•'So  in     Texas    bv   act     Marcii    II.  1901.  p.  402.  403. 
1902.  c.  183.   S   7,  .32  Stat.  (>(>.   U.   S.         i^Act   June    11.   1880.   c.    203,    S    5. 

Comp.  Stat.    1903.  p.  09:   Oklalionia  :  21   Stat.  176.  U.  S.  Comp.  Stat.  1901. 

Act  June   10.   190(),  c.  .33.35.   S    14.  34  p.   4I(i:    act  June  20,  1878,  c.  359.   § 

Stat.    275:     Illinois:      Act  March    3.  1,    20    Stat.    235.   U.    S.    Comp.    Stat. 

1905,   c.   1427.    §    17.  33   Stat.  995,  U.  1901.   p.  414. 

S.  Comp.  Stat.  1905.  p.  94.    But  cases         i4Act  June    19.   1879.    c.    320.    §    2, 

in  which  evidence  wa.'^  taken  were  not  20  Stat.    175:    act  April   .30.    1S!U.   c 

transferred.  m.  §  2.  28  Stat.  67,  U.  S.  Comp.  1901, 

lOAct  March  3.   1905.  c.   1419,  §  3.  p.  372.  373. 
33  Stat.  988.  U.  S.  Comp.  Stat.  Ht05. 
p.  78. 

519 


S   4U'J  VEXLK    I.N    CIVIL  [Code   Fed. 

change  the  venue  of  transitory  actions.^  ^  The  act  autliorizing  an 
additional  district  judge  in  Minnesota  provides  that  "the  senior 
circuit  judge  of  the  eighth  circuit  or  the  resident  circuit  judge 
within  the  district  shall  make  all  necessar}^  orders  for  the  division 
of  business  and  the  assignment  of  cases  for  trial  in  said  district;'"^® 
but  this  probaljlv  refers  to  the  duties  of  the  judges  and  not  the 
venue  of  causes.  In  several  other  districts  there  is  a  provision  for 
trial  of  issues  of  fact  in  the  division  where  the  suit  is  brought, 
but  with  a  riglit  of  trial  elsewhere  by  consent.^ '^ 
Author's  section. 

§  409.     Transfer  of  causes  for  trial  to  another  place  within  dis- 
trict. 

In  districts  undivided  into  divisions  where  court  is  or  may  be 
held  at  different  places  therein,  there  are  occasional  special  statu- 
tory provisions  for  transfer  of  causes  from  one  place  of  holding 
court  therein  to  another.  In  the  Montana  district  it  is  provided 
that  "causes,  civil  or  criminal,  may  be  transferred  by  the  court  or 
the  judge  from  Helena  to  Butte,  or  from  Butte  to  Helena,  in  said 
district,  when  the  convenience  of  parties  or  the  ends  of  justice 
would  be  promoted  by  the  transfer,  and  any  interlocutory  order 
ma3'  be  made  by  the  court  or  judge  thereof  in  either  place."^  The 
statute  as  to  terms  in  New  Jersey  makes  provision  for  transfer  of 
causes  to  Newark  for  trial.^ 
Author's  geetion. 

§  410.  Provisions  for  transfer  of  cause  by  consent  to  another 
division. 
In  the  laws  relating  to  divisions  in  the  judicial  districts  of 
Idaho,  North  Dakota,  Utah  and  Washington  it  is  provided  that 
"all  issues  of  fact  in  civil  causes  triable  in  any  of  the  said  courts 
[i.  e.,  district  or  circuit  courts]  sliall  be  tried  in  the  division  where 
the  defendant  or  one  of  the  defendants  resides,  unless  by  consent  of 
both  parties  the  case  sliall  be  removed  to  some  other  division.''* 

15 See  ante,  §  405. fe]  2 See  ante.   §  335. 

i6Act  Feb.  4.  1903,  c.  402.  §  2,  32         tpor  Tda'ho   see  act  July  5.    1892, 

Stat.  795.  U.  S.  Comp.  Stat.  1903,  c.  145.  §  4.  27  Stat.  73.  North  Da^ 
p.  61.  k-ota:     Act  April  26,  1890,  c.  161.  § 

I'Post.    §   410.  4.    26    Stat.    68:    Act   June   29,    1906, 

lAct  July  7,   ISnS.  c.  571,   §  1,  30    c    .3595.    §    4,    34    Stat.    609.      Utah: 

Stat.  6S5.  U.  S.  Comp.  Stat.  1901,  .\rt  IMarch  2,  1897.  c.  366.  §  3.  29 
p.  39.  Stat.  620.     Washington:     Act  April 

520 


Procedure]  AND    CRIMINAL    CAUSES.  §  410   [aj 

There  is  a  similar  provision  for  Iowa,  except  that  "'civil"  causes  are 
not  specified.''  In  the  laws  relating  to  Minnesota  and  Louisiana 
it  is  provided  that  all  causes  triable  in  either  of  the  courts  of 
the  district  "shall  be  tried  in  the  division  to  which  the  process  is 
returnable  under  the  provisions  of  this  act,  unless  by  consent  of  all 
parties  the  cause  be  removed  to  some  other  division  of  said  dis- 
trict."^ In  the  statute  respecting  the  northern  district  of  Missis- 
sippi it  is  provided  that  any  cause  may  on  "written  consent  of 
both  parties  or  their  attorneys  of  record  be  transferred  to  the  court 
of  either  division,  without  regard  to  the  division  of  the  residence 
of  the  defendants."'''  The  act  respecting  the  districts  and  divisions^ 
of  Missouri  provides  that  "any  cause  may,  by  the  written  consent 
of  both  parties  or  their  attorneys  of  record,  be  transferred  to  the 
court  of  either  division  or  district,  without  regard  to  the  residence 
of  the  defendants,  and  Avhether  such  cause  be  now  pending  or  be 
instituted  hereafter."^  More  elaborate  provisions  respecting  trans- 
fer of  both  civil  and  criminal  cases  for  trial  have  been  enacted  for 
the  western  Arkansas  district  and  are  given  below'^^l"^^^ 
Author's  section. 

[a]     Transfer  of  civil  causes  for  trial  in  Arkansas  by  consent, — fees. 

In  1900  it  was  enacted  that  "civil  cases  in  law  or  equity,  now  or  here- 
after pending,  in  either  the  district  or  circuit  court  of  the  United  States, 
for  either  of  the  divisions  of  the  western  district  of  Arkansas,  may,  on 
written  stipulation  of  the  parties  or  their  attorneys  of  record,  signed  and 
filed  with  the  papers  in  the  case,  in  vacation  or  in  term,  and  on  the  written 
order  of  the  judge,  signed  and  filed  in  the  case,  in  vacation,  or  on  the  order 
of  the  court,  duly  entered  of  record,  in  term,  be  transferred  to  another  di- 
vision of  the  district  for  final  trial;  and  in  the  event  of  such  transfer,  it 
shall  be  the  duty  of  the  clerk  of  the  court  in  which  such  suit  is  pending 
to  make  out  and  transfer  a  certified  copy  of  all  the  record  entries  in  the 
case  together  with  all  the  original  papers  in  the  case  to  the  clerk  of  the 
court  to  which  such  case  is  transferred,  for  which  he  shall  have  such  fee?^ 
as  are  now  allowed  for  making  transcripts,  and  the  sum  of  two  dollars  ad- 

5,  1890.  c.  65.  §  4.  26  Stat.  4.3  U.  S.        "Act   June    15.   1882.   c.    218.    §    3, 

romp.    Stat.    1901.   p.   .34.3.   400.   435.  22  Stat.  10-2,  U.  S.  Comp.  Stat.  1901. 

439.  p.   379. 

sAct  June  4.  1880.  c.  120.   §   2,  21         sAct  Feb.  28.  1887.  c.  271.  §  4.  24 

Stat.  155.  Stat.   425.   U.    S.    Comp.   Stat.    1901, 

«Loui5iana:     Act   Aug.  8.  1888.  c.  P-  387.     There  is  a  provision  of  the 

789.  §  3,  25  Stat,   .388:   act  Aug.  13,  section  specifying  the  duty  and   fer>s 

1888,  c.  869,  ?  4.  2o  Stat.  438.     Min-  of  the  cWrk  in  certifying  the  record 

nesota:      Act' April  26.   1890.   c.   167,  for  transfer. 
?   3.  26  Stat.  73.   U.   S.   Comp.   Stat. 
1901,  p.  361,  367,  375. 

521 


§   410    [bj  VENll';    IN    CIVIL    AND    CRIMINAL    CAUSKS.  |  Cod.^   Fed. 

ditional  for  transferrint;  the  same,  to  be  taxed  as  costs  and  paid  as  other 
costs  in  the  case,  and  the  clerk  receiving  such  transcript  and  original  papers 
shall  file  the  same  and  the  case  shall  then  proceed  to  final  disposition  as 
other  cases  of  like  nature."'* 

[b]  —  transfer  of  criminal  cases  and  fees  of  clerk. 

The  same  law  further  provided  that  "the  defendants  in  criminal  cases 
now  or  hereafter  pending  in  the  district  courts  of  the  Harrison  or  Texar- 
kana  divisions  of  the  western  district  of  Arkansas  and  who  are  incarcerated 
at  Fort  Smith  to  await  trial  because  of  their  inability  to  furnish  bail  and 
who  desire  to  plead  'guilty'  may,  on  their  written  motion  showing  those 
facts  and  filed  in  the  case,  in  vacation,  and  upon  the  order  of  the  judge, 
duly  signed  and  filed  in  the  case,  have  their  cases  transferred  to  the  Fort 
.Smith  division  of  the  western  district  of  Arkansas,  to  the  end  that  trials 
may  be  had  and  sentences  imposed  as  in  other  cases  of  like  nature;  and 
prisoners  bound  over  to  answer  to  indictments  in  the  Harrison  or  Texar- 
kana  divisions  of  the  western  district  of  Arkansas  for  offenses  committed 
in  those  divisions  and  who  are  incarcerated  in  the  Jail  at  Fort  Smith,  Ar- 
kansas, for  inability  to  furnish  bail,  and  who  desire  to  plead  'guilty'  to 
such  offenses,  may  on  their  own  motions  have  their  cases  submitted  to  a 
grand  jury  of  the  Fort  Smith  division  for  indictment  and  final  disposition 
in  the  courts  of  that  division,  or  in  proper  cases  may  plead  to  informations 
filed  in  the  proper  court  in  said  division  and  have  their  cases  disposed  of  as 
other  eases  of  like  nature  when  the  ofl'ense  was  committed  in  the  Fort 
Smith  division.  When  a  transfer  is  ordered,  as  provided  in  this  section,  the 
clerk  shall  make  out  and  forthwith  send  a  certified  copy  of  the  record 
entries,  together  with  the  indictment  and  all  the  original  papers,  to  the 
clerk  of  the  court  to  which  such  case  is  transferred,  who  shall  file  the 
same,  and  thereupon  the  case  shall  be  proceeded  with  as  other  cases  of 
like  nature  pending  in  such  court.  For  making  out  said  transcript  and 
forwarding  the  same,  together  witli  the  original  papers  in  said  case,  the 
clerk  of  the  court  shall  have  the  usual  compensation  for  making  out  tran- 
scripts, as  now  provided  by  law.  and  two  d(dlars  additional,  to  be  taxed  and 
paid  as  other  costs  in  like  cases."io 

§  411.     Change  of  venue  to  proper  division  in  Mississippi  where 
improperly  brought. 

The  statute  affecting  the  northern  Mississippi  district  provides 
that  ''whenever  a  defendant  is  sued  out  of  the  division  of  his  resi- 
dence and  is  not  joined  with  a  codefendant,  wliose  residence  is  in 
the  division  where  the  suit  is  brought,  he  may,  before  pleading 
tlierein,  on  motion  and  on  affidavit  of  the  division  of  his  residence, 
cliange  the  venue  to  the  court  of  the  division  of  his  residence,  which 

sAct  June  2,  190G,  c.  25G9,  34  Stat.  lOAct  June  2.  1906,  c.  2569,  §  2,  34 
206.  Stat.  207. 

522 


Procedure]  VENUE    OF    REMOVED    CAUSES.  |   412 

suit  shall  stand  for  trial  at  the  first  term  of  the  court  to  which  the 
venue  may  be  changed."  ^^     There  are  no  other  similar  statutory 
provisions  for  other  States. 
Author's  section. 

I  412.     Venue  on  removal  from  state  court  in  districts  contain- 
ing- judicial  divisions. 

Some  of  the  statutes  creating  divisions  in  judicial  districts  con- 
tain specific  provisions  governing  removal  of  cau^ses  from  State 
courts  therein.  In  the  legislation  as  to  divisions  in  the  southern 
and  middle  districts  of  Alabama,  soiithern  district  of  California, 
the  southern  district  of  Georgia,  eastern  and  western  districts  of 
Missouri,  southern  district  of  Ohio  and  eastern  district  of  Tennes- 
•see  it  is  provided  that  "in  all  cases  of  removal  of  suits  from  the 
■courts  of  the  State  ...  to  the  courts  of  the  United  States 
.  .  .  such  removal  shall  be  to  the  United  States  courts  in 
the  division  in  which  the  county  is  situated  from  which  the  re-- 
nioval  is  made,  and  the  time  within  which  the  removal  shall  be 
perfected,  in  so  far  as  it  refers  to  or  is  regulated  by  the  terms  of 
the  United  States  courts,  shall  be  deemed  to  refer  to  the  terms 
of  the  United  States  courts  in  such  division."^^  j^  all  of  these 
States  except  California  and  Georgia  there  are  other  divisions  of 
judicial  districts  for  whicli  no  such  provision  is  specifically  made. 
In  the  legislation  as  to  divisions  in  Georgia  (northern  district), ^'^ 
Iowa,  Louisiana  and  Minnesota,  there  is  provision  requiring  re- 
moval to  be  to  the  particular  division  where  the  State  court  in 
Avhich  suit  is  brought  is  situate,  but  no  provision  as  to  the  term  to 
which  the  cause  is  returnable.^-*  In  the  statutes  affecting  divisions 
in  Mississippi  ''all  laws  touching  the  removal  of  causes  from  State 

iiAct   June   15.    1882.   c.    218.    §   3.  p.    .328,    391.    40J:,    419,    U.    S.    Conip. 

22  Stat.  102,  U.  S.    ('(imp.  Stat.  1!»01,  Stat.  100.5,  p.  88.  104.    Alabama:    Act 

p.  379.  Marcli   3.  190.}.  c.   1419.  §  6.  33  Stat. 

i-'For   California    see   act   May   29.  988.  I'.  S.  Comp.  Stat.  1905,  p.  79. 
1900.    e.     5M,     §     7.     31     Stat.     220.         i^Oeorgia:      Act   Feb.   28.    1901.   c. 

Ceorfria:    Act  June  30,  1902.  c.  1.338.  G21.  §  3,  .3>1  Stat.  818. 
§  6,  32  Stat.  551;   act  March  3.  1905,         i^For  Iowa  see  act  July  20,   1882, 

c.  1.341,  §  6.  33  Stat.  1000.    Missouri:  c.  ,312.  §  9.  22  Stat.  173.     Louisiana: 

.\ct    Jan.    24.    1901.    c.    1G4,    §    7,    31  Act  Aug.  8,  1888,  c.  789.  §  7.  25  Stat. 

St^U.  739.     Obio:      Act  Feb.  4.   1880.  388;  act  Aug.  13,  1888.  c.  8ti.  §  8.  25 

o.   18,   §  8,  31    Stat.  04 :   act  Jan.  31.  Stat.    438.     ^Minnesota :       .\ct    April 

1905.  c.  287.  §  7.  33  Stat.  tV27.     Ten-  2«.    1890.    c.    167.    §    2.    26    Stat.    72. 

nev^ee:     Act  Feb.  7.   1900.  c.  10.  ii  7,  I'.  S.  Comp.  Stat.  1901,  pp.  341,  352, 

31    Stat.   6,  U.   S.   Comp.   Stat.    1901.  .366.  367,  .375. 

5-33 


§  413  VENUE    IN"    CIVIL  [Code  Fed. 

courts"  are  declared  applicable.'"'  Tlie  laws  creating  divisions  in 
Arkansas,  Illinois,  Kansas,  Kentucky,  Michigan,  North  Dakota, 
South  Carolina,  Texas,  Utah  and  Washington  contain  no  special 
provisions  as  to  venue  of  removal  causes.  Sometimes  the  provision 
of  such  statutes  as  to  the  place  of  trial,  or  place  to  which  process 
is  returnable,  or  from  which  process  shall  issue,  is  broad  enough 
to  appl}^  to  and  include  removed  causes.  The  practitioner  should 
consult  these,  as  elsewhere  set  forth,  ^^  ■-  and  also  keep  advised  as  ta 
later  legislation  affecting  the  organization  of  any  particular  dis- 
trict. Though  the  legislative  provision  as  to  removals  in  all  dis- 
tricts where  divisions  exist  is  not  complete  or  specific,  there  is  no 
evidence  of  an  intent  to  make  any  distinction  as  to  venue  in  such 
cases;  and  it  would  seem  that  in  all  districts  removed  cases  are 
intended  to  be  cognizable  in  the  division  where  the  State  court 
from  which  the  removal  is  made  is  situate,  and  that  the  time  for 
perfecting  the  removal  is  always  referable  to  the  term  of  the  Fed- 
eral court  in  such  division. 
Author's  section. 

§  413.     Concurrent  jurisdiction  of  southern  and  eastern  districts 
over  New  York  harbor. 

The  district  courts  of  the  southern  and  eastern  districts  of  New 
York  shall  have  concurrent  jurisdiction  over  the  waters  within  tlie 
counties  of  New  York,  Kings,  Queens,  and  Suffolk,  and  over  all 
seizures  made  and  all  matters  done  in  such  waters ;  and  all  processes. 
or  orders  issued  out  of  either  of  said  courts,  or  by  any  judge  there- 
of, shall  rim  and  be  executed  in  any  part  of  the  said  waters. 
R.  S.  §  542,  U.  S.  Comp.  Stat.  1901,  p.  397. 
This  provision  was  enacted  in  186.5.16 

§  414,     Place  of  return  of  process  in  western  New  York  district. 

All  process  in  admiralty  causes  and  proceedings  in  the  western 
district  of  New  York  shall  be  made  returnable  at  Buffalo.^ '^ 
Author's  section. 

iBAct  April  4.  1888.  c.  58.  §  2.  25        isAct  Feb.  25.  1865,  c.  54,  §  2,  IS 
Stat.   78:    Act  Julv   18.   1894,   c.    144,    Stat.  43-8. 

§  2,  28  Stat.  115,  "U.  S.  Comp.  Stat.        i^Act  Mav.  12,  1900,  c.  381,  §  5.  31 
1901.  pp.  382.  383.  Stat.    176,   U.    S.   Comp.   Stat.    1901, 

15%§  504,  et  seq.  p.  395. 

024 


ProceduieJ  AND    CRIMINAL    CAUSES.  §   417 

•§  415.  Venue  of  proceedings  by  National  Bank  to  enjoin  comp- 
troller. 
All  proceedings  by  any  national  banking  association  to  enjoin 
ihe  Comptroller  of  the  Currency,  nnder  the  provisions  of  any  law 
relating  to  national  banking  associations,  shall  be  had  in  the  dis- 
trict wliere  sucli  association  is  located. 

R.  S.  S  73G,  U.  S.  Comp.  Stat.  1901,  p.  586. 
This  provision  was  enacted  in  1864.18 

§  416.     Venue  of  patent  infringement  suits. 

In  suits  brought  for  the  infringement  of  letters  patent  the  cir- 
cuit courts  of  tlie  United  States  shall  have  jurisdiction,  in  law  or 
in  equity,  in  the  district  of  which  the  defendant  is  an  inhabitant, 
or  in  any  district  in  wliich  the  defendant,  whether  a  person,  part- 
nership or  corporation,  shall  have  committed  acts  of  infringement 
and  liave  a  regular  and  estal)lished  place  of  business.  If  such  suit 
is  brought  in  a  district  of  which  the  defendant  is  not  an  inhabitant, 
but  in  which  such  defendant  has  a  regular  and  established  place 
•of  business,  service  of  process,  summons  or  subpccna  upon  the  de- 
fendant may  be  made  by  service  upon  the  agent  or  agents  engaged 
in  conducting  such  business  in  the  district  in  which  suit  is 
bi'ought. 

Act  Mar.  3,  1897,  c.  395.  29  Slat.  095,  U.  S.  Comp.  Stat.  1901,  p.  58fl. 

The  provision  of  the  act  of  1887-1888,  that  no  civil  suit  shall  be  brouoht 
in  any  other  district  than  that  wliereof  the  defendant  is  an  inhabitant, 
does  not  apply  to  patent  infringement  suits. i  Hence,  until  the  above  pro- 
vision was  passed,  suits  could  be  prosecuted  in  any  district  where  valid 
service  could  be  had  upon  the  defendant. 2  This  provision,  however,  limits 
the  place  of  suit  to  the  district  in  which  the  act  is  committed  if  the  de- 
fendant has  there  established  a  place  of  business,  or  to  the  district  in 
which  such  defendant  resides.^  It  applies  only  to  infringers  who  are  in- 
habitants, and  not  to  suits  against  aliens,  whicli  may  be  brought  wherever 
the  defendant  is  found. < 

§  417.     Venue  of  suits  against  surety  companies  on  bonds  and 
recognizances. 

Any  surety  company  doing  biisiness  under  the  provisions  of  this 
act  [i.  e.,  act  relative  to  lionds,  recognizances,  etc.,  and  to  allow 

isAct  June  3.   1804,  c.  106,  §§  50,        sidem. 
57,  13  Stat.  115,  116.  4United    States    v.   Duplessis,   134 

iSee  ante,  §  401.  Fed.  930. 

2Bo\vprs   V.   Atlantic,   etc.    Co.    104 
Fed.  890. 

525 


§   418  A'ENUE    IN    (.IVIL  [("oilc   I  ed. 

certain  corporations  to  act  as  sureties]  may  be  sued  -in  respiK't 
thereof  in  any  court  of  the  United  States  wliich  has  now  or  here- 
after may  ]iave  jurisdiction  of  actions  or  suits  upon  such  roco.uni- 
zance,  stipulation,  bond  or  undertaking,  in  the  district  in  which 
such  recognizance,  stipulation,  bond  or  undertaking  was  made  or 
guaranteed,  or  in  the  district  in  which  the  priucipal  office  of  such 
company  is  located.  And  for  the  purposes  of  this  act  sucli  i-<"cogni- 
zance,  stipulation,  bond  or  undertaking  shall  be  treated  as  made  or 
guaranteed  in  the  district  in  which  the  office  is  located,  to  which 
it  is  returnable  or  in  which  it  is  filed,  or  in  the  district  in  wliich 
the  principal  in  such  recognizance,  stipulation,  bond  or  undertaking 
resided  when  it  was  made  or  guaranteed. 

§  5,  act  Aug.  13,  1894,  c.  282,  28  Stat.  280,  U.  S.  Coiup.  Stat.   1901,  p. 

2316. 
«, 

There  is  a  special  provision  regarding  suits  on  bonds  to  tlie  United  States 

given  by  contractors  on  public  buildings  and  the  venue  of  the  same.5 

§  418.  Venue  of  suits  for  combinations  in  restraint  of  import 
trade. 
Any  person  who  shall  be  injured  in  his  business  or  property  by 
any  other  person  or  corporation  by  reason  of  anything  forbidden 
or  declared  to  be  unlawful  by  this  act  [an  act  declaring  combina- 
tions and  conspiracies  in  restraint  of  import  trade  imlawful]  may 
sue  therefor  in  any  circuit  court  of  the  United  States  in  the  district 
in  which  the  defendant  resides  or  is  found.     .     .     . 

Part  of  §  77.  act  Aug.  27.  1894,  c.  349.  28  Stat.  570,  U.  S.  Comp.  Stat. 
1901,  p.  3203. 

This  provision  is  identical  witli  a  provision  of  an  act  of  1890,  ])assed  to 
protect  trade  and  commerce  against  unlawful  restraints  and  monopolies. « 

§  419.     Venue  of  partition  suit  where  United  States  are  parties. 

[Suit  for  partition  wliere  the  United  States  is  a  joint  tenant  or 
tenant  in  common  must,  if  brought  in  the  circuit  court],  be  brought 
in  the  circuit  court  of  the  district  in  whicli  sucli  land  is  situate. 

Part  of  §   1,  act   May  17,   1898,  c.  339.  .30  Stat.  41(;.  U.  S.  Comp.  Stat. 
1901.  p.  516. 

§  420.     Venue  of  suits  for  internal  revenue  taxes. 

Taxes  accruing  under  any  law  providing  internal  revenue  mar 

sPost.  §   1420.  et  seq.  Stat.  209,  U.  S.  Comp.  Stat.  1901,  p. 

6§  7,  act    Julv    2,  1890,  c.  047,  26    302. 

526 


■ 


Procedure]  AND   CRIMINAL   CAUSES.  S  423 

])v  suc'il  lor  and  recovered  either  in  tlie  district  where  the  liability 
for  such  tax  occurs  or  in  the  district  where  tlie  delinquent  resides. 
R.  S.  §  733,  U.  S.  Comp.  Stat.  1901,  p.  586. 
This  seftioii  was  carried  into  the  Revised  Statutes  from  an  act  of  186"!."^ 

§  421.     Venue  of  suits  for  penalties  and  forfeitures. 

Ail  pecuniary  penalties  and  forfeitures  may  be  sued  for  and 
recovered  either  in  the  district  where  they  accrue  or  in  the  district 
where  the  offender  is  found. 

R.  S.  §  732.  U.  S.  Comp.  Stat.  1001,  p.  585. 

This  provision  is  general  and  applies  to  a  number  of  penalties  and 
forfeitures  concerning  which  there  is  no  other  provision  as  to  venue. lo 
Under  its  terms,  an  action  to  recover  a  penalty  for  the  importation  of  a 
foreign  laborer  in  violation  of  an  act  of  Congress  may  be  brought  in  the 
di.strict  in  which  such  laborer  enters,  or  in  any  district  in  which  the  de- 
fendant  may  be  found. n 

§  422.     Venue  of  proceedings  for  forfeitures. 

Proceedings  on  seizures,  for  forfeiture  under  any  law  of  the 
United  States,  made  on  the  high  seas  may  be  prosecuted  in  any 
district  into  which  the  property  so  seized  is  brought  and  proceed- 
ings instituted.  Proceedings  on  such  seizures  made  within  any 
district  shall  be  prosecuted  in  the  district  where  the  seizure  is  made, 
e.xcept  in  cases  where  it  is  otlierwise  provided. 
R.  S.  §  734,  U.  S.  Comp.  Stat.  1901,  p.  586. 

A  seizure  being  made  on  the  high  seas,  jurisdiction  attaches  in  the  court 
of  any  district  into  which  the  property  is  brought. 1 3 

s<  423.  — for  trade  with  insurrectionary  districts. 

Proceedings  on  seizures  for  forfeiture  of  any  vessel  or  cargo  en- 
tering any  port  of  entry  which  has  been  closed  by  tlie  President  in 
pursuance  of  law,  or  of  goods  and  chattels  coming  from  a  State 
or  section  declared  by  proclamation  of  the  President  to  be  in  in- 
surrection, into  other  parts  of  the  United  States,  or  of  any  vessel 
or  vehicle  conveying  such  property  or  conveying  jDersons  to  or  from 
such  State  of  .section,  or  of  any  vessel  belonging,  in  wliole  or  in 
part,  to  any  inhabitant  of  sucli  State  or  section,  may  be  prosecuted 

8Act  July  13.  1866.  c.  184,  14  Stat.  isPhe  Merino.  9  Wheat.  391.  6  h. 
HI.  '  cd.    118;     the    Abby.    1     :\Iason.    .360. 

loPentlarge  v.  Kirby.  19  Fed.  501.     I'ed.  Cas.  No.  14. 

iil'nited  States  v.  Craig,  28  Fed. 
799.  SOO. 

527 


§  424  VEXUE    IN    CIVIL  [Code   Fed. 

in  any  district  court  into  which  the  property  so  seized  may  be  taken, 
and  proceedings  instituted ;  and  the  district  court  thereof  shall  have 
as  full  jurisdiction  over  such  proceedings  as  if  the  seizure  was 
made  in  that  district. 

R.  S.  §  564,  U.  S.  Comp.  Stat.  1901,  p.  460. 

The  above  provision  was  enacted  in  1861.15  The  President  is  authorized 
to  close  any  port  of  entry  in  a  collection  district  where  duties  cannot  be 
collected  on  account  of  insurrection,!  6  and  to  proclaim  any  part  of  the 
country  in  insurrection. i'? 

§  424.  —  for  forfeiture  of  captured  insurrectionary  property. 

Proceedings  for  the  condemnation  of  any  property  captured, 
whether  on  the  high  seas  or  elsewhere  out  of  the  limits  of  an} 
judicial  district,  or  within  any  district,  on  account  of  its  being 
purchased  or  acquired,  sold  or  given,  with  intent  to  use  or  emplo} 
the  same,  or  to  suffer  it  to  be  used  or  employed,  in  aiding,  abetting 
or  prompting  an  insurrection  against  the  government  of  the  United 
States,  or  knowingly  so  used  or  employed  by  the  owner  thereof,  oi' 
with  his  consent,  may  be  prosecuted  in  any  district  where  the  same 
may  be  seized,  or  into  which  it  may  be  taken  and  proceedings  first 
instituted. 

R.  S.  §  735,  U.  S.  Comp.  Stat.  1901,  p.  586. 

The  above  provision  as  carried  into  the  first  edition  of  the  Revisei! 
Statutes  from  an  act  of  1861,20  contained  the  words  "as  prize"  followint,^ 
the  words  "property  captured"  in  the  first  clause.  Those  words  were  strick- 
en out  by  an  amending  act  of  1875,i  and  the  provision  as  above  set  forth, 
was  embodied  in  the  second  edition,  or  "the  Revised  Statutes  of  1878." 
The  object  of  the  "Prize  acts"  of  which  this  provision  is  a  part,  was  to 
promote  the  suppression  of  the  Rebellion  by  subjecting  property  employed 
in  the  aid  of  it  with  the  owner's  consent,  to  confiscation. 2  All  property, 
whether  real  or  personal,  is  liable, s  but  seizure  is  necessary. 4  R.  S.  §  5309 
contains  a  somewhat  similar  provision  providing  that  "prizes  and  capture" 
of  property  employed  in  the  aid  of  insurrection  "shall  be  condemned  in  the 
district  or  circuit  court  of  the  United  States  having  jurisdiction  of  tlu- 
amovmt  or  in  admiralty  in  any  district  in  which  the  same  may  be  seized 
or  into  which  they  may  be  taken  and  proceedings  first  instituted." 

15 Act  Julv   13.  1861,  c.  3,  §§  4,  5,         ^Union   Ins.    Co.  v.   United  States. 

9.  12  Stat.  256.  6  Wall.  759.  18  L.  ed.  879. 

16R.  S.  §  5317.  3ldem:   Titus  v.  United  States,  20 

17R.  S.   §  5301.  Wall.  475,  22  L.  ed.  400. 

20Act   Aug.   6.   isni.  c.  00,   §   2,  12        ^United  States  v.  Stevenson,  3  Ben. 

Stat.   319.  119.  Fed.  Cas.  No.  16,396;   Morris  v. 

lAct  Feb.   IS.  1875,  c.  SO.  18  Stat.  United  States,  7  Wall.  578,  19  L.  ed. 

318.  -281. 

528 


Procedure]  AND   CRIMINAL   CAUSES.  §   426 

§  425.  Venue  of  suits,  civil  and  criminal,  under  submarine  cable 
law. 
Criminal  actions  and  proceedings  for  a  violation  of  the  provisions 
of  this  act  shall  be  commenced  and  prosecuted  in  the  district  court 
for  the  district  within  which  the  offense  was  committed,  and  when 
not  committed  within  any  judicial  district,  then  in  the  district 
court  for  the  district  within  which  the  offender  may  be  found;  and 
suits  of  a  civil  nature  may  be  commenced  in  the  district  court  for 
any  district  within  which  the  defendant  may  be  found  and  shall 
be  served  with  process. 

Part  of  §  13  of  act  Feb.  29,  1&88,  c.  17,  25  Stat.  4S,  U.  S.  Comp.  Stat. 
1901,  p.  3500. 

§  426.     Place  of  trial  in  criminal  causes. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be 
by  jury;  and  such  trial  shall  be  held  in  the  State  where  the  said 
crimes  shall  have  been  committed;  but  when  not  committed  within 
any  State,  the  trial  shall  be  at  such  place  or  places  as  tlie  Congress 
may  by  law  have  directed. 
U.  S.  Const,  art.  3,  §  2,  cl.  3. 

The  trial  of  crimes  by  jury  is  considered  in  a  following  chapter.'  The 
above  provision  is  confined  in  its  application  to  crimes,  its  obvious  intent 
being  to  exclude  petty  criminal  cases.*  It  forbids  the  finding  of  an  indict- 
ment in  one  State  for  a  crime  committed  in  another,  and  where  there  can 
be  no  original  indictment  in  a  State  there  can  be  no  complaint  entertained 
tliere.9  The  proper  proceeding  is  to  find  an  indictment  in  the  State  where 
the  crime  was  committed  and  then  demand  the  arrest  in  the  State  where 
the  defendant  is  found. lo  This  provision  is  in  conflict  with  that  part  of 
R.  S.  §  3894.  which  provides  for  the  trial  and  punishment  of  offenses  against 
the  postal  laws  in  any  other  district  than  where  committed,  and  renders 
that  portion  of  the  section  void.n  The  physical  absence  of  a  defendant 
from  a  state  when  the  acceptance  of  his  ofl'er  to  render  services  for  com- 
pensation in  violation  of  R.  S.  §  1782,  was  dispatched  by  mail,  does  not 
deprive  the  Federal  courts  of  that  State  of  jurisdiction. 1 2  When  the 
clime  is  not  committed  within  a  State  it  is  not  local  and  the  trial  "shnll 

"Post.  §  1571.  of  scq.  11  United  States  v.  Conrad.  59  Fed. 

sSchick    V.    United   States.    195  U.  46G. 
S.  69.  49  L.  ed.  102,  24  Sup.  Ct.  Rep.        i^Burton  v.  United  States.  202  U. 

.S2f5.  S.   344.   .50   L.   ed.   1057,  2G   Sup.  Ct. 

Hn    re  Ro«deitscher.   33    Fed.    G57.  Rep.   OSS. 

lOTn  re  Rosdeitscher.  33  Fed.  G57. 
Fed.  Pr()c."34.  529 


§   427  VENUE    IN    CIVIL  [Code   Fed. 

be  at  such  place  or  places  as  Congi'ess  may  by  law  have  directed. "i  3  That 
clause  imposes  no  restriction  as  to  the  place  of  trial  "except  that  the  trial 
cannot  occur  until  Congress  designates  a  place  and  may  occur  at  any  place 
which  shall  have  been  designated  by  Congress  previous  to  the  trial."i4 

§  427.     Place  of  trial  of  offenses  punishable  with  death. 

The  trial  of  offenses  punishable  with  death  shall  be  had  in  the 
(Oimtv  where  the  offense  was  committed,  where  that  can  be  done 
without  great  inconvenience. 

R.  S.  §  729,  U.  S.  Comp.  Stat.  1901,  p.  585. 

Special  circuit  court  sessions  for  the  trial  of  criminal  causes  are  author- 
ized by  a  previous  section. i*  The  benefit  of  the  above  provision  is  waived 
if  the  defendant  goes  to  trial  without  asking  for  a  trial  in  the  particular 
county.  IV 

§  428.     Offenses  on  high  seas   and  out  of  any   district,   where 
tried. 

The  trial  of  all  offenses  committed  upon  the  high  seas  or  else- 
where, out  of  the  jurisdiction  of  any  particular  State  or  district, 
shall  be  in  the  district  where  the  offender  is  found,  or  into  which 
he  is  first  brought. 

R.  S.  §  730,  U.  S.  Comp.  Stat.  1901,  p.  585. 

The  offense  must  be  a  violation  of  some  law  of  the  United  States  in 
order  to  be  prosecuted  under  this  provision. i  It  fixes  the  place  of  trial 
of  a  prosecution  for  an  assault  with  a  deadly  weapon  on  the  high  seas; 2 
of  a  charge  of  conducting  a  military  expedition  in  violation  of  R.  S.  §  5286, 
where  the  only  overt  act  was  committed  after  the  vessel  left  a  United 
States  port; 3  of  a  murder  committed  on  land  within  the  exclusive  juris- 
diction of  the  United  States,  but  not  within  any  judicial  district. 4 

The  government  does  not  have  the  election  as  to  which  of  two  districts 
the  suit  shall  be  brought  in,  but  where  the  defendant  is  apprehended  out- 
side the  jurisdiction  the  trial  shall  be  in  the  district  in  which  he  shall  first 
be  brought.    If  apprehended  in  a  particular  district  he  must  be  tried  in  that 

isUnited     States    v.    Jackalow,   1  lUnited  States  v.  Williams.  2  Fed. 

Black,  486.     17    L.    ed.   225;   United  61,  6  Sawy.  244. 

State*    V.   Dawson.    15   How.    467.   14  2United   States  v.  Arwo.   19  Wall. 

L.  ed.  775.  486,   22  L.  ed.   67.     See  also  United 

i^Cook  V.  United  States,  138  U.  S.  States  v.  Peterson,  64  Fed.  145. 

182.  34  L.  ed.  91.3,  11   Sup.  Ct.  Rep.  sUnited  States  v.  Hughes,  70  Fed. 

268.  972. 

16 Ante.  §  357.  -f  Jones  v.  United  States.  137  U.  S. 

ivUnited  States  v.  Cornell.  2  202,  34  L.  ed.  691,  11  Sup.  Ct.  Rep.  80. 
Mason,  91,  Fed.  Cas.  Xo.  14,868. 

530 


rrocedure]  AND   CRIMINAL    CAUSES.  §   430 

district. 5      In  order  to  be  "brought"  into  the  district  it  is  necessary  that 
the  defendant  be  apprehended. 6 

§  429.     Crimes  on  Pacific  islands  deemed  on  American  vessel. 

All  offen.ses  against  this  act  [an  act  to  prevent  the  sale  of  lire- 
arms,  opium  and  intoxicating  liquors  in  islands  of  the  Pacific] 
committed  on  any  of  said  islands  or  on  the  waters,  rocks  or  keys 
adjacent  thereto  shall  l^e  deemed  committed  on  the  high  seas  on 
board  a  merchant  ship  or  vessel  belonging  to  the  United  States, 
and  the  courts  of  the  United  States  shall  have  jurisdiction  ac- 
cordingly. 

§  3  of  act  Feb.  14,  190-2,  c.  18,  32  Stat.  331,  U.  S.  Comp.  Stat.  1903,  p. 
443. 

§  430.     Offenses  begun  in  one  district  and  completed  in  another. 

When  any  offense  against  the  United  States  is  begun  in  one 
judicial  circuit  and  completed  in  another,  it  shall  be  deemed  to 
have  been  committed  in  either,  and  may  be  dealt  with,  inquired  of, 
tried,  determined  and  punished  in  either  district,  in  the  same  man- 
ner as  if  it  had  been  actually  and  wholly  committed  therein. 

■R.  S.  §  731.  l\  S.  Comp.  Stat.  1901.  p.  585. 

The  section  was  enacted  in  1867. *  The  word  "circuit"  as  used  therein  is 
apparently  used  by  mistake  for  the  word  '"district."  Under  its  provisions 
the  ofi'ense,  under  R.  S.,  §  3894,  as  amended  in  1890.  of  knowinoly  causing 
lottery  tickets  to  be  delivered  by  mail  is  triable  in  the  district  in  which  such 
matter  is  received. 9  So  also  bribing  through  the  mail.io  or  the  tender  of 
a  contract  for  the  payment  of  money  in  a  letter,  to  induce  an  ofikial  to 
violate  his  dutyii  is  triable  in  the  district  in  whicli  sucli  money  or  contract 
is  received. 

But  the  provision  does  not  apply  to  a  libel  written  in  one  district  and 
jmblished  in  another.i-'  Xor  does  it  apply  to  an  indictment,  luidcr  R.  S., 
§  3893,  for  mailing  obscene  matter,  the  act  of  depositing  constituting  the 
entire  offense.is     So  also  the   obtaining  of  reduced   rates  by   false  billing, 

5United  States  v.  Bird,  1  Spr.  299,  i  "Benson  v.   Henkel,   198   U.   S.   1, 

Fed.  Cas.  No.   14.597.     See.  however,  49  L.  ed.  919,  25  Sup.  Ct.  Rep.  509. 

United   States  v.   Thompson.   1    Sum.  lUn    re    Pal  lister,    13«    U.    S.    257. 

168.    Fed.   Cas.   No.    16.492.      But   see  U  L.  ed.  515.  10  Sup.  Ct.  Rep.  1034. 

Kerr  v.  Shine,   136  Fed.  61.  69  C.  C.  i2See  In  re  Buell.  3  Dill.  116.  Fed. 

A.  69.  Cas.  No.  2.102. 

6Kcrr  v.  Shine.   136  Fed.  65.  69  C.  isUnited    States   v.   Comerford,   25 

0.  A.  69.  Fed.    902,   as    to    violation    of    inter- 

SAct   March    2.    1867,   c.    169.   §   .30,  state   commerce    act     in     permitting 

14  Stat.   484.  unlawful    charges   see   United    States 

SHorner   v.   United    States.    143   U.  v.    Fowkes,   53    Fed.    13,    3    C.    C.    A. 

S.  207.  .36  L.  ed.    126.  12  Sup.  Ct.  Rep.  394. 
407. 

531 


§   431  VEXUE  IN  CIVIL  [Code   I  e.I. 

in  violation  of  an  act  of  18891*  is  not  within  the  meaning  of  the  above 
section,  since  it  is  the  obtaining  of  the  transportation  by  false  pretenses 
which  is  prohibited  and  not  the  transportation  itself. is 

§  431.     Venue   of   equity   proceedings   against   carriers   for   dis- 
crimination. 

Every  violation  of  this  section  [punishing  failure  to  publisli  rate 
schedules  and  observe  them,  and  rebates,  concessions  and  discrimi- 
nations] shall  be  prosecuted  in  any  court  of  the  United  States  hav- 
ing jurisdiction  of  crimes  within  the  district  in  which  such  viola- 
tion was  committed,  or  through  which  the  transportation  may  have 
been  conducted;  and  whenever  the  offense  is  begun  in  one  juris- 
diction and  completed  in  another  it  may  be  dealt  with,  inquired  of, 
tried,  determined  and  punished  in  either  jurisdiction  in  the  same 
manner  as  if  the  offense  had  been  actually  and  wholly  committed 
therein. 

Part  of  §  1,  act  Feb.  19,  1903,  32  Stat.  847,  as  amended  June  29,  190G, 
c.  3591,  34  Stat.  588. 

The  procedure  in  causes  involving  the  commerce  laws  is  given  else- 
where. 1 6 

§  432.  — of  proceedings  by  carriers  against  Commerce  Com- 
mission. 
The  venue  of  suits  brought  in  any  of  the  circuit  courts  of  the 
United  States  against  the  Commission  to  enjoin,  set  aside,  annul 
or  suspend  any  order  or  requirement  of  the  Commission  shall  be 
in  the  district  where  the  carrier  against  whom  sucli  order  or  re- 
quirement ina,j  have  been  made  has  its  principal  operating  office, 
and  may  be  brought  at  any  time  after  such  order  is  pi'omulgated. 
And  if  the  order  or  requirement  has  been  made  against  two  or 
more  carriers  then  in  the  district  where  any  one  of  said  carriers 
has  its  principal  operating  office,  and  if  the  carrier  has  its  principal 
operating  office  in  the  District  of  Columbia  then  the  venue  shall  be 
in  the  district  where  said  carrier  has  its  principal  office ;  and  juris- 
iliction  to  hear  and  determine  such  suits  is  hereby  vested  in  such 
courts. 

Part  of  §  5,  act  June  29.  ]90(j.  c.  3591,  34  Stat.  592. 

14 Act  March  3,  1889,  c.  382,  §  10,  i5Davis  v.  United  States,  104  Fed. 
25  Stat.  855.  136,  43  C.  C.  A.  448. 

16 Post.  §   1345.  et  seq. 
532 


Proie<luiPl  AND   CRIMINAL    CAUSES.  S   -i^-j 

§  433.  —  of  forfeiture  proceedings  against  carrier  violating  Com- 
mission's order. 
The  forfeiture  provided  for  in  this  act  [i.  e.,  of  $5,000  far  fail- 
ure to  obey  orders  made  under  section  fifteen  of  commerce  act] 
shall  be  payable  into  the  Treasury  of  the  United  States,  and  shall 
be  recoverable  in  a  ci^^l  suit  in  the  name  of  the  United  States, 
brought  in  the  district  where  the  carrier  has  its  principal  operat- 
ing office,  or  in  any  district  through  which  the  road  of  the  carrier 
runs. 

Part  of  §  5,  of  act  June  29,  1906,  c.  3591,  34  Stat.  591,  amending  earlier 
law. 
A  forfeiture  of  $500  per  day  for  each  offense  of  failing  to  keep  proper 
accounts  and  records  is  also  by  the  act  declared  to  be  recoverable  "in  the 
same  manner  as  other  forfeitures  provided  for  in  this  act." 

§  434.  —  of  proceedings  to  enforce  Commission's  orders. 

If  any  carrier  fails  or  neglects  to  obey  any  order  of  the  Com- 
mission, other  than  for  the  payment  of  money,  while  the  same  is 
in  effect,  any  party  injured  thereby,  or  the  Commission  in  its  own 
name,  may  apply  to  the  circuit  court  in  the  district  where  such 
carrier  has  its  principal  operating  office,  or  in  which  the  violation 
or  disobedience  of  such  order  shall  happen,  for  an  enforcement  of 
.such  order. 

Part  of  §  5,  act  June  29,  1908,  c.  3591,  34  Stat.  591,  amending  earlier 
law. 

§  435.     Venue  of  offense  of  issuing  false  passports. 

[Any  person  who,  without  authority,  shall  grant,  issue  or  verify 
any  passport  or  like  instrument]  may  be  charged,  proceeded  against, 
tried,  convicted  and  dealt  with  therefor  in  the  district  where  he 
may  be  arrested  or  in  custody. 

Part  of  R.  S.,  §  4078.  as  amended  act  June  14,  1902,  c.  1088,  32  Stat. 
386,  U.  S.  Comp.  Stat.  1905,  p.  543. 


533 


CHAPTER  13.  -:  !'. •- 

JUDICIAL  OFFICERS  AND  THEIR  ACCOUNT^' m'd ENTERAL."   ' 

§  441.  Cross  references  and  matters  not  heneiw  treatBdJ>  oiit   in    Jii^iiO'id 

§  442.  "Officer"  and   "oath"  defined.         h  yy-:i-'\\i    /ajj   ni  'i'-  .'•viffi'i  oni 

§  443.  Relatives  of  judge  not  to  be  appointed  officers.  ,, 

>^  444.  Double  compensation   forbidden. 

J?  445.  Extra  compensation  forbidden.  '*'  '      "   ''" 

?:  446.  No  compensation  for  doing  another's  duties  or  extra  services. 

§  447.  No  extra  compensation  for  disbursing  monefS.'''    *'J  'junriiiol   A 

:§  448.  Judicial  officers  accounts  Certified  by  district  jtl&ggr"  '"'«  f-Jnuoona 

:$  449.  Approval  t)i  accbunts' dnd'c^St?  bills  by  *cd«rtl'--^^''*  "•■  "*■!•'*«"'  ainii- 

^^  450.  Accounts  to  be  in  duplicate — originals  sent  to  Washington. 

^  451.  Aqcpvii^ts  tpfb«i  submit  ted  to 'Attorney  Generaij'jou.!   io — •  .^Z^   '/ 

s,j-:|52.j  .fc||ipe^-visprY.,,po.\s;ej-  ot'^, Attorney  (jeneralipv^l-f^si-c^^^^f^j  vne  \l 

i^  453.  No  pavnjents  to  officers  in  arrears.     .         ■  '.    .     u  ,     ,,,,;■    ,r,, 

T:^  4o4.  '^statutes  lurnished   judges,   etc.   remain   public  property. 

55' 4'55.^-iPs(ymeiifof  e.^traofdiTiain^   expenses   incurred   by  ministerial  offi- 

§  45^,.,j^lo,w,anfie,rfp)>  mUefige.')<-)r!i'>  :>r!!tf:"io<{o  (sqionhq  3Ji  aBfl  •l'*(Tn:- 
S  4^,,^  — jtQ,,9l^jJf8^  piar^hajp ,,4114 .disjtjrjct  ^t.toppey^,,-^  'io  eoastbeJof-i i 

obio  i'vni- 
S  441.     Cross  references  and  matters  not  herein  treated.      .    ,, 

While  the  variou.s  provisions  of  law  governing  the  appointment. 

qualifications,  tennre,  duties  and  compensation  of  judicial  officers 

are  given  in  thig  aijtd  foliating  richapters^^ia-aunlbeiv' of  vstatwiw^^^ 

provisions  dealing  with  judicial  and  other  Federal  officers^penfil  in 

character  and   fprbidding  political   activity^   or  the  accepting  of 

bribes-  or  otjieri  lacts  of •  malfeasance,-  criminal  and  ;otherwise,f'  are 

omitted  because  beyond  the  sco]ie  of  this  Code.    <>  i^ajaenK  ad  x*^"' 

Author's  section.  .j-,.;!,  j..^  ■j'^nueinK  -■>.    -■•»   H  ..d  -H  \o  Ji^l 

.r.^G  .q  .cmv  ■■:>.}<  .qtitoJ  .a  .u  ,b8£ 
§  442.     "Officer"  and  "oath"  defined. 

In  determining  tlie  meaning  of  the  revised  statutes,  or  of  any  act 
or  resolution  of  Congress  passed  subsequent  to  February  35,  1871, 
.     .     .     reference  to  any  officer  shall  include  any  person  authorized 

iSee   act   Jan.   16,   18S3.   c.   27.   §§         sE.  g.   R.   S.   §   1784   U.   S.   Conip. 

11-15,  22  Stat.  406,  U.  S.  Comp.  Stat.  Stat.  inOl.  p.  1214.  forbidding  .solicit- 

1901.  pp.  1223.  1224.  ing  contributions  for  nifts  to  superior 

2R.  S.   §   5499,  U.   S.   Comp.   Stat,  oflicers. 
1901,  p.  ,3708. 


Procedure]        JUDICIAL    OFFICERS    AND   THEIR    ACCOUNTS.  §   445 

l)v  law  to  perform  the  duties  of  such  office,  unless  the  context  shows 
such  words  were  intended  to  be  used  in  a  more  limited  sense;  and 
a   requirement   of   an   "oath"  sliall    be    deemed    complied  with  by 
making  affirmation  in  judicial  form. 
R.  S.,  §  1,  U.  S.  Comp.  Stat.  1901,  p.  3. 

§  443.     Relatives  of  judge  not  to  be  appointed  officers. 

No  person  related  to  any  justice  or  judge  of  any  court  of  the 
United  States  by  affinity  or  consanguinity,  within  the  degree  of  first 
cousin  shall  liereafter  be  appointed  by  such  court  or  judge  to,  or 
-employed  by  such  court  or  judge  in,  any  office  or  duty  in  any  court 
of  which  such  justice  or  judge  may  be  a  member. 

§  7,  act  Mar.  3,  1887,  c.  373,  24  Stat.  555,  as  amended  §  7,  act  Aug.  13, 
1888,  c.  866,  25  Stat.  4.37,  U.  S.  Comp.  Stat.  IflOl.  p.  .579. 

Since  the  provi.sion  applies  to  appointments  ''hereafter"  made,  a  previous 
nppointment  is  not  invalidated  thereby. 6  An  appointment,  made  in  vio- 
lation of  this  provision,  should  be  attacked  by  a  direct  motion  to  set  aside 
the  order;  it  cannot  be  attacked  collaterally."  A  decree  by  such  appointee 
is  not  absolutely  void  so  that  the  court  will  have  power  to  set  aside  on 
motion  at  a  subsequent  term. 8 

§  444.     Double  compensation  forbidden. 

No  person  who  liolds  an  office,  the  salary  or  annual  compensa- 
tion attached  to  which  amounts  to  the  sum  of  two  thousand  five 
hundred   dollars,   shall   receive   compensation   for  discharging  the 
duties  of  any  other  office,  unless  expressly  authorized  by  law. 
R.  S.  §  1763,  U.  S.  Comp.  Stat.  1901,  p.  1205. 

The  appointment  of  persons  holding  an  office,  such  as  is  described  in  this 
section,  to  any  other  office  to  which  compensation  is  attached,  is  restricted 
by  provisions  of  act  July  31,  1894,  c.  174,  §  2,  and  act  June  3,  1896,  c.  314. 
^  1,  set  forth  below. 

This  provision  was  enacted  in  1852.l»t  tOfT7?ij. 

§  445.     Extra  compensation  forbidden. 

No  ci\il  officer  of  the  government  shall  hereafter  receive  any 
(ompensation  or  perquisites,  directly  or  indirectly,  from  the  Treas- 
ury or  property  of  the  T^nitetl  States  beyond  his  salary  or  compensa- 
tion allowed  by  law;  provided,  that  tliis  shall  not  be  construed  t'i 

6North western,  etc.  Ins.  Co.  v.  M-'iiniierSj^.gtCjiCo.  v.  Water  Co.  80 
Seaman,  80  Fed.  .^59.  Fed.  467. 

TElgutter  V.  Northwestern,  etc..  '"Act  Aug.  :'l.  IS.ri.  c.  108,  16 
Ids.  Co.  86  Fed.  500,  .30  C.  C.  A.  218.     Stat.  100. 

535 


I   446  JUDICIAL    OFFICERS  fOodo  Fed. 

prevent  the  employment  and  payment  by  tlie  department  of  jus- 
tice of  district  attorneys  as  now  allowed  by  law  for  the  performances 
of  services  not  covered  by  their  salaries  or  fees. 

§  3,  act  June  20,  1874,  c.  32S,  18  Stat.  109,  U.  S.  Comp.  Slat.  1901,  p. 
1207. 

§  446.     No   compensation   for   doing   another's   duties   or   extra 
services. 

No  allowance  or  compensation  shall  be  made  to  any  officer  or 
clerk,  by  reason  of  the  discharge  of  duties  which  belong  to  any  other 
officer  or  clerk  in  the  same  or  any  other  department ;  and  no  allow- 
ance or  compensation  shall  be  made  for  any  extra  services  what- 
ever, which  any  officer  or  clerk  may  be  required  to  perform,  unless 
expressly  authorized  by  law. 

R.  S.  §  1764,  U.  S.  Comp.  Stat.  1901,  p.  1206. 

§  447.     No  extra  compensation  for  disbursing  moneys. 

No  officer  in  any  branch  of  the  public  service,  or  any  other  per- 
son whose  salary,  pay  or  emoluments  are  fixed  by  law  or  regulations, 
shall  receive  any  additional  pay,  extra  allowance,  or  compensation, 
in  any  form  whatever,  for  the  disbursement  of  public  money,  or 
for  any  other  service  or  duty  whatever,  unless  the  same  is  authorized 
by  law,  and  the  appropriation  therefor  explicitly  states  that  it  is 
for  such  additional  pay,  extra  allowance  or  compensation. 
R.  S.  §  1765,  U.  S.  Comp.  Stat.  1901,  p.  1207. 

§  448.     Judicial  officers'  accounts  certified  by  district  judge. 

The  accounts  of  district  attorneys,  clerks,  marshals,  and  com- 
missioners of  circuit  courts  shall  be  examined  and  certified  by  the 
district  judge  of  the  district  for  which  they  are  appointed,  before 
they  are  presented  to  the  accounting  officers  of  the  Treasury  de- 
partment for  settlement.  They  shall  then  be  subject  to  revision 
upon  their  merits  by  said  accounting  officers,  as  in  case  of  other 
public  accounts :  provided,  that  no  accounts  of  fees  or  costs  paid 
to  any  witness  or  juror,  upon  the  order  of  any  judge  or  commis- 
sioner, shall  be  so  re-examined  as  to  charge  any  marshal  for  an 
erroneous  taxation  of  such  fees  or  costs. 

Part  of  R.  S.  §  846,  U.  S.  Comp.  Stat.  1901,  p.  647. 

5S6 


ProcPdiuel  AND     THEIR    ACCOUNTS.  §   449    [a] 

'Pile  above  provision  was  carried  into  the  TJevised  Statutes  from  an  act 
of  ]  856.1  <  A  proviso  for  payment  of  extraordinary  expenses  was  added  by 
act  of  1875.1  s  The  first  clause  of  the  provision  providing;  for  the  ex- 
amination and  certification  of  accounts  by  district  judges  is  apparently 
superseded  by  the  provisions  of  the  following  code  section.  Such  accounts 
are  examined  also  by  the  attorney-general. 1 6  It  is  the  duty  of  the  Su- 
preme Court  clerk  and  clerks  of  the  circuit  courts  of  appeals  to  make  an 
annual  accounting  of  fees  earned  during  the  year.i"  Appropriations  for 
the  investigation  of  accounts  of  judicial  officers  have  been  annually  made 
since  1884,  by  the  siuidry  civil  appropriation  acts.is  Cases  arising  under 
this  and  under  the  following  section  will  be  considered  under  the  latter 
section. 

§  449.     Approval  of  accounts  and  cost  bills  by  court. 

Before  any  bill  of  cost  shall  be  taxed  by  any  judge  or  other 
officer,  or  any  account  payable  out  of  the  money  of  the  United 
States  shall  be  allowed  by  any  officer  of  the  Treasury,  in  favor  of 
clerks,  marslials  or  district  attorneys,  the  part}''  claiming  such 
account  shall  render  the  same,  with  the  vouchers  and  items  thereof, 
to  a  United  States  circuit  or  district  court,  and,  in  presence  of  the 
district  attorney  or  his  sworn  assistant,  whose  presence  shall  be 
noted  on  the  record,  prove  in  open  court,  to  the  satisfaction  of  the 
court,  by  his  own  oath  or  that  of  otlier  persons  having  knowledge 
of  the  facts  to  be  attaclied  to  such  account,  that  the  services  therein 
charged  have  been  actually  and  necessarily  performed  as  therein 
stated;  and  that  the  disbursements  charged  have  been  fully  paid  in 
lawful  money  -^^^  and  the  coui-t  shall  thereupon  cause  to  be  entered 
of  record  an  order  approving  or  disapproving  the  account,  as  may 
be  according  to  law,  and  just.  United  States  commissioners  shall 
I'orwai-d  their  accounts,  duly  verihed  by  oath,  to  the  district  at- 
torneys of  their  respective  districts,  by  whom  they  shall  be  submitted 
for  approval  in  open  court,  and  the  court  shall  pass  upon  the  same 
in  the  manner  afoi'esaid.^^^ 

Part  of  §  1,  act  Feb.  22,  1875,  c.  95,  18  Stat.  333,  U.  S.  Comp.  Stat.  1901, 
p.  648. 

[aj     In  general — proof  of  account. 

The  a))ove  provision  that  the  accounts  on  approval  thereof,  be  forwarded 
to  the  Treasury   accounting  officer.s  is   superseded  by  a   following  section 

14 Act  Aug.  16.  185(i.  c.  124,  §§  1,  isFor  recent  enactments  see  act 
1,11  Stat.  49.  June  28.  1902.  c.   1301.  §    1.  32  Stat. 

isPost.  S  4.>5.  474.  and  act   March  3,   1903,  c.   1007, 

IK  Post.  §  451.  §   1.  32  Stat.  1140. 

I -See  post,  §§  587,  588. 

537 


I   450  JUDICIAL    OFFICERS  [Code   Fed. 

providing  that  such  accounts  be  first  sent  to  tlic  Attorney  Oeneral  and  ex- 
amined by  him.i  Prior  to  this  enactment  accounts  mentioned  herein  were 
regulated  by  the  previous  section, 2  and  such  accounts  were  apparently  to 
be  heard  by  the  judge  without  formal  proceedings  in  open  court. 3  An 
account  must  be  both  "rendered"  and  "'proved."  It  is  "rendered"  when  it 
is  presented.^ 

[b]     Accounts  to  be  approved  by  court. 

The  allowance  of  accounts  by  the  courts  is  not  a  judicial  act, 5  being 
little  more  than  a  certificate  of  regularity  and  geiuiineness  of  the  accounts 
and  vouchers.6  Since  the  allowance  or  disallowance  is  made  subject  to  the 
revision  of  the  accounting  officers  of  the  Treasury^  the  action  of  the  court 
is  largely  formal  and  ex  parte.s  But  the  approval  of  the  account  by  the 
court  is  prima  facie  evidence  of  its  correctness  and  is  conclusive  in  the 
absence  of  clear  and  unequivocal  proof. »  The  provision  is  not  intended  to 
relieve  from  the  penalties,  prescribed  by  R.  S.  §  5438,  for  presenting  false 
claims  against  the  United  States,  and  the  judge  passing  on  the  claim  or 
accoinit  is  an  officer  of  the  civil  service  within  the  meaning  of  that 
section. 10  Commissioner's  accounts  are  to  be  forwarded  to  the  district  at- 
torney of  the  particular  district  and  by  him  presented  to  the  court,  and  the 
Treasury  department  has  a  right  to  require  some  action  by  the  district  at- 
torney and  the  court  before  it  considers  such  claim. n  The  court  refusing 
to  act  in  such  a  case,  the  Court  of  Claims  has  jurisdiction  although  there 
has  been  no  presentation  to  the  Treasury  department. 12 

§  450.  Accounts  to  be  in  duplicate — originals  sent  to  Washing- 
ton. 
Accounts  and  vouchers  of  clerks,  marshals  and  district  attorneys 
shall  be  made  in  duplicate,  to  be  marked  respectively  "original'' 
and  "duplicate."  And  it  shall  be  the  duty  of  the  clerk  to  for- 
ward the  original  accounts  and  vouchers  of  the  officers  above  speci- 
-fied,  when  approved,  to  the  proper  accounting  officers  of  the  Treas- 
ury, and  to  retain  in  his  office  the  duplicates,  where  they  .shall  be 
open  to  public  inspection  at  all  times.     Nothing  contained  in  this 

1  Post,  §  451.   ,  ^^t^fl    .-■•    .8United<  S;ba,tes.  y.    McGourin,    10(i 

2See  United  States  v.  Strobeck,  48  Fed.  291,  4^5  C.  C'  A.  291. 

Fed.  !)02.  9 United  States  v.  Jones.  134  U.  S. 

3 In    re  District   Attorney.   23   Fed.  483.  33  L.  ed.   1007.  10  Sup.  Ct.  Rep. 

29.  (515;  United  States  v;  McGourin,  10(i 

4Butler  v.   United  State^.  87   Fed.  Fed.  288.  4.5  C.  C.  .\.  291;  Hallett  v. 

655.,     -:;•;''.;[    K  vm'   i.c,'. ,'\>-vi'-' i<  -    ■•  Uulted  States,  63  Fed.  817;   Kinnev 

sUnifed  States  v.  Strobach,  4^  Fed.  v.  United  States.  54  Fed.  315. 

!»02.  10 United    States    v.    Strobach,    48 

eUnited  States  v.  Ralston.  17  Fed.  Fed.  902.:             .-(     'n\    .v,./     ■ 

•  895.  iiUnited  States  V.  Knox,  128  U.  S. 

."'"TMcMul'en   v.    United   States,    146  230,  32  L.  ed.  465,  9  Sup.  Ct;  Rep.  63. 

V.  S.  360.  36  L.  ed.  1007,  13  Sup.  Ct.  i2idem. 

Rep.  127.  ,88S    T^r. 

538 


fiocedure]  AND   THEIR    ACCOUNTS.  §   452 

act  shall  be  deemed  in  any  wise  to  diminish  or  affect  the  right  of 

revision  of  the  accounts  to  which  this  act  applies  by  the  accoimtin^i' 

-officers  of  the  Treasury,  as  exercised  under  the  laws  now  in  force. 

I>art  of  §   1,  act  Feb.  22,  1875.  c.  95,  IS  Stat.  333,  U.  S.  Comp.  Stat. 

1901,  p.  649. 

The  terin  "duplieate"  refers  to  the  accounts  and  vouchers,  and  does  not 
include  the  order  of  the  court. i*  This  section  and  R.  S.  §  S40i5  reserve  to 
the  Ti'easury  officers  the  right  to  revise  accounts  passed  upon  by  the  court, 
but  such  officers  liaving  passed  an  account  allowed  by  the  court  and  the 
account  being  paid,  there  can  be  no  demand  for  repayment. is  There  is  no 
element  of  res  adjiidicata  in  their  actions, it  and  their  rejection  of  a  claim 
is  not  a  determination  of  a  "commission  or  department  authorized  to  hear 
-and  determine"  within  the  meaning  of  the  Tucker  act. is  Where  a  claim, 
having  been  presented,  is  suspended  for  further  explanation, is  or  until  the 
proper  vouchers  are  furnished  or  other  reasonable  requirements  are  com- 
plied with, 2  0  the  court  should  not  assume  jurisdiction  until  final  action  is 
taken  by  the  department,  or  a  reasonable  time  has  elapsed. 

§  451.     Accounts  to  be  submitted  to  Attorney  General. 

Before  transmission  to  the  department  of  the  Treasury,  the  ac- 
counts of  district  attorneys,  assistant  attorneys,  marshals,  com- 
missioners, clerks,  and  other  officers  of  the  courts  of  the  United 
States,  except  consular  courts,  made  out  and  approved  as  required 
by  law,  and  accounts  relating  to  prisoners  convicted  or  lield  for 
trial  in  any  court  of  the  United  States,  and  all  other  accounts  Ire^ 
lating  ito  the  business  of  the  Department  of  Justice  or  of  the  coiirts 
of  the  United  States  other  than  consular  courts,  shall  be  sent  with 
their  vouchers  to  tlie  Attorney  General,  and  exaQained-. under  his 
supervision.  -nt   cr,  iud   .'■':iv\jf]<<  o^.^.dt  'io 

Part  of  §  13,  act  July  31.  1894,  c.  174,  28  Stat.  210^  U;  ScfGomp.  Stat. 
1901,  p.  166. 

The  omitted  portion  of  the  scctiou  provides  for  the  monthly  payment  of 
JTidges,  Interstate  Commerce  Commissioners  and  other  ofTuors. 

§  452.     Supervisory  power  of  Attorney  General  over  accounts. 

Till'  -Miorney  General  shall  exercise  general  supervisory  powers 

■  -   ■  ,' ' 

MUnited  States  v.  Van  Duzee.  52  isErwin  v.  I'nited  States.  37  Fed. 

Fed.  9.10.  3  C.  C.  A.  361.  Affirming  4S  470.  2  L.R.A.  229. 

Fed.  643.  1 '.'Marvin    v.    United    States.    114 

isAnte.  §  44S.  Fed.  227.        '     ''''^'     -■-   '"'"'^-    ■"' 

i«Tuthill  V.  I'nilcd  States.  38  Fed!  ^ofnited    States    v.    Fletcher.  '147 

•138.  I"::  S.  61)7.  87  t.  ed.  ,322,  13  Sup.  Ct. 

I'Barbcr  V.  United  States,  3.1  Fed.  Rci).   434. 
886. 

539 


§  453  JI'DK  lAL    OKFICKRS  [Code   Fed. 

over  the  accounts  of  district  attoi'iicvs,  inarshals,  dorks  and  other 
•  iHicers  of  the  courts  of  tlio  United  States. 
R.  S.  §  368,  U.  S.  Comp.  Stat.  1001.  p.  210. 

Tliis  provision  was  enacted  in  1870.-  The  .supervisory  powers  authorized 
thereby  are  th(!  same  as  those  which  were  vested  in  the  Secretary  of  the 
Interior  before  the  creation  of  the  Department  of  Jii-stice,  being  limited  to 
the  e.xamination  and  auditing  of  accounts  and  the  certification  of  balances. 
They  do  not  extend  to  the  allowance  or  disallowance  of  accounts. 3 

§  453.     No  payments  to  officers  in  arrears. 

Xo  money  shall  be  paid  to  any  person  for  liis  compensation  who 
is  in  arrears  to  the  United  States,  until  he  luis  accounted  for  and 
))aid  into  the  treasury  all  sums  for  which  he  may  be  liable.  In  all. 
cases  where  the  pay  or  salary  of  any  person  is  withlield  in  pur- 
suance of  this  section,  the  accounting  officers  of  the  treasury,  if 
required  to  do  so  by  the  party,  his  agent  or  attorney,  shall  report 
forthwith  to  the  solicitor  of  the  Treasury  the  balance  due;  and  the 
solicitor  shall,  within  sixty  days  thereafter,  order  suit  to  oe  com- 
menced against  such  delinquent  and  his  sureties. 
R.  S.  §  17G6,  U.  S.  Comp.  Stat.  1901,  p.  1208. 

This  provision  was  passed  to  secure  and  protect  the  government  and  to 
insure  prompti;ess  on  the  part  of  public  officers.'* 

§  454.  Statutes  furnished  judges,  etc.  remain  public  property. 

All  statutes  heretofore  or  hereafter  furnished  by  the  United 
States  to  district  judges,  district  attorneys  and  clerks  of  the  United 
States  courts  under  this  or  any  other  law,  shall  not  become  the 
property  of  these  officers,  but  on  the  expiration  of  their  official 
term  shall  be  by  them  turned  over  aud  delivered  to  their  respective 
successors  in  office. 

Part  of  §  1  ,  act  Aug.  7,  1882,  c.  433,  22  Stat.  330,  U.  S.  Comp.  Stat.  1901, 
p.  121. 

§  455.     Payment  of  extraordinary  expenses  incurred  by  minis- 
terial officers. 
Where  the  ministerial  officers  of  the  United  States  have  or  shall 
incur  extraordinary   expense  in   executing   the  laws  thereof,  the 

2Act  June  22.  1870.  c.  150,  §  15,  ^United  States  v.  Potter,  Fed.  C:\^. 
1()  Stat.   164.  No.  16,076. 

3l'nited  States  v.  Waters,  133  U, 
S.  214,  215,  33  L.  ed.  596,  10  Sup.  Ct. 
Rep.  249. 

540 


T,u  idiiiel  AND     THEIR     ACCOUNTS.  S   457 

jiayiueiit  of  whicli  is  not  specifically  provided  for,  the  President  of 
the  United  States  is  authorized  to  allow  the  pa3^ment  thereof  under 
the  special  taxation  of  the  district  or  circuit  court  of  the  district 
in  which  the  said  services  have  been  or  shall  be  rendered,  to  be 
paid  from  the  appropriation  for  defraying  the  expenses  of  the 
Judiciary. 

Proviso  added  to  R.  S.  §  84G,s  by  act  Feb.  18,  1875,  c.  SO,  18  Stat.  318.  U. 
S.  Comp.  Stat.  1901,  p.  647. 

The  President  alone  is  authorized  to  allow  payment  of  this  class  of 
expenses,  and  his  decision   .should  not  be  interfered   with  by  the   courts." 

§  456.     Allowance  for  mileage. 

Hereafter  only  actual  traveling  expenses  shall  be  allowed  to  any 
person  holding-  employment  or  appointment  under  tlie  United 
States,  except  marshals,  district  attorneys  and  clerks  of  the  courts 
of  the  United  States  and  their  deputies;  and  all  allowances  for 
mileages  and  transportation  in  excess  of  the  amount  actually  paid, 
except  as  above  excepted,  are  hereby  declared  illegal ;  and  no  credit 
shall  be  allowed  to  any  of  the  disbursing  officers  of  the  United 
States  for  payment  or  allowances  in  violation  of  this  provision. 

§  1   of  act  Mar.  3,  187.5.  c.  133.  IS  Stat.  4,52.  U.  S.  Comp.  Stat.  1901,  p. 
1207. 

Mileage  as  an  element  in  fees  charged  or  taxed  is  governed  by  other 
provisions. 9  This  section  is  a  proviso  taken  from  the  Army  appropriation 
act  for  the  year  ending  June  30.  1876.  It  supersedes  a  somewhat  similar 
jjrovision  contained  in  an  act  of  lS74.io  By  the  addition  of  the  word 
"•hereafter"  it  is  made  permanent  and  the  exception  as  to  marshals,  etc.. 
is  also  added.  Its  object  is  to  establish  the  principle  of  paying  the  actual 
expenses  of  persons  traveling  in  the  service  of  the  government,  and  to 
abolish  a  specific  mileage  allowance.  It  applies  to  everyone  holding  em- 
ployment or  appointment  under  the  government  not  within  the  exception.il 
An  Indian  agent  is  entitled  under  its  provisions  and  under  R.  S.  §  2077.  to 
traveling  expenses,  including  board  wiiile  in  transit,  but  not  for  board  after 
his  arrival. 12 

§  457.  —  to  clerks,  marshals  and  district  attorneys. 

From  and  after  tlie  first  day  of  January.  187.T.  no  such  officer 
or  person  [i.  e..  attorneys,  marsluils.  clerks  or  their  deputies]  shall 

6See  ante,  §  44S.  nUnited   States   v.  :\rouat.   124  U. 

TStanton  v.  United  States,  .37  Fed.  ^'^  •'^03.  31  L.  ed.  463.  8  Sup.  Ct.  Rep. 

2152.  -505. 

9See  post.  §§  710,  712.  714,  etc.  i2United  States  v.  Smit!'.,  35  Fed. 

loAct   .Tune    Ifi.    1874.  c.   285,    §    1.  490. 
18  Stat.  72. 

&4I 


S  457  JUDICIAL    OFFICKKS    IN    GKNEKAL.  [Code   Fed. 

become  entitled  to  any  allowance  for  mileage  or  travel  not  actually 
and  necessarily  performed  under  the  provisions  of  existing  law. 

Part  of  §  7,  act  Feb.  22,  1875,  c.  95,  18  Stat.  334,  U.  S.  Comp.  Stat.  1901,- 
p.  649. 

The  omitted  portion  of  this  section  provides  that  the  provisions  of  §  1 
of  the  act  of  June  16,  1874  (mentioned  in  the  note  to  the  preceding 
section),  should  not  apply  to  attorneys,  marshals,  clerks  or  their  deputies. 
"Mileage  or  travel  not  actually  and  necessarily  performed,"  apparently 
refers  to  eases  where  process  is  sent;  by  mail  to  a  deputy  to  be  served  at  a. 
distant  place,i3  and  there  is  nothing  to  indicate  there  was  an  intention  lo 
do  away  with  the  allowance  for  travel  actually  performed. 1 4  It  does  not 
deny  the  marshal  full  mileage  on  eacli  writ  served  by  him  on  different 
persons,  although  one  journey  only  is  necessary, 1 5  and  the  fact  that  all 
the  writs  concern  the  same  suit  is  immaterial. i6  Sunday  trips  by  a 
judicial  officers  to  his  home  are  not  "travel  actually  and  necessarily  per- 
formed" witliin  the  meaning  of  the  section. i'?  Mileage  may  be  allowed 
such  officer,  however,  where  there  is  an  adjournment  over  intervening 
judicial  days  during  the  term. is 

isUnited    States    v.    Fletcher,    147  But  see  contra.  United  States  v.  Ral- 

U.  S.  034.  37  L.  ed.  323,  13  Sup.  Ct.  ston,   17   Fed.  900-901. 

Rep.  434;  Nixon  v.  United  States,  82  isXixon  v.  United  States.  82  Fed. 

Fed.  26.  29.  30. 

i4ln   re   Crittenden,   2   Flipp.   212,  1 7 United  States  v.  Shields,  153  U. 

Fed.   Cas.  No.  3,393.  S.  88,  38  L.  ed.  646,  14  Sup.  Ct.  Rep. 

i5See  Nixon  v.   United   States,  82  735. 

Fed.   26;    United   States  v.  Harmon,  i^Baxter  v.  United  States,  51  Fed. 

147  U.  S.  279,  37  L.  ed.  169,  13  Sup.  671,  2  C.  C.  A.  411. 
Ct.  Rep.  329;   16  Op.  Atty.  (Jen.  165. 


548 


CHAPTER  14. 

UNITED  STATES  JUDGES. 

.S  466.  Oath  of  United  States  judges. 

S  467.  Tenure  of  office  and  compensation. 

§  468.  Appointment  and  tenure  of  judges  of  Court  of  Claims. 

§  469.  Salaries  of  United  States  judges. 

§  470.  Salaries    to   be  paid   monthly. 

§  471.  When  judge  resigning,  entitled  to  salary  for  life. 

§  472.  Expenses  allowed  visiting  judge  holding  criminal  term  in  Ne\\" 
York. 

§  473.  Expenses  of  visiting  district  judge  in  New  York. 

§  474.  Expenses  of  judges  attending  circuit  court  of  appeals. 

§  475.  Expense  allowances  when  district  judges  directed  to  hold  court  out- 
side their  districts. 

§  476.  Judges  prohibited  from  practicing  law. 

§  477.  Judges  how  paid — to  whom  certificate  of  absence  sent. 

§  478.  Officers  to  perform  duties  though  suit  by  pauper  without  fees. 

§  466.     Oath  of  United  States  judges. 

The  justices  of  the  Supveme  Court,  the  circuit  judges  and  the 
district  judges,  hereafter  appointed,  shall  take  the  following  oatli 
before  they  proceed  to  perform  the  duties  of  their  respective  offices : 

"I, ,  do  solemnly  swear  (or  affirm)  that  I  will  administer 

justice  without  respect  to  persons,  and  do  equal  riglit  to  the  poor 
and  to  the  rich,  and  that  I  will  faithfully  and  impartially  discharge 

and  perform  all  the  duties  incumbent  on  me  as  ,  according 

to  the  best  of  my  aln'lities  and  understanding,  agreeably  to  the  Con- 
stitution and  laws  of  the  United  States:    So  help  me  God." 
R.  S.  §  712,  U.  S.  Comp.  Stat.  1001,  p.  578. 

This  provision  was  enacted  in  17S9.1 

§  467.     Tenure  of  office  and  compensation. 

'J'lie  judges,  both  of  the  Supreme  and  inferior  courts,  shall  hold 
tlieir  offices  during  good  behavior,  and  shall,  at  stated  times,  re- 

K\('t   Sept.  24.    17Sn.  c.   20.    ii   8,   1 
Stat.  76. 

543 


$  468  UNITED    STATES    JUDGES.  [Code   Fed. 

ceive  for  their  services,  a  compensation,  which  shall  not  be  dimia- 
ished  during  their  continuance  in  office. 
U.  S.  Const,  art.  3,  §  1,  el.  2. 

In  ordaining  and  establishing  inferior  courts  Congress  must  coiikt  on  the 
judges  thereof  tlie  constitutional  tenure,  i.  e.  "during  good  behavior. "'- 
Territorial  courts  are  not  "inferior  courts"  within  the  meaning  of  tiii.s  pro- 
vision, hence  judges  of  such  courts  are  subject  to  removal  and  su.spensioii 
as  other  civil  ofhcers  appointed  by  the  President,^  and  their  sa'ar}'  may 
be  diminished.* 

§  468.     Appointment  and  tenure  of  judges  of  court  of  claims. 

The  Court  of  Claims  .  .  .  shall  consist  of  a  chief  justic! 
and  four  judges,  who  shall  be  appointed  by  the  President.  In-  and 
\\'ith  the  advice  and  consent  of  the  Senate,  and  hold  their  oHices 
during  good  behavior. 

Part  of  R.  S.  §  1049,  U.  S.  Comp.  Stat.  1901,  p.  729. 

The  omitted  part  of  the  above  section  prescribes  the  salary  of  such  judges 
and  provides  that  they  shall  take  oath  to  support  the  Constitution  and 
faithfully  discharge  their  duties.  The  provision  as  to  salary  is  superseded 
by  the  following  code  section. 

^^  469.     Salaries  of  United  States  judges. 

The  following  salaries  shall  be  paid  to  tlie  several  judges  here- 
inafter mentioned  in  lieu  of  the  salaries  now  provided  for  by  law, 
namely:  To  tlie  Cliief  Justice  of  the  Supreme  Coiirt  of  the  United 
States  the  sum  of  thirteen  tliousaiid  dollars  a  year,  and  to  each  of 
the  associate  justices  thereof  the  sum  of  twelve  thousand  five  hun- 
dred dollars  a  year.  To  each  of  the  circuit  judges  the  sum  of  seven 
thousand  dollars  a  year.  To  each  of  the  district  judges  the  sum 
of  six  thousand  dollars  a  year.  To  the  cliief  justice  of  the  Court 
of  Claims  the  sum  of  six  thousand  five  hundred  dolhvrs  a  year,  and 
lo  each  of  tlie  other  judges  thereof  the  sum  of  six  thousand  dollars 
a  year.  To  the  chief  justice  of  the  court  of  appeals  of  the  District 
of  Columbia  the  sum  of  seven  thousand  five  hundred  dollars  a 
year,  and  to  each  of  the  associate  justices  thereof  the  sum  of  seven 
thousand  dollars  a  year.  To  the  cliief  justice  and  to  each  associate 
justice  of  the  supreme  court  of  the  District  of  Columbia  the  sum 
of   six    thousand   dollars   a   year.     All    of    said    salaries    shall   be 

2Kentuckv.  etc.  Co.  v.  Louisville  sHovvard  v.  United  States,  22  Ct. 
R.  Co.  37  Fed.  612,  2  L.R.A.  289.  CI.  316. 

4  See  Fisher's  Case,  15  Ct.  CI.  324. 
544 


Procedure]  UNITED    STATES    JUDGES.  I  471 

paid  in  monthly  installments.  One-half  of  the  amount  of  said 
salaries  which  shall  be  paid  to  the  chief  justice  and  to  the  associate 
justices  of  the  court  of  appeals  of  the  District  of  Columbia  and  to 
the  chief  justice  and  to  the  associate  justices  of  the  supreme  court 
of  the  District  of  Columbia  shall  be  defrayed  from  the  revenues  of 
the  District  of  Columbia. 

Act  Feb.  12,  1903,  c.  547,  32  Stat.  825,  U.  S.  Comp.  Stat.  1905.  p.  155. 

§  470.     Salaries  to  be  paid  monthly. 

Hereafter  the  salaries  appropriated  for  the  United  States  judges 
in  the  foregoing  paragraph  [i.  e.,  Supreme  Court  justices,  circuit 
and  district  judges  and  judges  of  the  supreme  court  of  the  Dis- 
trict of  Columbia],  and  judges  of  the  Court  of  Claims,  and  of  the 
Territories,  may  be  paid  monthly. 

Part  of  §   1,  act   Mar.  3,  1881,  c.   130,  21   Stat.  412,  U.  S.  Comp.  Stat. 
1901,  p.  450. 

A  somewhat  similar  provision  relating  to  judges  in  certain  districts  is 
contained  in  an  act  of  Mar.  3,  1891,7  and  a  general  provision  that  "judges 
receiving  salaries  from  the  Treasury  of  the  United  States  shall  be  paid 
monthly,"  in  an  act  of  1894.8  The  previous  section  also  contains  a  general 
provision  for  the  monthly  payment  of  judges,  but  judges  of  the  Territories 
are  not  mentioned  therein. 

§  471.     When  judge  resigning,  entitled  to  salary  for  life. 

When  any  judge  of  any  court  of  the  United  States  resigns  his 
office,  after  having  held  his  commission  as  such  at  least  ten  years, 
■and  having  attained  the  age  of  seventy  years,  he  shall,  during  the 
residue  of  his  natural  life,  receive  the  same  salary  which  was  by 
law  payable  to  him  at  the  time  of  his  resignation. 
R.  S.  §  714,  U.  S.  Comp.  Stat.  1901,  p.  578. 

This  provision  was  carried  into  the  Revised  Statutes  from  an  act  of 
lS()9.io  The  word  "salary"  as  used  herein  means  a  periodical  payment  de- 
pending upon  the  time,  and  not  upon  the  amount  of  services  rendered, 
hence  the  extra  pay  for  the  extra  services  performed,  under  R.  S.  §  6I3,ii 
is  not  witliin  the  meaning  of  the  term. 12. 

7Act  March  3.  1891,  c.  .541,  §  1.  V.        uSee  following  section. 
S.  Comp.  Stat.   1901,  p.  451.  laBenedict  v.  United  States.  176  U. 

sPost,  §  477.  S.  360,  44  L.  ed.  503,  20  Sup.  Ct.  Rep. 

lOAct  April  10.  1809,  c.  22,  16  Stat.    458. 
45. 

Fed.  Proc— 35.  545 


J   472  UNITED    STATES    JUDGES.  [Code   Fed. 

§  472.  Expenses  allowed  visiting  judge  holding  criminal  term  in 
New  York. 
At  every  such  term  [of  the  circuit  court  for  tlie  southern  dis- 
trict of  Xew  York  appointed  exclusively  for  the  trial  and  dis- 
posal of  criminal  business]  held  by  said  judge  of  said  eastern  dis- 
trict [of  New  York]  he  shall  receive  the  sum  of  three  hundred  dol- 
lars, the  same  to  be  paid  in  the  manner  now  prescribed  by  law  for 
the  pa3'ment  of  the  expenses  of  another  district  judge  while  holding 
court  in  said  district. 

Part  of  R.  S.  §  613,  U.  S.  Comp.  Stat.  1901,  p.  494. 

The  section  was  originally  enacted  in  1873.1  ■*  The  allowance  therein  of 
three  hundred  dollars  per  term  to  a  jvidge  of  the  eastern  district  holding 
criminal  term  in  the  southern  district  is  not  a  part  of  the  salary  of  such 
judge  on  his  resignation  under  R.  S.  §  714.15 

The  remainder  of  the  above  section  authorized  the  holding  of  such 
criminal  terms  and  is  given  elsewhere.is 

§  473,     Expenses  of  visiting  district  judge  in  New  York. 

Whenever  a  district  judge,  from  another  district,  holds  a  dis- 
trict or  circuit  court  in  the  southern  district  of  New  York,  in  pur- 
suance of  the  preceding  section,  his  expenses,  not  exceeding  ten 
dollars  a  day,  certified  by  him.  shall  be  paid  by  the  marshal  of 
said  district,  as  a  part  of  the  expenses  of  the  court,  and  shall  be 
allowed  in  the  marshal's  account. 

R.  S.  §  597,  U.  S.  Comp.  Stat.  1901,  p.  483. 
This  provision  was  enacted  in  1872.it 

§  474.     Expenses  of  judges  attending  circuit  court  of  appeals. 

Any  justice  or  judge,  who,  in  pursuance  of  the  provisions  of  this 
act,  shall  attend  the  circuit  court  of  appeals  held  at  any  place  other 
than  where  he  resides  shall,  upon  his  written  certificate,  be  paid 
by  the  marslial  of  the  district  in  which  the  court  shall  be  held  his 
reasonable  expenses  for  travel  and  attendance,  not  to  exceed  ten 
dollars  per  day,  and  such  payments  shall  be  allowed  the  marshal 
in  the  settlement  of  his  accounts  with  the  United  States. 

§  8,  act  Mar.  3,  1891,  c.  517,  26  Stat.  828,  U.  S.  Comp.  Stat.  1901,  p.  551. 

i4Act  Feb.  7.  1873.  c.  120.  17  Stat.        isAnte.   §   109. 
422.  iTAct    March    5,    1872,    c.    35,    17 

isPost.  §   471:   Benedict  v.   United    Stat.  36. 
States,   17(;  r.  S.  357.  44  L.  ed.  503. 
20  Sup.  Ct.  Rep.  458. 

546 


rrocednre]  UNITED     STATES    JUDGES.  !  478 

§  475.     Expense  allowances  when  district  judges  directed  to  hold 
court  outside  their  districts. 
It  is  usual  to  make  provision  in  the  annual  appropriation  acts 
each  3-ear  for  "reasonable  expenses  for  travel  and  attendance  of 
district  judges  directed  to  hold  court  outside  of  their  districts,  not 
to  exceed  ten  dollars  per  da}'  each,  to  be  paid  on  written  certificates 
of  the  judges,  and  such  payments  shall  be  allowed  the  marshal  in 
the  settlement  of  his  accounts  with  the  United  States."^* 
Author's  section. 

§  476.     Judges  prohibited  from  practicing  law. 

It  shall  not  be  lawful  for  an}-  judge  appointed  under  the  au- 
thority of  the  United  States  to  exercise  the  profession  or  employ- 
ment of  counsel  or  attorney,  or  to  be  engaged  in  the  practice  of  the 
law.  And  any  person  offending  against  the  prohibition  of  this  sec- 
tion shall  be  deemed  guilty  of  a  high  misdemeanor. 
R.  S.  §  713,  U.  S.  Comp.  Stat.  1901,  p.  578. 

This  section  was  carried  into  the  Revised  Statutes  from  an  act  of  1812.1 

§  477.     Judges,  how  paid — to  whom  certificate  of  absence  sent. 

Judges  receiving  salaries  from  the  Treasury  of  the  United  States 
shall  be  paid  monthly  by  the  disbursing  officer  of  the  Department 
of  Justice,  and  to  him  all  certificates  of  nonabsence  or  of  the  cause 
of  absence  of  judges  in  the  Territories  shall  be  sent.  Interstate 
Commerce  Commissioners  and  other  officers,  now  paid  as  judges 
are,  shall  be  paid  monthly  by  the  proper  disbursing  officer  or 
oflBcers. 

Part  of  §  13.  act  July  31,  1894,  c.  174,  28  Stat.  210,  U.  S.  Comp.  Stat. 
1901,  p.  166. 

§  478.  Officers  to  perform  duties  though  suit  by  pauper  without 
fees. 
The  officers  of  court  shall  issue,  serve  all  process  and  perform 
all  duties  in  such  cases  [i.  e.,  suits  in  forma  pauperis]  and  wit- 
nesses shall  attend  as  in  other  cases,  and  the  plaintiff  shall  have  the 
same  remedies  a.<  are  provided  by  law  in  other  cases. 

S  3  of  act  .Inly  20.  1892,  c.  209,  27   Stat.  252,  U.  S.  Comp.  Stat.  1901, 
p.  707. 

i9This  is  the  provision  of  the  ap-        lAct   Dec.    18,   1812,   c.   5,   2   Stat, 
propriation  act  of  March  3.  1903.  c.    788. 
1007,  §  1,  32  Stat.   1141. 

547 


§ 

487. 

:§ 

488. 

:§ 

489. 

-§ 

490. 

§ 

491. 

:§ 

492. 

■5 

493. 

§ 

494. 

§ 

495. 

:§ 

496. 

:§ 

497. 

:§ 

498. 

■:§ 

499. 

§ 

500. 

§ 

501. 

§ 

502. 

§ 

503. 

§ 

504. 

§ 

505. 

§ 

506. 

§ 

507. 

§ 

508. 

§ 

509. 

§ 

510. 

§ 

511. 

§ 

512. 

§ 

513. 

§ 

514. 

§ 

515. 

§ 

510. 

§ 

517. 

§ 

518. 

§ 

519. 

§ 

520. 

§ 

521. 

§ 

522. 

§ 

523. 

CHAPTER  15. 

ATTORNEYS  AND  COUNSEIXORS. 

Cross  references  and  matters  not  herein  treated. 

Admission  to  practice  before  Supreme  Court. 

Oath  on   admission   to  bar  of  Supreme  Court. 

Admission  of  women  to  practice  before  Supreme  Court. 

Admission  to  practice  before  circuit  court  of  appeals. 

Admission  to  practice  in  circuit  and  district  courts. 

Parties  may  plead  their  own  cases. 

Right  of  accused  to  counsel. 

Attorney  may  be  requested  to  represent  poor  person. 

Officers  forbidden  to  practice  as  attorneys. 

— penalty   for   practicing. 

Members  of  Congress  not  to  practice  in  Court  of  Claims. 

Federal   officers  may  not  act  for  claimants  against  United  States. 

Heads  of  departments  not  to  employ  counsel. 

Indians  may   liave  counsel   in  suit  against  United  States  for  dep- 
redations. 

One  district  attorney   for  every  district. 

Assistant   district   attorneys. 

When  district  attorneys  may  employ  clerks. 

Temporary   appointment   by   district   court   to    fill    vacancy. 

Residence  and  duties  of  district  attorney,  and  effect  of  removal  or 
neglect. 

Designation  of  residence   by   Attorney    (ieneral. 

Term  and  oath  of  district  attorney. 

Salaries  in  lieu  of  fees, — services  in  circuit  court  of  appeals. 

Salaries  in  particular  districts. 

District  Attorney's  salary  payable  monthly. 

Salary   in  southern   New  York   districts. 

Payn:ent  of  clerks  and  expenses  in  soutliern  district  of  New  York. 

Salary  of  district  attorney  in   Indian  Territory. 

Compensation  of  assistant  district  attorney. 

— assistants   in  certain   districts   may   receive   more. 

Office  expenses  allowed  district  attorneys. 

Allowances   for   traveling   and   other   expenses. 

Duty  to  make  quarterly   expense  accounts. 

vSemi -annual   return   of   fees   and   expenses. 

All  fees  included  in  return   with  certaiii  exceptions. 

Auditing  of  district  attorney's  expense  accounts. 

Fees  and  accoimts  of  attorney  for  District-  of  Columbia. 
548 


Pio.edme]  CKOSS    REFERENCES.  §   487 

§  524.  Duties    of   district    attorneys   in   general. 

§  .525.  Duty   to  det'end   officers  of   Congress. 

§  52G.  — duties  to  furnish  information  as  to  titles  to  public  property. 

§  527.  — to  render  legal  services  in  purchases  for  government. 

§  528.  — to  conduct  government  suits  respecting  national  banks. 

§  529.  Duty  as  to  suits  for  monej'  due  Post  Office  Department. 

§  530.  Duty  to  represent  government  in  prize  cases. 

S  531.  Duty  as  to  restoration  of  records  and  compensation  therefor. 

§  532.  Duty  to  represent  Indians. 

t)  533.  — to  institute  government  condemnation  proceedings. 

§  534.  — to  abate  unlawful  enclosure  of  public  lands. 

§  535.  - — to   restrain  combinations   in  restraint   of   import   trade. 

J5  536.  — to  prevent  violations  of  anti-trust  act  of  1890. 

§  537.  — to  prosecute  violations  of  Commerce  Commission's  orders. 

§  538.  — to  prosecute  violations  of  act  prohibiting  transportation  of  dis- 
eased cattle. 

§  539.  ^to  prosecute  suits  in  equity  against  carriers  violating  published 

rates. 

§  540.  Duty  to  proceed  against  marshal  failing  to  pay  over  fines. 

§  541.  — to  prosecute  offenders  against  alien  immigration  laws. 

§  542.  — to  prosecute  owner  of  obstructing  bridge,  refusing  to  alter  same. 

§  543.  — to  prosecute  persons  presenting  false  claims. 

§  544.  — to  prosecute  revenue  frauds. 

§  545.  Duty  to  make  return  to  Treasury  of  suits. 

§  546.  Duty   to   transmit  to  Treasury,  statement  of  suits   for   lines,   etc. 

§  547.  — to  make  return  of  revenue  suits  to  commissioner. 

§  548.  — to  report  on  post  office  suits. 

§  549.  Liability  of  district  attorney  on  receiving  a  bond  for  suit. 

§  550.  Rules   respecting   suits   where   United   States   are  parties. 

§  551.  Attorney  General  to  supervise  district  attorneys  and  marshals. 

§  552.  — to  retain  counsel  to  assist  district  attorneys. 

§  553.  — to  provide  otlier  departments  with  counsel 

§  554.  Restrictions  on  payment  of  special   counsel   tees. 

§  555.     Appointment   and   oath   of   special    counsel. 

§  556.     Solicitor  (ienoral  or  other  officers  may  be  sent  to  any  district. 

§  557.     Attorney  General  to  supervise  accounts. 

§  557V2-     Special  counsel  may  be  authorized  to  conduct  proceedings  in  any 
district. 

§  487.     Cross  references  and  matters  not  herein  treated. 

The  qualifications  and  rules  governing  attorneys  in  practice  be- 
fore executive  departments  as,  for  instance,  in  land  department 
and  pension  matters,  are  outside  the  scope  of  this  work.  Neither 
does  it  seem  advisable  to  attempt  to  include  the  statutes  dealing 
with  the  duties  of  the  Attorney  General  and  the  Department  of 
Justice,   or   temporary    statutes    authorizing    special    counsel    in 

549 


§   4SS  ATTOUNKYS    AND    COUNSELLORS.  [Code   leJ. 

designated  causes,  or  directing  the  law  officers  of  the  government 
to  appear  therein.  In  other  portions  of  this  work  will  be  found 
reguhitions  forbidding  appointment  of  district  attorneys  or  theii' 
assistants  as  receivers^  or  as  commissioners ;2  regulating  their  fees;"'' 
requiring  them  to  pay  costs  excessively  taxed  ;^  forbidding  bank- 
ruptcy referees  from  practicing  in  bankruptcy;^  and  payments  to 
and  priority  of  claim  of  bankrupt's  attorney  f  regulating  the  fee  to 
be  charged  on  admission  to  circuit  and  district  courts  f  forbidding 
judges  to  practice  law  f  providing  for  the  assignment  of  counsel  to 
defendants  in  treason  and  capital  cases,^  and  prescribing  district 
attorney's  duty  in  appealing  suits  against  the  United  States  under 
the  act  of  1887.io 

§  488.     Admission  to  practice  before  Supreme  Court, 

It  shall  be  requisite  to  the  admission  of  attorneys  or  counselors 
to  practice  in  this  court  that  they  shall  have  been  such  for  three 
years  past  in  the  supreme  courts  of  the  States  to  which  they  re- 
spectively belong,  and  that  their  private  and  professional  charactci' 
shall  appear  to  be  fair. 

Clause  1  of  rule  2  of  Supreme  Court,  promulgated  Feb.  5,  1790,  revised 

Dec.  term   1858.ii 

It   is    well    settled    that    it   rests   with   the   court   to   determine   who    is 
qualified  to  become  one  of  its  officers  as  an  attorney  and  counselor  and  for 
what  cause  he  ought  to  be  removed,i2  while  Congress  has  a  right  to  pre- 
scribe new   qualifications   it   cannot   exclude   parties   from  the   practice   of 
law  for  past  conduct,  thus  inflicting  punishment  for  past  offenses. is     Pro 
ceedings  against  attorneys  for  malpractice  or  unprofessional  conduct  need 
not  be   founded  on  formal   allegations.! "*      They   may  be   moved   by   third 
parties  on  affidavit,  or  taken  by  the  court  of  its  own  motion;  the  only  re 
quisite  being  that,  when  not  taken  for  matters  occurring  in  open  court,  no 
tice  and  opportunity  be  given  for  explanation  and  defense. is     Proceedings 
for  disbarment  have  been  sustained  for  participating  in  a  lynching,i6  for 

iPost,  §  1123.  1219  How.  13,  15  L.  ed.  565j  Ran- 

2Post,  §  673.  dall  v.  Brigham,  7  Wall.  535,  19  L. 

sPost,  §  717,  et  seq.                               ed.  291. 

4Post,    §    1838.  See    also    post,    §        isEx   parte  Garland,  4  Wall.  380. 

1836.  18  L.  ed.  .366. 

sPost,  §  2241.  i4Randall  v.  Brigham,  7  Wall.  540. 

«Post,   §   2221.  19  L.  ed.  293. 

7Post,  §  711.  iSRandall  v.  Brigham,  7  Wall.  540. 

8 Ante,  §  476.  19   L.   ed..  293.      See   also   E.>c    parte 

'Post,  §  1587.  Garland.  4  Wall.  379,  18  L.  ed.  366. 

lopost,  §   1481.  i6Ex  parte  Wall.  107  U.  S.  281,  27 

112  Dall.  399,  1  L.  ed.  431,  21  How.    L.  ed.  559,  2  Sup.  Ct.  Rep.  5S2. 

V. 

5t">0 


Procedure]  ADMISSION    TO    PRACTICE.  i   491 

filing  brief  amounting  to  a  libel  on  the  court, i'  for  violating  the  confidence 
of  a  former  client. is  While  the  court  will  not  ordinarily  disbar  an  attorney 
committing  an  indictable  offense,  not  in  his  official  character,  prior  to  trial 
and  conviction  therefor,  it  may  be  done  under  special  circumstances. is 
Damages  for  removal  after  hearing  will  not  lie  against  the  judge. 20 

§  489.     Oath  on  admission  to  bar  of  Supreme  Court. 

They  shall  respectively  take  and  subscribe  the  following  oath  or 

affirmation,  viz. :     I,  • ,  do  solemnly  swear  (or  affirm)  that  I 

will  demean  myself,  as  an  attorney  and  counselor  of  this  court, 
uprightly  and  according  to  law,  and  that  1  will  support  the  Con- 
stitution of  the  United  States. 

Clause  2  of  Rule  2  of  Supreme  Court,  promulgated  Feb.  7,  1791.2 
Conformably  to  an  act  of  18G53  the  above  oath  was  amended  and  the  ap- 
plicant required  to  swear  that  he  had  never  voluntarily  borne  arms 
against  the  United  States  since  he  had  been  a  citizen  thereof,  nor  exerci.sed 
the  functions  of  any  office  under  authority  in  hostility  thereto,  nor  given 
aid  and  comfort  to  any  persons  in  rebellion.*  That  act  was  declared  un- 
constitutional, however,5  and  the  amendment  was  rescinded. 6 

§  490.     Admission  of  women  to  practice  before  Supreme  Court. 

Any  woman  who  shall  have  been  a  member  of  the  bar  of  tho 
highest  court  of  any  State  or  Territory  or  of  the  supreme  court  ol' 
the  District  of  Columbia  for  the  space  of  three  years,  and  shall  havi" 
maintained  a  good  standing  before  such  court,  and  who  shall  l)i' 
a  person  of  good  moral  character,  shall,  on  motion,  and  the  pro- 
duction of  such  record,  be  admitted  to  practice  before  the  Supremo 
Court  of  the  United  States. 

Act  Feb.   15,  1879,  c.  81,  20  Stat.  292,  U.  S.  Comp.  Stat.   1901,  p.  59( 

§  491.     Admission  to  practice  before  circuit  court  of  appeals. 

All  attorneys  and  counselors  admitted  to  practice  in  tlie  Su- 
preme Court  of  the  United  States,  or  in  any  circuit  court  of  the 
United  States,  shall  become  attorneys  and  counselors  in  this  court 
on  taking  an  oath  or  affirmation  in  the  form  prescribed  by  Eule  'i 

1" United  States  v.  Creen,  85  Fed.  1   Cranch,  xvii.  1  Wheat,  xiv,  1    Pet. 

8fil.  vi.  21   How.  V. 

isi'nited  States  v.  Costen.  .38  Fed.  sAct   Jan.   24,   I860.   13   Stat.   424. 

24;   In  re  Boone.  83  Fed.  949.  ^2  Wall.  vii. 

i9Ex  parte  Wall.  107  I'.  S.  2Go.  27  ^Ex    parte   Garland.    4    Wall.    .3.33. 

L.  ed.  5.52.  2  Sup.  Ct.  Reo.  .5i;9.  18  L.  ed.  30(5;  In  re  Shorter.  Fc.i.  ("as. 

20Randal!  v.  Brigliani.  -  Wall.  5.35.  Xo.  12.811. 

19  L.  ed.  291.  fiDecember   term    ISOU.  4   Wall   vii. 

22  DaU.  399,  1  L.  ed.  431.     See  also 

551 


S   492  ATTORNEYS    AND   COUNSELLORS.  [Code  Fed. 

of  the  Supreme  Court  of  the  United  States,  and  on  subscribing  the 
roll,  but  no  fee  shall  be  charged  therefor. 
Rule  7  of  circuit  courts  of  appeals. 

§  492,     Admission  to  practice  in  circuit  and  district  courts. 

The  matter  of  admission  to  practice  in  the  various  circuit  and 
district  courts  is  governed  by  the  rules  of  such  courts,  which  should 
be  consulted.  By  a  provision  of  an  act  of  1902^  "no  amount  in  ex- 
cess of  one  dollar  shall  be  received  from  any  attorney  in  connec- 
tion with  his  admission  to  practice  in  a  circuit  or  district  coui't." 
Author's  section. 

§  493.     Parties  may  plead  their  own  cases. 

In  all  the  courts  of  the  United  States  the  parties  may  plead  and 
manage  their  own  causes  personally,  or  by  the  assistance  of  such 
counsel  or  attorneys-at-law  as,  by  the  rules  of  the  said  courts,  re- 
spectively, are  permitted  to  manage  and  conduct  causes  therein. 
R.  S.  §  747,  U.  S.  Comp.  Stcit.  1901,  p.  590. 

This  section  was  enacted  in  1739.1  o  It  may  be  taken  as  an  acknowlecl*]^- 
ment  by  Congress  that  the  admission  of  attorneys  and  counselors  to  prac- 
tice is  a  matter  within  the  judicial  power  of  the  United  States.n  An 
attorney  being  selected  has  exclusive  control  and  management  and  his* 
client  cannot  appoint  an  agent  to  represent  him  in  the  suit.i2  The  pre- 
sumption is  that  an  attorney  appearing  for  a  party  has  authority  to  do 
so,  and  such  authority  must  be  questioned  by  direct  attack.is  In  crim- 
inal practice  the  district  attorney  is  the  prosecutor,  no  private  prosecutor 
ever  having  been  recognized. i* 

§  494.     Right  of  accused  to  counsel. 

Every  person  who  is  indicted  of  treason,  or  other  capital  crime, 
shall  be  allowed  to  make  his  full  defense  by  counsel  learned  in  the 
law;  and  the  court  before  which  he  is  tried,  or  some  judge  thereof, 
shall  immediately,  upon  his  request,  assign  him  such  counsel,  not 
exceeding  two,  as  he  may  desire,  and  they  shall  have  free  access  to 
him  at  all  seasonaMe  hours.     .     .     . 

Part  of  R.  S.  §  1034.  U.  S.  Comp.  Stat.  1901.  p.  722,  section  given  in 
full,   post   §   1587. 
This  provision  is  from  an  act  of  1790.16 

SAct   June   28.    1902.   c.    1301.    §    1,  isBonnifield  v.  Thorp.  71   Fed.  924. 

32  Stat.  475.  i4United    States   v.    Stone,   8    Fed. 

H'Act   Sept.   24,    1789,  c.   20.    §    35,  2.32.     See  also  United  States  v.  Blais- 

1  Stat.  92.  dell,  3  Ben.  143.  Fed.  Cas.  No.  14,608. 
iiln  re  Shorter.  Fed.  Cas.  No.  12.-  i6Act    April    30,    1790,   c.   9,    §   29, 

811.  1  Stat.  118. 

1 -'Nightingale  v.  Oregon,  etc.  R.  R. 

2  Sawy.  338,  Fed.  Cas.  No.  10,264. 


Proieduiei  ATTORNEYS    AND    COUNSELLORS.  §  499' 

§  495.     Attorney  may  be  requested  to  represent  poor  person. 

The  court  may  request  any  attorney  of  the  court  to  represent 
such  poor  person  [as,  having  taken  the  pauper's  oath,  shall  com- 
mence an  action],  if  it  deems  the  cause  worthy  of  a  trial. 

Part  of  §  4,  of  act  of  July  20,  1892,  c.  200,  27  Stat.  252,  U.  S.  Comp. 
Stat.  1901,  p.  707. 

^Miiif  an  attorney  assigned  by  the  court  under  the  above  provision  will 
receive  nothing  in  case  of  nonsuccess,  he  may  if  successful  apply  to  the 
court  for  an  order  fixing  fair  compensation  to  be  paid  out  of  the  fund  re- 
covered. 1 7 

§  496.     Officers  forbidden  to  practice  as  attorneys. 

No  clerk,  a^ssistant  or  deputy  clerk,  of  any  Territorial,  district  or 
circuit  court,  or  of  the  Court  of  Claims  or  the  Supreme  Court  of 
the  United  States,  or  marshal  or  deputy  marshal  of  the  United 
States  within  the  district  for  which  he  is  appointed,  shall  act  as  a 
solicitor,  proctor,  attorney  or  counsel  in  any  cause  depending  in 
either  of  said  courts,  or  in  any  district  for  which  he  is  acting  as 
such  officer. 

R.  S.  §  748,  U.  S.  Comp.  Stat.  1901,  p.  590. 

§  497.  —  penalty  for  practicing. 

Whosoever  violates  the  preceding  section  [see  preceding  section] 
shall  be  stricken  from  the  roll  of  attorneys  by  the  court  upon  com- 
plaint, upon  wliich  the  respondent  shall  have  due  notice,  and  be 
heard  in  his  defense;  and  in  the  case  of  a  marshal  or  deputy 
marshal  so  acting,  he  shall  be  recommended  by  the  court  for  dis- 
missal from  office. 

R.  S.  §  749.  U.  S.  Comp.  Stat.  1901,  p.  591. 

This  provision   was  enacted  in  1873.1  s 

§  488.     Members  of  Congress  not  to  practice  in  Court  of  Claims, 
^lembers  of  eitlier  house  of  Congress  shall  not  practice  in  the 
Court  of  Claims. 

R.  S.  §  lOoB.  U.  S.  Comp.  Stat.  HjOI,  p.  731. 

§  499.     Federal  officers  may  not  act  for  claimants  against  United 
States. 
Every  officer  of  the  United  States,  or  person  liolding  any  place 

I'Whelan  v.  Manhattan  K.  Co.  SC,  isAct  Jan.  Ki.  1873,  c.  3«),  §  2,  IT 
Fed.  219.  SUit.  411. 


§   500  ATTORNEYS    AND    COUNSELLORS.  [Code   Fed. 

of  trust  or  protit,  or  discharging  any  official  function  under,  or  in 
connection  with,  any  executive  department  of  the  government  of 
the  United  States,  or  under  the  Senate  or  House  of  Eepresentative 
of  the  United  States,  who  acts  as  an  agent  or  attorney  for  prose- 
cuting any  claim  against  the  United  States,  or  in  any  manner  or 
by  any  means,  otherwise  than  in  discharge  of  his  proper  official 
duties,  aids  or  assists  in  the  prosecution  or  support  of  any  such 
claim,  or  receives  any  gratuity  or  any  share  of  or  interest  in  any 
claim  from  any  claimant  against  the  United  States,  with  intent  to 
aid  or  assist  or  in  consideration  of  having  aided  or  assisted,  in  the 
prosecution  of  such  claim,  shall  pay  a  fine  of  not  more  tlian  five 
thousand  dollars,  or  suffer  imprisonment  not  more  than  one  year, 
or  both. 

R.  S.  §  549S,  U.  S.  Comp.  Stat.  1901,  p.  3707. 

This  section  was  enacted  in  1853.1  Members  of  the  National  Guard 
of  the  District  of  Columbia  are  not  within  its  provisions.- 

§  500.     Heads  of  departments  not  to  employ  counsel. 

No  head  of  a  department  shall  employ  attorneys  or  counsel  at 
the  expense  of  the  United  States;  but  when  in  need  of  counsel  or 
advice,  shall  call  upon  the  Department  of  Justice,  the  officers  of 
which  shall  attend  to  the  same. 

R.  S.  §  189,  U.  S.  Comp.  Stat.  1901,  p.  94. 

This  provision  was  carried  into  the  Revised  Statutes  from  an  act  of 
1870.3  The  duties  of  officers  of  the  Department  of  Justice  to  render  serv- 
ices to  the  heads  of  Departments  are  prescribed  by  R.  S.  §  361.  Prior  to 
the  adoption  of  the  above  provision  the  heads  of  Departments  were  accus- 
tomed to  employ  district  attorneys  to  examine  into  titles  to  lands  sought 
to  be  purchased  for  the  United  States,^  and  since  its  adoption  such  serv- 
ices have  been  required  of  district  attorneys  by  the  Deparment  of  Jus- 
tice.5 

§  501.     Indians  may  have  counsel  in  suit  against  United  States 
for  depredations. 
Any  Indian  or  Indians  interested  in  tlie  proceedings   [for  col- 
lection of  claims  for  Indian  depredations]    may  appear  and  de- 
fend, by  an  attorney  employed  by  such  Indian  or  Indians  with  the 

lAct  Feb.  26,  1853,  c.  81,  §  2,  10  3Act  June  22,  1870,  c.  150,  §  17, 
Stat.  170.  16  Stat.  164. 

2Act  June  6,  1900,  c.  789,  §   1,  31         <19  Op.  Atty.  Gen.  63. 
Stat.  577.  5 Weed   v.   United   States,   82   Fed. 

419. 
554 


Procedure]  ASSISTANT    DISTRICT    ATTORNEYS.  {  803 

approval  of  the  Coiuiuissioner  of  Indian  Affairs,  if  he  or  they  shall 
■choose  so  to  do. 

Part  of  §  4.  act   Mar.  3,  1891,  c.  538,  26  Stat.  852,  U.  S.  Comp.  Stat. 
1901,  p.  761. 

Indians  appearing  by  their  own  attorney  are  not  entitled  to  any  other 
notice  than  the  service  of  the  petition  upon  the  Attorney  General.T 

§  502.     One  district  attorney  for  every  district. 

The  provisions  coutaineil  in  laws  creating  two  districts  where  one 
previously  existed,  and  providing  for  the  appointment  of  district 
■attorneys  therein  are  not  reproduced  here,  nor  are  the  statutes  pro- 
viding for  such  appointments  in  newly  admitted  States.  R.  8.  § 
767  provided  for  a  district  attorney  in  every  district  except  in 
Alabama,  Georgia  and  South  C^arolina.  Later  laws  have  j^rovided 
such  officials  for  each  district  in  Alabama  and  Georgia.**  South 
<^arolina  is  really  divided  into  two  divisions  rather  than  two  dis- 
tricts.^ Existing  laws  provide  for  a  district  attorney  for  every 
■district  in  the  United  States.  The  statutes  dividing  districts  into 
divisions  or  prescribing  terms  to  be  held  at  different  places  in  a 
•■district,  have  occasionally  specified  that  the  district  attorney  shall 
perform  the  duties  pertaining  to  his  office  in  the  circuit  and  dis- 
trict courts  when  sitting  in  such  divisions  or  places. ^"^  But  in  the 
majority  of  enactment's  any  such  provision  is  omitted.  It  would 
^eem  to  be  merely  declaratory  of  a  duty  which  is  sufficiently  pre- 
T^cribed  by  the  general  laws  upon  the  subject.  The  statutes  govern- 
ing many  district's  and  divisions  provide  for  deputy  marshals  and 
clerks  therein,  but  never  for  deputy  district  attorneys. 
Author's  section. 

The  validity  of  the  appointment  of  a  district  attorney  is  not  subject  to 
collateral  attack,  hence  caiuiot  be  considered  on  a  plea  to  an  indictment. n 

i^  503.     Assistant  district  attorneys. 

Whenever,  in  the  opinion  of  the  district  judge  of  any  district 
or  the  chief  Justice  of  any  Territory  and  the  district  attorney,  evi- 

TJaeger  v.  United  States,  27  Ct.  CI.  of  Julv  18,  1894.  c.  144.  §  8.  28  Stat. 

-278.  115,  U.  S.  Comp.  Stat.  1901,  p.  383. 

8G-eorgia  see  act  April  2.").  1S82,  c.  Missouri:     Act  Feb.  28,  1887.  c.  271, 

•87,     §     1.     22     Stat.     47.      Alabama:  S  5.  24  Stat.  425,  U.   S.  Comp.  Stat. 

Marcli    3.   1893.   c.  220.   27   Stat.   745,  1901,  p.  387. 

fL'.   S.  Comp.   Stat.   1901.  p.  319,  335.  iiUnited    States    v.    Mitchell,    136 

9Ante,  S  284.  Fed.  906. 

^oE.  g.   see   act   as   to   Mississippi 

553 


§   501  ATT01tXi:YS    AND    i'Ol'.NSlCLLOKS.  [Code   Ked_ 

denced  by  writing,  the  public  interest  requires  it,  one  or  more  as- 
sistant district  attorneys  may  be  appointed,  by  the  Attorney  Gen- 
eral :  but  such  opinion  shall  state  to  the  Attorney  General  tiie  facts 
as  distinguished  from  conclusions,  showing  the  necessity  therefor. 
Part  of  §  8,  act  May  28,  1890,  c.  252,  29  Stat.  181,  U.  S.  Comp.  Stat. 
1901,  p.  61.3. 

The  remainder  of  the  section  prescribes  the  compensation  of  such  as- 
sistants,! 2  the  allowances  for  traveling  and  other  expenses  of  the  dis- 
trict attorney  and  his  assistants,! 3  and  the  official  residence  of  the  dis- 
trict attorney.! 4  The  provisions  of  the  section  do  not  apply  to  the  ofHce 
of  the  district  attorney  and  his  assistants  for  the  southern  district  of 
New  York  or  for  the  District  of  Cohimbia.is  Assistant  District  Attorneys 
appointed  hereunder  are  officers  of  the  United  States  for  their  respective 
districts.  16 

§  504.     When  district  attorneys  may  employ  clerks. 

The  district  attorney  of  any  judicial  district,  when  the  facts 
showing  the  necessity  therefor  are  certified  by  the  district  judge  to 
the  Attorney  General,  may.  with  the  approval  of  the  Attorney  Gen- 
eral, and  no  longer  than  such  approval  lasts,  employ  necessary 
clerical  assistance  at  such  salary  or  salaries  as  shall  be  from  time  to 
time  fixed  by  the  Attorney  General. 

§   15,  act  May  28,   1896,  c.  252,  29  Stat.   183,  U.  S.  Gump.  Stut.    1901, 
p.  617. 

By  the  express  terms  of  §  24  of  the  above  act  this  provision  does  not 
apply  to  the  office  of  the  district  attorney  for  the  southern  district  of  New 
York,  or  for  the  District  of  Columbia.! s  Whenever  the  Attorney  (Jeneral 
deems  it  necessary  he  may  retain  attorneys  to  assist  the  district  attorneys 
in  the  discliarge  of  their  duties.! 9  But  unless  specially  authorized  by  law, 
no  compensation  is  allowed  any  person  other  than  district  attorneys  or 
their  assistants  for  legal  services  to  the  United  States  government  or  any 
branch  or  department  thereof.  When  specially  authorized  it  is  allowed  only 
on  certilicaie  o!  the  Attorney  General. 20 

55  505.     Temporary  appointment  by  district  court  to  fill  vacancy. 

In  case  of  a  vacancy  in      ...      |the  otfice  of  district  attorney] 

the  district  court  of  the  United  States  for  the  district  when  such 

vacancy  exists,  the  supi-eme  court  of  the  Territory,  and  the  Su- 

i2Post.  §  515.  i6ln  re  Leaken,  137  Fed.  680. 

!  3 Post.  8  51 S.  18 Act  Mav  28,   1896,  §   24,  c.  252, 

itPost.  §  507.  29  Stat.  186." 

15 Act  Mav  28.  1896.  c.   252,   §   24.         H'Pv.  S.   §  363. 
29  Stat.  ISO'.  ^"i;.  S.  §  365. 

556 


Procedure]  DISTRICT     ATTORNEYS.  §  oOS 

])reme  Court  of  the  District  of  Colunibia  may  appoint  persons  to 
exercise  the  duties  of  such  offices  Avithin  their  respective  jurisdic- 
tions, until  such  vacancy  shall  be  filled. 

Part  of  §  2,  act  June  24,  1898,  c.  495,  30  Stat.  487,  U.  S.  Coiiip.  Stat. 
1001,  p.  618. 

The  section  also  jnovides  siniilaiiy  as  to  marshals.2  A  somewhat  similar 
provision  as  to  the  appointment  of  a  district  attorney  for  the  District  of 
■Columbia  is  found  in  an  act  of  1897.3 

§  506.  Residence  and  duties  of  district  attorney,  and  eflfect  of 
removal  or  neglect. 
Every  .  .  .  United  States  district  attorney,  shall  reside 
permanently  in  the  district  where  his  official  duties  are  to  be  per- 
formed, and  shall  give  his  personal  attention  thereto;  and  in  case 
any  such  officer  shall  remove  from  his  district,  or  shall  fail  to  give 
personal  attention  to  the  duties  of  his  office,  except  in  case  of  sick- 
ness, such  office  sliall  be  deemed  vacant :  Provided,  That  in  the 
southern  district  of  Xew  York  said  officers  may  reside  within  twenty 
miles  of  their  districts. 

§  2  of  act  .Tune  20,  1874,  c.  328.  18  Stat.   109,  U.  S.  Comp.  Stat.  1901, 
p.  622. 

The  section  contains  ahso  a  similar  provision  as  to  cleiks  of  the  circuit 
■or  district  court, 5  and  marshals. «  The  fact  that  a  district  attorney  is  not 
a  permanent  resident  does  not  invalidate  an  indictment,  where  he  is  a  de 
facto  officer." 

§  507.     Designation  of  residence  by  Attorney  General. 

The  Attorney  General  is  authorized  to  fix  and  declare  the  place 
of  the  official  residence  of  the  district  attorney  and  of  each  of  his 
assistants :  Provided.  That  the  said  assistants  must  be  residents 
of  the  district  for  which  they  are  appointed. 

Part  of  §  8,  act  May  28,  1890,  c.  252,  29  Stat.  181,  U.  S.  Comp.  Stat. 

190).  p.  01.'.. 

§  508.     Term  and  oath  of  district  attorney. 

Tlie  provision  of  revised  statutes  that  "District  attorneys  shall  be 
appointt'd  for  a  term  of  four  years,  and  their  commissions  sliall 
cease  and  expire  at  the  expiration  of  four  years  from  their  respective 

2See  §  619.  spost.  §   6-23. 

xAct  Feb.  27,  1897,  c.  341,  29  Stat.  7Unit<-d  States  v.  Mitchell,  136 
600.  Fed.  906. 

5  Post.  §  571. 

557 


S   r,09  ATTORNEYS    AND    COUNSRIXORS.  [Code   Fed. 

dates;"  and  that  "every  district  attoriie v. before  entering  npou  lii- 
ottice.  shall  be  sworn  to  a  faithful  execution  thereof/'^  was  qiuili- 
lied  bv  an  act  of  1898  providing  that  "the  attorneys  .  .  .  of 
the  United  States,  including  the  District  of  Columbia  and  the 
Territories,  shall  continue  to  discharge  the  duties  of  their  respectivi- 
offices,  unless  sooner  removed  by  the  President,  until  their  suc- 
cessors shall  be  appointed  and  qualify  in  their  stead.  l>ut  they 
shall  be  appointed  and  commissioned  for  the  term  for  four  years 
as  now  provided  by  law.''^^  fp]-,e  provision  of  the  act  of  189^ 
above  mentioned  applies  also  to  marshals. .^^  The  President 
has  power  to  remove  a  district  attorney  within  the  four  years  and  to 
appoint  his  successor. ^^ 
Autlior's  section. 

§  509.  Salaries  in  lieu  of  fees, — services  in  circuit  court  of  ap- 
peals. 
On  and  after  the  first  day  of  July,  eighteen  hundred  and  ninety- 
six  .  .  .  United  States  district  attorneys  ■.  .  .  shall  be 
paid  for  their  official  services,  which,  in  the  case  of  district  attor- 
neys, shall  include  services  in  the  circuit  courts  of  appeals  of  their 
respective  circuits  wherever  sitting,  salaries  and  compensation  here- 
inafter provided  and  not  otherMise.f*^"^*^^ 

Part  of  §  6,  act  May,  28,  1896,  c.  252,  29  Stat.  179,  U.  S.  Conip.  Stat. 
1901,  p.  611. 

[aj     In  general. 

This  section  applies  also  to  marshals.i^  By  §  24  of  the  same  act  the 
above  section  and  two  others  were  declared  inapplicable  to  the  southein 
district  of  New  York  and  the  District  of  Columbia.  But  an  act  of  1900 
specified  that  so  much  of  the  above  section  as  relates  to  sej-vices  in  the 
circuit  court  of  appeals  shall  be  applicable  to  the  soiithern  district  nl' 
Xew  York;  15  and  an  act  of  1905  fixed  the  salary  in  that  district  at 
$10,000.16  Except  in  the  District  of  Columbia,  district  attorneys  are  not 
allowed  to  receive  fees  in  addition  to  their  salary. it 

[b]     Earlier  provision  that  compensation  to  be  from  fees  in  each  year. 

R.  S.   §   8431  s    provided  that   "the  allowances  for  personal   compensation 

PR.  S.  §  769.  U.  S.  Comp.  Stat.  1901.  769.  before  the  qualifving  act  of  1808. 

p.  600.  s<-p   Badffer   v.   I'liit^l    States.   93  I^. 

lOAct  June  24.  1898,  c.  495,  §  1.  30  S.  599.  23  L.  ed.  991. 
Stat.  487,  U.  S.  Comp.  Stat.  1901,  p.        i4Post.  §  63."^. 
618.  iBAet  June  6.  1900.  c.  785.  31  St.it. 

iiPost,  §  617.  304. 

i2Parsons  v.  United  States.  167  U.         isSee  post.  §  512. 
S.  324.  12  L.  ed.  185.  17  Sup.  Ct.  Rep.        i^See  post.  §  552. 
880;     Taylor    v.    Kercheval,  82    Fed.         isU.  S.  Com'p.  Stat.  1901.  p.  646. 
502;     as   to    interpretation    of  R.    S. 

558 


I 


I'rocediirc]  SALARIES   IX    PARTICULAR    DISTRICTS.  i   510 

of  district  attorneys.  .  .  .  for  each  calendar  year  shall  be  made  from 
;he  fees  and  emoluments  of  that  year,  and  not  otherwise."  This  seems 
to  be  superseded,  though  perhaps  operative  in  the  District  of  Columbia. 

It  also  specifies  clerksis  and  marshals.  Marshals,  however,  are  now  paid 
>alaries  in  lieu  of  fees, 20  and  it  is  questionable  whetlier  the  section  applies 
10  them. 

[c]  Old  provision  forbidding  allowances  for  rule  day  and  double  allow- 

ances when  both  courts  in  session. 
By  putting  district  attorneys  upon  a  salary  basis,  R.  S.  §  831  was  also 
superseded.  It  provided  that  "no  per  diem  or  other  allowance  shall  be 
made  to  any  district  attorney  .  .  .  for  attendance  at  rule  days  c^f  a 
circuit  or  district  court;  and  when  the  circuit  and  district  courts  sit  at  the 
same  time,  no  greater  per  diem  or  other  allowance  shall  be  made  to  any 
such  officer  than  for  an  attendance  on  one  court."2i 

[d]  District  attorneys  not  to  receive  fees  in  addition  to  salary. 

To  remove  any  doubt  as  to  the  interpretation  of  the  various  enactments, 
Congress  in  190.5  declared  that  "in  no  case  except  in  the  District  of  Co- 
lumbia shall  United  States  District  Attorneys  hereafter  receive  fees  of 
office  in  addition  to  the  salary  allowed  them  by  Iaw."22 

§  510.     Salaries  in  particular  districts. 

The  United  States  district  attorney  for  each  of  the  follow- 
ing judicial  districts  of  the  United  States  shall  be  paid  in  lieu  of 
the  salaries,  fees,  per  centums,  and  other  compensations  now^  al- 
lowed b}'  law  an  annual  salary  as  follows:  For  the  northern  and 
middle  districts  of  the  State  of  Alabama,  each  four  thousand  dol- 
lars ;  for  the  southern  district  of  the  State  of  Alabama,  three  thou- 
sand dollars;  for  the  Territory  of  Arizona,  four  thousand  dollars: 
for  the  eastern  di.strict  of  Arkansas,  four  thousand  dollars ;  for  the 
western  district  of  Arkansas,  five  thousand  dollars  ;  for  the  northern 
district  of  California,  four  thousand  five  hundred  dollars:  .  .  . 
for  the  district  of  Colorado,  four  thousand  dollars ;  for  the  district 
of  Connecticut,  two  thousand  five  hundred  dollars;  for  the  district 
of  Delaware,  two  thousand  dollars ;  for  the  northern  district  of  Flor- 
ida, three  thousand  five  hundred  dollars;  for  the  southern  district  of 
Florida,  three  thousand  five  hundred  dollars :  for  the  northern  dis- 
trict of  Georgia,  five  thousand  dollars;  for  the  southern  district 
of  Georgia,  three  thousand  five  hundred  dollars;  .  .  .  for  the 
northern  district  of  Illinois,  five  thousand  dollars:  for  the  southoi-n 

li'Post.  §  .582.  22Part  of  §  1.  act  March  ."?.  190-5.  c. 

2('Post.  §  G.3.3.  148.3.  .3.3  Stat.  1207.  U.  S.  Comp.  Stat. 

21U.  S.   Comp.   Stat.   1901,   p.  640.    1905,  p.  159. 

559 


§   510  ATTORNEYS   AND    COUNSELLORS.  [Code   Fed. 

district  of  Illinois,  five  thousand  dollars;  for  the  district  of  Indi- 
ana, five  thousand  dollars;  for  the  northern  and  southern  districts 
of  Iowa,  each  four  thousand  five  hundred  dollars ;  for  the  district 
of  Kansas,  four  thousand  five  hundred  dolUirs;  for  the  district  of 
Kentucky,  five  thousand  dollars;  for  the  eastern  district  of  Louisi- 
ana, three  thousand  five  hundred  dollars ;  for  the  western  district  of 
Louisiana,  two  thousand  five  hundred  dollars;  for  the  district  of 
Maine,  three  thousand  dollars;  for  the  district  of  ilaryland,  four 
thousand  dollars;  for  the  district  of  Massachusetts,  five  thousand 
dollars ;  for  the  eastern  district  of  Michigan,  four  thousand  dollars ; 
for  the  western  district  of  j\Iichigan,  three  thousand  five  hundred 
dollars;  for  the  district  of  Minnesota,  four  thousand  dollars ;  for  the 
northern  and  southern  districts  of  Mississippi,  each  three  thousand 
five  hundred  dollars ;  for  the  eastern  district  of  ]\Iissouri,  four  thou- 
sand five  hundred  dollars ;  for  the  western  district  of  Missouri ,  four 
thousand  five  hundred  dollars ;  for  the  district  of  Montana,  four 
thousand  dollars ;  for  the  district  of  Xebraska,  four  thousand  dol- 
lars ;  for  the  district  of  Nevada,  three  thousand  dollars ;  for  the  dis- 
trict of  New  Hampshire,  two  thousand  dollars ;  for  the  district  of 
Xew  Jersey,  three  thousand  dollars ;  for  the  district  of  New  Mexico, 
four  thousand  dollars ;  for  the  northern  district  of  New  York,  four 
thousand  five  hundred  dollars;  for  the  eastern  district  of  New  York, 
four  thousand  five  hundred  dollars ;  for  the  eastern  district  of  North 
C^'arolina,  four  thousand  dollars ;  for  the  western  district  of  North 
Carolina,  four  thousand  five  hundred  dollars;  for  the  district  of 
N'orth  Dakota,  four  thousand  dollars ;  for  the  northern  and  southern 
districts  of  Ohio,  each  four  thousand  five  hundred  dollars;  for  the 
district  of  Oklahoma,  five  thousand  dollars;  for  the  district  of  Ore- 
uon,  four  thousand  five  hundred  dollars ;  for  the  eastern  district  of 
Pennsylvania,  four  thousand  five  hundred  dollars ;  for  the  western 
district  of  Pennsylvania,  four  thousand  five  hundred  dollars :  for 
the  district  of  Ehode  Island,  two  thousand  five  hundred  dollars;  for 
the  eastern  and  western  districts  of  the  district  of  South  Carolina, 
four  thousand  five  hundred  dollars,  two  thousand  five  hundred 
dollars  of  which  shall  be  for  the  performance  of  the  duties  of  dis- 
trict attorney  for  the  western  district ;  for  the  district  of  South  Da- 
kota, four  thousand  dollars ;  for  the  eastern,  middle  and  western 
districts  of  Tennessee,  each  four  thousand  five  hundred  dollars : 
for  the  northern  district  of  Texas,  three  thousand  five  hundred  dol- 
lars ;  for  the  eastern  district  of  Texas,  five  thousand  dallars ;  for  the 

560 


I'i-...,.duieJ  SALARY    AND     EXI'CXSES.  §   51". 

western  district  of  Texas,  four  thousand  dollars;  for  the  district  of 
Utah,  four  thousand  dollars:  for  the  district  of  Vermont,  thrw 
thousand  dollars;  for  the  ea^stern  district  of  Virginia,  four  thou- 
sand dollars;  for  the  western  district  of  Virginia,  four  thousand 
five  hundred  dollars;  for  the  district  of  Washington,  four  thousand 
five  hundred  dollars;  for  the  district  of  West  Virginia,  four  thou- 
sand five  hundred  dollars ;  for  the  eastern  district  of  Wisconsin,  four 
thousand  dollars;  for  the  western  district  of  Wisconsin,  four  thou- 
sand dollars:  for  the  district  of  Wyoming,  four  thousand  dollars. 
§  9,  act  May  28,  189G,  c.  252,  29  Stat.  181,  U.  S.  Comp.  Stat.  1901.  pp. 
613-615. 

The  omitted  portions  of  the  above  section  fixed  the  salary  of  the  district 
attorney  for  the  southern  district  of  California  at  three  thousand  five  hun- 
dred dollars,  and  that  of  the  district  attorney  for  the  district  of  Idaho  at 
three  thousand  dollars.  An  act  of  1906  fixes  the  salary  of  these  oflicers  at 
four  thousand  dollars  respectively.!  The  salary  of  the  district  attorney  in 
the  southern  district  of  New  York  is  the  subject  of  a  separate  provision. 2 

§  511.     District  Attorney's  salary  payable  monthly. 

All  salaries  provided  by  sections  six  to  fifteen,  inclusive,  of  thi^ 
act  [includes  district  attorneys  and  their  assistants]-'  shall  be  paid 
monthly  by  the  Department  of  Justice. 

§  16  of  act  May  28,  1896,  c.  2.01.  29  Stat.  183,  U.  S.  Cuni[..  Stat.  1!)0I,  p. 
617. 

§  512.     Salary  in  southern  N.  Y.  district. 

The     district  attorney  for  the  southern   district  of   Xew  York 
shall  hereafter  receive  a  salary  of  ten  thousand  dollars  per  annum. 
Part  of  §  1,  act  Mar.  3,  1905,  c.  1483.  33    Stat.  1207,  U.  S.  Comp.  Stat 
1905,  p.  157. 

The  above  section  supersedes  the  provision  for  a  salary  of  six  thousand 
dollars  to  the  said  district  attorney  contained  in  R.  S.  §  770. 

§  513.  Payment  of  clerks  and  expenses  in  southern  district  of 
New  York. 
Clerks  and  messengers  in  the  office  of  the  United  States  district 
attorney  for  the  southern  district  of  Xew  York  shall  hereafter  be 
paid  from  this  appropriation  and  subsequent  appi-ojiriations  for  sal- 
aries and  expenses  of  district  attorneys,  by  the  disbursing  clerk  of 
the  Department  of  Justice,  in  such  numhei-  and  at  such  salaries  a.s 

lAct   .Tunc    .".O.     1900,     c.   .3914.    34  2Pust.  §  512. 

Stat.    75.3-754.  :!Sec-  ante,  §S   .■:04.  .509.  510;    post, 

^  515. 
Fed.  Proc— 30.                                  561 


§  514  ATTORNEYS   AND    COUNSELLORS.  [Code   Fed. 

may  be  fixed  by  the  Attorney  General,  and  that  such  office  expenses 
of  said  district  attorney  as  may  be  approved  by  the  Attorney  Gen- 
eral shall  also  be  paid  in  the  same  manner  and  from  the  same  ap- 
propriations as  similar  expenses  in  other  judicial  districts,  not- 
withstanding the  provisions  of  section  eight  hundred  and  thirty- 
six.  Revised  Statutes. 

From  act  June  30,  1906,  c.  3914,  34  Stat.  754. 

The  foregoing  is  a  proviso  in  the  sundry  civil  appropriation  act.  Previous- 
ly R.  S.  §  S36  had  provided  that  "There  shall  be  paid  to  the  district  at- 
torney for  the  southern  district  of  New  York,  in  addition  to  his  salary, 
at  the  rate  of  six  thousand  dollars  a  year,  such  sum  as  shall  be  necessary, 
together  with  the  costs  and  fees  allowed  him  by  law,  to  pay  such  amount 
as  may  be  fixed  by  the  Attorney  General  for  the  proper  expenses  of  his  of- 
fice. But  nothing  in  this  or  the  preceding  section  shall  forbid  the  allow- 
ance of  additional  compensation  for  services  in  prize  causes,  as  provided  in 
title  'Prize.' "5  R.  g.  §  835,  limited  the  amount  of  fees  which  the  district 
attorney  could  retain  for  his  compensation.  It  is  superseded  by  the  act 
providing  for  the  payment  of  salaries  to  the  district  attorneys  in  lieu  of 
fees. 6  The  additional  compensation  allowed  in  prize  cases  is  elsewhere 
stated.7 

§  514.     Salary  of  district  attorney  in  Oklahoma. 

The  district  attorneys  in  the  two  districts  of  Oklahoma  are 
to  receive  the  fees  and  compensation  now  allowed  by  law  to  of- 
ficers performing  similar  services  for  the  United  States  in  other 
districts."  ^■'^ 


§  515.     Compensation  of  assistant  district  attorney. 

Such  assistant  district  attorneys  shall  be  paid  such  salar)'^  as  tlio 
Attorney  General  may  from  time  to  time  determine  as  to  each,  which 
shall  in  no  case  exceed  two  thousand  five  hundred  dollars  per  an- 
num. 

Part  of  §  8  of  act  May,  28   1896,  c.  252,    29  Stat.    181,    U.    S.    Comp. 
Stat.  1901,  p.  613. 

§  516.  —  assistants  in  certain  districts  may  receive  more. 

The  restriction  of  assistants'  salaries  to  $2,500  does  not  apply  to 
assistants  in  the  southern  district  of  New  York  or  in  the  District  of 

5U.  S.  Comp.  Stat.   1901,  p.  644.  TPost,  SS  1330,  1331. 

«Ante,   §  509,  TVzAct   June    19,    1906,    c.   3335,    § 

13,  34  Stat.  275. 
562 


Jh. 


Procedure]  ALLOWANCES    AND    DUTIES.  §  519 

Columbia.^     Xor  does  it  apph'  to  the  first  assistant  to  the  district 
attorney  for  the  northern  district  of  Illinois.® 
Author's  section. 

§  517.     Office  expenses  allowed  district  attorneys. 

The  necessary  office  expenses  of  the  district  attorneys  .  .  . 
shall  be  allowed  when  authorized  by  the  attorney  general. 

§  14,  act  Mar  28.  1890,  c.  252,  29  Stat.  183,  U.  S.  Comp.  Stat.  1901,  p. 
617. 

The  above  provision  applies  also  to  marshals. lo  Disbursements  for 
printing  supplies  and  stenographers'  services  can  be  allowed  onlj-  on  proof 
that  they  were  necessary.n 

§  518.     Allowances  for  traveling  and  other  expenses. 

The  necessary  expenses  for  lodging  and  subsistence  actually  paid, 
not  exceeding  four  dollars  per  day  and  actual  and  necessary  travel- 
ing expenses  of  the  district  attorney  and  his  assistants,  while  ab- 
sent from  their  respective  official  residences  and  necessarily  em- 
])loyed  in  going  to,  returning  from,  and  attending  before  any  United 
States  court,  commissioner  or  other  committing  magistrate,  and 
while  otherwise  necessarily  absent  from  their  respective  official 
residences  on  official  business  shall  be  allowed  and  paid  in  tbe  man- 
ner hereinafter  provided. 

Part  of  §  8,  act  of  May  28,  1896,  c.  252,  29  Stat.  181,  U.  S.  Comp.  Stat. 
1901,  p.  613. 

By  §  24  of  this  act.  §  8,  above,  does  not  apply  to  the  office  of  the 
district  attorney  and  his  assistants  for  the  southern  district  of  Xew  York 
or  for  the  District  of  Columbia.  For  the  allowance  and  payment  of  ex- 
penses ''in  the  manner  hereinafter  provided"  see  post,  §  522.  This  provi- 
sion supersedes  an  act  of  1894,i3  providing  as  follows:  "Hereafter  the 
Unitc^d  States  district  attorney  shall  bo  allowed  only  mileage  actually 
(raveled  to  and  from  the  place  of  hearing  for  his  attendance  in  person  or 
by  his  assistant,  before  a  United  States  Commissioner  or  other  com- 
mitting magistrate,  in  each  case,  and  no  more." 

§  519.     Duty  to  make  quarterly  expense  accounts. 

Wbenever  in  this  ajct  an  officer  is  allowed  actual  expenses  [this 

sSee   §  24  of  act  Mav  28.   1896.  c.  mPost.   §  637. 

252.  U.  S.   Comp.   Stat.'  1901.  p.  618.  "United     States     v.     Colman.    76 

sSee  act  INlnrch  3,   1903.  c.  1007.  §  Fed.  214.  22  C.  C.  A.  1.35. 

1.  .32   Stat.   1141,  U.   S.   Comp.   Stat.  i^Act    Aug.    18,    1894.    c.    301,    28 

1903,  p.  96.  Stat.  372. 

503 


§  520  ATTORNEYS  AND  COUNSELLORS.         [("oile  Fed. 

inchules  district  attonievs  and  their  assistants]  the  account  there- 
for shall  be  made  out  quarterly,  in  accordance  with  rules  and  regu- 
lations prescribed  bv  the  Attorney  General.  When  made  out  the 
account  shall  be  veritied  on  oath  before  an  othcer  authorized  to  ad- 
minister oaths. 

Part  of  §  13,  act  May  28,  189^,  c.  252,  29  Stat.  183,  U.  S.  Comp.  Stat. 
1901,  p.  616. 

The  omitted  portion  of  the  section  provides  for  the  auditing  of  dia- 
trict  attorneys'  expense  accounts, i^  and  prescribes  also  tlie  duties  of  mar- 
shals as  to  their  accounts.^s 

§  520.     Semiannual  return  of  fees  and  expenses. 

Ever\'  district  attorney  .  .  .  shall,  on  the  iirst  days  of  Jan- 
uary and  July,  in  each  year,  or  witliin  thirty  days  thereafter,  make 
to  the  AttoT-ney  (leneral.  in  sueli  form  as  he  may  prescribe,  a  writ- 
ten return  for  the  half  yeai"  ending  on  said  days,  repsectively,  of 
all  the  fees  and  emoluments  of  his  office,  of  every  name  and  charac- 
ter, and  of  all  the  necessary  expenses  of  his  office,  including  neces- 
sary clerk  hire,  together  with  the  vouchers  for  the  payment  of  the 
same  for  such  last  half  year.  He  shall  state  separately  in  such  re- 
turns the  fees  and  emoluments  received  or  payable  under  the  bank- 
rupt act.  .  .  .  Said  returns  shall  be  verified  by  the  oath  of  the 
officer  making  them. 

Part  of  R.  S.  S  833,  V.  S.  Comp.  Stat.  1901.  p.  642. 

This  section  also  includes  marshals,! "  but  is  superseded  by  a  later  law  re- 
quiring quarterly  returns  as  to  expenses  and  giving  salaries  in  lieu  of  fees. is 
This  and  the  following  section  are  superseded  as  to  district  attorneys  other 
than  the  district  attorney  for  the  District  of  Columbia  by  the  provision 
for  the  payment  of  salaries  instead  of  fees.is  Except  in  the  District  of 
Columbia  no  district  attorney  can  receive  fees  in  addition  to  his  salary. 20 
The  section  also  includes  clerks  of  the  circuit  and  district  courts,  but  may 
be  regarded  as  superseded  as  to  them  by  a  similar  provision  of  an  act 
of   -Tune    28,    1902.1 

§  521.     All  fees  included  in  return  with  certain  exceptions. 

The  preceding  section  shall  not  apply  to  the  fees  and  compensa- 
tion allowed  to  district  attorneys  by  sections  eight  hundred  and 
twenty-five  and  eight  hundred  and  twenty-seven.     All  other  fees, 

itPost.  §   522.  isPost,  §   74.1.     See  also  preceding 

isPost.   S  641.  section. 

iTSee  post.  §  641.  20 Ante.    §    509    [d] 

isPost,  §§  633,  634.  iSee  post,  §  589. 

564 


Procedure]  DUTIES  IX   GENERAL.  S  524 

(•har;.>e8  and  emolmiionts  to  which  a  district  attorney  .  .  .  may 
be  entitled,  by  rea.son  of  the  discharge  of  the  duties  of  his  office,  a^^ 
now  o]'  hereafter  prescribed  by  law,  or  in  any  case  in  which  the 
C^nited  States  will  ))e  bound  by  the  judgment  rendered  therein, 
wiiether  prescribed  by  statute  or  allowed  by  a  court,  or  any  judge 
thereof,  shall  be  included  in  the  semiannual  return  required  of 
said  officers  by  the  preceding  section.^ 

R.  S.  §  834,  U.  S.  Comp.  Stat.  1901,  p.  643. 

This  section  also  specifies  marshals  but  is  superseded.  ■*  It  is  apparent- 
ly in  force  as  to  district  attorneys  only  in  the  District  of  Columbia  and 
the   southern  district  of  New   York.    5 

§  522.     Auditing  of  district  attorney's  expense  accounts. 

The  expense  accounts  of  the  district  attorneys  and  their  assist- 
ants, when  made  out  in  accordance  with  this  act,  shall  be  submitted 
to  and  examined  by  the  circuit  court  or  district  court  of  the  dis- 
trict, and  when  approved  l)y  the  court  shall  be  audited  and  allowed 
as  now  provided  for  by  law. 

Part  of  §   13  of  act  May  28,  1896,  c.  252,  29  Stat.   183,  U.  S.  Comp. 
Stat.  1901,  p.  016. 

The  section  also  requires  expense  accounts  to  be  made  out  quarterly: •"> 
and  prescribes  the  duties  of  marshals  aa  to  their  expense  accounts. 'i' 

§  523.     Fees  and  accounts  of  attorneys  for  District  of  Columbia. 

The  emolument  returns  of  the  attorney  of  the  United  States  foi- 
the  District  of  Columbia  shall  be  returned  to  the  Attorney  General., 
and  the  accounts  of  the  said  attorney  shall  be  rendered,  audited. 
and  paid  in  the  same  numer  as  accounts  of  all  other  district  at- 
torneys are  rendered,  audited  and  paid. 

Act  Dec.  14,  1877,  20  Stat.  7,  Sup.  R.  S.  p.  149. 

This  provision  as  to  retmns  seems  covered  by  similar  provisions  set  forth, 
elsewhere.^ 

§  524.     Duties  of  district  attorneys  in  general. 

It  shall  i)e  the  duty  of  every  district  attorney  to  prosecute,  in 
his  disti'ict.  all  delincpients  for  crimes  and  offenses  cognizable  under 
th(>  niitliority  of  the  United  States,  and  all  civil  actions  in  which  the 

^Sop  ])rc(i'(iiii^  si'clinn.  'Post,  §  641. 

4Seo  po>t.  SS  633.  634.  641.  sSee   ante,    §    520.    and   note.      Se<» 

5See  ante.  §  520.  and  note.  also  §  521. 

6 Ante.  «5  519. 

565 


§   524  ATTORNEYS  AND  COUNSELLORS.  [Code  Fed. 

United  States  are  concerned,  and,  unless  otherwise  instructed  by 
the  Secretary  of  the  Treasury,  to  appear  in  behalf  of  the  defendants 
in  all  suits  or  proceedings  pending  in  hi.s  district  against  collectors, 
or  other  officers  of  the  revenue,  for  any  act  done  by  them  or  for  the 
recovery  of  any  money  exacted  by  or  paid  to  such  officers,  and  by 
them  paid  into  the  Treasury. 

R.  S.  §  771,  U.  S.  Comp.  Stat.  1901,  p.  601. 

The  authoritj^  of  the  district  attorney  is  derived  from  the  acts  of  Con- 
gress9  and  is  limited  to  his  particular  district,io  hence  when  a  case  is  trans- 
ferred to  the  appellate  court  it  passes  beyond  his  control  and  if  he  ap- 
pears in  that  court  he  acts  only  as  special  counsel,  and  not  as  district  at- 
torneyii  within  his  district.  He  is  the  only  prosecutor  recognized  by  la\vi2 
and  the  courts  will  not  recognize  any  suit,  civil  or  criminal,  by  or  on  be- 
half of  the  United  States  as  regularly  before  them  unless  prosecuted  by  the 
district  attorney  or  some  one  properly  authorized  by  him. is  The  duty  to 
■prosecute  all  civil  actions"  covers  all  cases  in  which  the  interests  of  the 
'■overnment  are  at  stake,  whether  the  subject  of  attack  or  defense.i'*  Thus 
iit  includes  defense  of  habeas  corpus  to  release  Chinese  from  vessel; is 
ijroceedings  to  condemn  land  for  the  benefit  of  the  United  States;  16  pro- 
«eedings  under  statutory  provisions  to  recover  damages  against  the  United 
States  for  injuries  done  by  flowage.i'?  It  is  the  duty  of  the  district  at- 
torney also,  under  this  section,  to  conduct  proceedings  to  recover  a  pen- 
sion fraudulently  received. is  In  a  criminal  case,  after  indictment  and 
))efore  trial,  he  has  power  to  enter  a  nolle  prosequi. is  But  he  has  no  con- 
trol over  the  course  to  be  pursued  while  the  charge  is  being  examined  by 
commissioner  or  grand  jury. 20  But  the  fact  that  he  was  bitter  in  his 
prosecution  and  influenced  the  grand  jury  is  no  objection  to  an  indictment.  1 
V  district  attorney  is  not  authorized  to  take  a  commissioner's  warrant 
from  the  marshal's  hands  to  determine  whether  it  shall  be  executed.2  He 
has  the  power  to  employ  a  stenographer  to  take  testimony  in  a  criminal 
ease,  without  first  applying  to  the  Attorney  General. 3 

9LeAy  Ct.  V.  Ringgold.  .5  Pet.  453,  S.  84.1.  41  L.  ed.  184.  10  Sup.  Ut.  Rep. 

8  L.  ed.  189.  1018. 

lOUnited     States     v.    Winston.    73  isUnited  States  v.  Johnson.  173  U. 

Fed.  149,  19  C.  C.  A.  419.  S.    363.    43    L.   ed.    731,    19    Sup.    Ct. 

iiUnited  States  v.  Winston.  170  I>.  Rep.  427. 

S.   .522.   42   L.   ed.    11.30,    18   Sup.   Ct.  I'Colman     v.     United     States.    66 

Rep.    701  :    United   States   v.    Garter,  Fed.  699,  14  C.  C.  A.  6.5. 

170  U.  S.  .529.  42  L.  ed.  1133.  18  Sup.  isRuhm  v.  United  States,  66  Fed. 

Ct.  Re.p.  703.  531. 

i2United   States   v.    Stone.   8    Fed.  isUnited    States    v.    Schumann.    2 

261;    United     States    v.     Doughty,   7  A'bb.  .523.  Fed.  Cas.  No.  16.235. 

Blatehf.  424.  Fed.  Cas.  No.  14,986.  20ldem. 

isSee   Confiscation   Cases,   7    Wall.  lUnited     States     v.    Mitcliell.    1.36 

454,  19  L.  ed.  198.  Fed.  906. 

^United    States  v.  Smith.   158  U.  ^United     States     v.     Scroggiiis.    3 

S.   354,   39   L.  ed.    1011,    15   Sup.    Ct.  \Vo<:>ds.  529,  Fed.  Cas.  Xo.  16.244. 

Rep.  846.  sFish  v.  United  States.  36  Fed.  677. 

isHilborn  v.  United  States.  163  U. 

5fiG 


Procedure!  VARIOUS   DUTIES.  §   526 

§  525.     Duty  to  defend  officers  of  Congress. 

In  any  action  now  pending,  or  which  may  be  brought  against  any 
person  for  or  on  account  of  anything  done  by  him  while  an  officer 
of  either  House  of  Congress  in  the  discharge  of  his  official  duty, 
in  executing  any  order  of  such  House,  the  district  attorney  for  the 
district  within  which  the  action  is  brought,  on  being  thereto  re- 
quested by  the  officer  sued,  shall  enter  an  appearance  in  behalf  of 
such  officer;  and  all  provisions  of  the  eighth  section  of  the  act  of 
July  28,  1866,  entitled  "An  act  to  protect  the  revenue,  and  for  other 
purposes,"  and  also  all  provisions  of  the  sections  of  former  acts 
therein  referred  to,  so  far  as  the  same  relate  to  the  removal  of  suits, 
the  withholding  of  executions,  and  the  paying  of  judgments  against 
revenue  or  other  officers  of  the  United  States,  shall  become  appli- 
cable to  such  action  and  to  all  proceedings  and  matters  whatsoever 
connected  therewith,  and  the  defense  of  such  action  shall  thence- 
forth be  conducted  under  the  supervision  and  direction  of  the  At- 
torney General. 

§  8  of  act  Mar.  3,  1875,  c,  130,  18  Stat.  401,  U.  S.  Comp.  Stat.  1901,  p. 
602. 

This  provision  is  taken  from  the  sundry  civil  appropriation  act  for  the 
year  ending  June  30,  1876.  The  section  of  an  act  of  1866  referred  to  above 
is  not  re-enacted  in  the  Revised  Statutes,  but  the  "provisions  of  the  sec- 
tions of  former  acts"  which  it  refers  to  will  be  found  elsewliere.  They  in- 
clude provisions  for  the  removal  of  suits  against  revenue  officers, 5  and  for 
the  witholding  of  executions  against  such  officers  and  for  the  payment  of 
judgments  so  recovered  against  them. 6 

§  526.  —  duties  to  furnish  information  as  to  titles  to  public  prop- 
erty. 
The  district  attorneys  of  the  United  States,  upon  the  application 
■of  the  Attorney  General,  shall  furnish  any  assistance  or  information 
in  their  power  in  relation  to  the  titles  of  the  public  property  lying 
within  their  respective  districts. 

Part  of  R.  S.  §  355,  U.  S.  Comp.  Stat.  1901,  p.  206. 

This  section  was  enacted  in  1841.8  The  omitted  portion  provides  that  the 
opinion  of  the  Attorney  General  shall  be  given  as  to  the  validity  of  title 
to  land  upon  which  public  buildinjrs  are  to  be  erected  and  for  the  procuring 
■of  additional  evidence  as  to  such  title. 


sPost,  §  114.5.  8Res.  Sept.  11,  1841.  No.  6,  5  Stat. 

6  Post.  §   1863.  468. 

567 


S   5:J7  ATTOKNKYS   AM)  COl'.NSKLI.ORS.  [Coi\e   Fed. 

§  527.  —  to  render  legal  services  in  purchases  for  government. 

Hereafter  all  legal  services  connected  with  the  procurement  of 
titles  to  site  for  public  buildings,  other  than  for  life-saving  stations 
and  pier-head  head  lights,  shall  be  rendered  by  United  States  dis- 
trict attorneys:  Provided,  further,  That  hereafter,  in  the  procure- 
ment of  sites  for  such  public  buildings,  it  shall  be  the  duty  of  the 
Attorney  General  to  require  of  the  grantors  in  each  case  to  fui'nish, 
free  of  all  expenses  to  the  government,  all  requisite  abstracts,  of- 
ficial certilications,  and  evidences  of  title  that  the  Attoi-ney  GeneT'al 
nuiy  deem  necessary. 

Act  Mar.  2,  1889,  c.  411,  §   1,  25  Stat.  !)41,  U.  8.  Coinp.  Stat.  IHOl,  p. 
2.518. 

§  528.  —  to  conduct  government  suits  respecting  national  banks. 

All  suits  and  proceedings  arising  out  of  the  ]n-o\isions  of  law 
governing  national  banking  associations,  in  which  the  United  States 
or  any  of  its  otttcers  or  agents  shall  be  parties,  shall  be  conducted 
by  the  district  attorne3^s  of  the  several  districts  under  the  direction 
and  supervision  of  the  Solicitor  of  the  Treasury. 
R.  S.  §  .'580,  U.  S.  Comp.  Stat.  lilOl,  p.  213. 

The  effect  of  this  provision  is  to  impose  upon  the  district  attorneys  the 
duty  of  conducting  suits  arising  out  of  the  national  banking  association 
laws,  the  Ignited  States  or  its  agents  being  parties.  It  is  immaterial 
whether  the  suit  is  brought  in  the  name  of  the  United  States,  or  in  that  of 
the  Comptroller,  or  in  the  name  of  a  received, lo  the  latter  being  an  •'officer 
or  agent"  within  the  meaning  of  the  section, n  or  whether  it  is  commenced 
before  or  after  the  appointment  of  tlie  receiver.!  2  The  provision  in  no  way 
affects  tlie  jurisdiction  of  any  court.is 

§  529.     Duty  as  to  suits  for  money  due  Post  Office  Department. 

In  the  prosecution  of  any  suit  for  money  due  the  Post-Otiice  De- 
partment, the  United  States  attorney  conducting  the  same  shall 
obey  the  dii-ections  which  may  be  given  him  by  the  Department  of 
Justice. 

R.  S.  §  381,  U.  S.  Comp.  Stat.  1901,  p.  213. 
This  section  was  carried  into  the  Revised  Statutes  from  an  act  of  1872.1 » 

loVan      Antwerp    v.     Hulburd,    7  i2Bethel      Bani<      v.      Pahquioque 

Blatchf.  426,  Fed.  Cas.  No.   16.826.  Bank,  14  Wall.  400,  20  L.  cd.  840. 

iKJibson  v.  Peters,  150  U.   S.  344,  ..isVan      Antwerp      v.     Hulburd,    7 

37  L.  ed.  1104.  14  Sup.  Ct.  Rep.  134.  Blatchf.  426,  Fed.  Cas.  No.  16,826. 

See  also  Short  v.  llempburn  75  Fed.  is  Act  June  8,  1872,  c.  335,  §  309,  17 

113.    21    C.    C.    A.    2.52:     Speckart    v.  Stat.  324. 
Bank,  85  Fed.   18;    Brown   v.  Smith. 
88  Fed.  565. 

568 


■ 


ProcPdure]  VARIOUS    DUTIES.  •  S   5--5- 

§  530.     Duty  to  represent  government  in  prize  cases. 

The  district  attorneys  of  the  several  judicial  districts  shall  re]i- 
resent  the  interests  of  the  United  States  in  all  prize-causes,  and  shall 
not  act  as  separate  counsel  for  the  captors  on  any  private  retainei- 
or  compensation  from  them,  unless  in  a  question  between  the  claim- 
ants and  the  captors,  on  a  demand  for  damages.  They  shall  ex- 
amine all  fees,  costs  and  expenses,  sought  to  be  charged  on  any 
prize-fund,  and  protect  the  interests  of  the  captors  and  of  the  United 
States.  The  district  attorneys  of  all  districts  in  which  any  prize- 
causes  are  or  may  be  pending  shall,  as  often  as  once  in  three  months, 
send  to  the  Secretary  of  the  Navy  a  statement  of  the  condition  of 
all  prize-causes  pending  in  their  districts,  in  such  form  and  em- 
bracing such  particulars  as  the  Secretary  of  the  Navy  shall  require. 
R.  S.  §  4619.  U.  S.  Comp.  Stat.  1901.  p.  3128. 

The  proceedings  in  prize  eases  are  provided  by  other  sections. 16  In 
prosecuting  prize  eases  tlie  district  attorney  acts  as  law  officer  of  the 
government  and  not  in  any  other  capacity. 17 

§  531.     Duty  as  to  restoration  of  records  and  compensation  there- 
for. 

Judges  [of  United  States  courts]  may  direct  tlie  performance 
.  .  .  by  the  United  States  attorneys,  ...  of  any  duty  in- 
cident thereto  [i.  e.  incident  to  the  restoration  of  records  lost  or 
destroyed,  in  which  the  United  States  are  interested]  ;  and  said 
.  .  .  attorneys  shall  be  allowed  such  compensation  for  services 
in  the  matter  and  for  lawful  disbursements  as  may  be  approved  by 
the  Attorney  General  of  the  United  States,  upon  a  certificate  by  the 
judges  of  said  courts  stating  that  such  claim  for  services  and  dis- 
bursements is  just  and  reasonable:  and  the  sum  so  allowed  shall  l)e 
paid  out  of  the  judiciary  fund. 

Part  of  R.  S.  §  904,  as  amended  .Tan.  .'5],   1879.  c.  39.  20  Stat.  2^77. 

Tliis  provision  applies  also  to  Ignited  States  clerks. is  Except  in  the 
District  of  Columbia  fees  are  now  no  longer  allowed  district  attorneys  in 
addition  to  their  salary. is 

§  532.     Duty  to  represent  Indians. 

In  all  States  and  Territories  where  there  are  reservations  or  al- 

16R.  R.  §  4(118.  isPost.  S  .J97. 

17'Ihe  Anna.  Blatchf.  Pr.  Cas.  337.         isAnte.    §    509    [d] 
Fed.  Cas.  No.  402. 

509 


«  533  ATTORNEYS  AND  COUNSKLLORS.  [Code   Fed. 

lotted  Indians  the  United  States  district  attorney  shall  represent 
(hem  in  all  suits  at  law  and  in  equity. 
Act  Mar.  2,  1893,  o.  209,  27  Stat.  631. 

By  the  Indian  Depredation  Claims  Act,i  it  is  made  the  duty  of  the  At- 
torney General  to  appear  and  defend  the  interests  of  the  Indians  and  the 
■government  in  suits  arising  thereunder. 

§  533.  —  to  institute  government  condemnation  proceedings. 

It  shall  be  the  duty  of  the  Attorney  (leneral  of  the  United  States, 
upon  every  application  of  the  Secretary  of  the  Treasury,  under  this 
act  [an  act  authorizing  condemnation  of  land  for  sites  for  public 
buildings,  etc.,  by  the  Secretary  of  the  Treasury,  or  other  govern- 
ment officer],  or  such  other  officer,  to  cause  proceedings  to  be  com- 
menced for  condemnation,  within  thirty  days  from  the  rec;eipt  of  the 
application  at  the  Department  of  Justice. 

Part  of  §   1,  act  Aug.  1,  1888,  c.  728,  26  Stat.  357,  U.  S.  Comp.  Stat. 
1901,  p.  2516. 

§  534.  —  to  abate  unlawful  enclosure  of  public  lands. 

It  shall  be  the  duty  of  the  district  attorney  of  the  United  States 
for  the  proper  district,  on  affidavit  filed  with  him  by  any  citizen 
of  the  United  States  that  section  one  of  this  act  is  being  violated 
[i.  e.  by  the  enclosure  or  the  assertion  of  right  to  public  land  without 
title]  showing  a  description  of  the  land  inclosed  with  reasonable 
certainty,  not  necessarily  by  metes  and  bounds  nor  by  governmental 
subdivisions  of  surveyed  laJids,  but  only  so  that  the  inclosure  may 
be  identified,  and  the  persons  guilty  of  the  violation  as  nearly  as 
may  be,  and  by  description,  if  the  name  cannot  on  reasonable  in- 
quiry be  ascertained,  to  institute  a  civil  suit  in  the  proper  United 
States  district  or  circuit  court,  or  Territorial  district  court,  in  the 
name  of  the  United  States,  and  against  the  paries  named  or  de- 
scribed who  shall  be  in  charge  of  or  controlling  the  inclosure  com- 
plained of  as  defendants. 

Part  of  §  2,  act  Feb.  25,  1885,  c.  149,  23  Stat.  321,  U.  S.  Comp.  Stat.  1901, 
p.  1525. 

The  remainder  of  the  section  confers  jurisdiction  on  the  circuit  and  dis- 
trict courts  and  authorizes  an  order  for  the  destruction  of  such  enclosure.s 

lAot  Mi"r<'h  3.  1891,  c.  568.  §  4,  26 
Stat.  852,  853. 
3 Ante.  §   154. 

570 


ri.nPdiae]  VARIOUS    DUTIES.  §   53T 

If  tlip  inclosure  is  of  less  than  one  hundred  and  sixty  acres  the  Secretary 
of  the  Interior  must  first  authorize  suit.* 

^  535,  —  to  restrain  combinations  in  restraint  of  import  trade. 

it  .-hall  be  the  duty  of  the  several  district  attorneys  of  the  United 
States,  in  their  respective  districts,  under  the  direction  of  the  At- 
torney General,  to  institute  proceedings  in  equity  to  prevent  and 
restrain  .  .  .  violations  [of  section  73  of  the  act  of  August 
27,  1894,  declaring  combinations  and  conspiracies  in  restraint  of 
import  trade  unlawful.] 

Part  of  §  74  of  act  of  Aug.  27,  1894,  c.  349,  28  Stat.  570,  U.  S.  Comp. 
Stat.  1901,  p.  3203. 

The  omitted  part  of  the  section  invests  the  circuit  court  with  jurisdic- 
tion^'  and  prescribes  the  procedure. 6 

§  536.  — to  prevent  violations  of  anti-trust  act  of  1890. 

It  shall  be  the  duty  of  the  several  district  attorneys  of  the  United 
States,  in  their  respective  districts,  under  the  direction  of  the  At- 
torney Genei'al,  to  institute  proceedings  in  equity  to  prevent  and 
restrain     .     .     ,     violations  [of  the  anti-trust  act  of  1890.] 

Part  of  §  4,  act  July  2,  1890.  c.  647,  26  Stat.  209,  U.  S.  Comp.  Stat. 
1901,  p.  3201. 

The  section  also  invests  the  circuit  court  with  jurisdiction"  and  pre 
scribes  the  procedure.* 

§  537.  —  to  prosecute  violations  of  commerce  commission's  orders. 

It  shall  be  the  duty  of  the  various  district  attorneys,  under  the 
direction  of  the  attorney  general  of  the  United  States,  to  prose- 
cute for  the  recovery  of  forfeitures  [  provided  by  the  Interstate 
Commerce  law  as  amended]  .^'^ 

Part  of  §   16,  act  Feb.  4,  1887,  c.  104,  24  Stat.  384,  as  amended  June 
29,  lOOO.  §  5,  c,  3591,  34  Stat.  591. 

♦See  §  7.  of  above  act,  U.  S.  Comp.  "Ante,  §   142. 

Stat.   1901.  p.   1528.  8 Post,  §  1345. 

6 Ante.  §  144.  lopost,   §    1349. 
«Post,  §  13-15. 

671 


S   .".-^.S  A'J'rOKNKYS  AMI  <  ( irNS!:i,I,(>i:S.  [Code   Fed. 

§  538.  —  to  prosecute  violations  of  act  prohibiting  transporta- 
tion of  diseased  cattle. 

It  sliall  1)0  tlio  duty  of  tlic  several  Tliiiteil  States  district  attorneys 
to  proswHite  all  violations  of  this  act  which  shall  l)0  brought  ta 
tlioir  notice  or  knowledge  by  any  person  making  the  coni])laint  un- 
der oath  :  and  the  same  shall  he  lieard  before  any  district  or  cir- 
cuit coui-t  of  the  Unitetl  States  or  Territorial  court  holden  within 
the  district  in  which  the  violation  of  this  act  has  been  counnitted. 
§  9,  act  May  29,  1884,  c.  60,  23  Stat.  33,  U.  S.  Comp.  Stat.  1901,  p. 
3185. 

§  539.  —  to  prosecute  suits  in  equity  against  carriers  violating 
published  rates. 

It  shall  be  the  duty  of  the  several  district  attorneys  of  the  Ignited 
States,  whenever  the  Attorney  General  shall  direct,  either  of  his 
own  motion  or  npon  the  request  of  the  Intei'state  Commerce  Com- 
mission, to  institute  and  prosecute  such  proceedings  [i.  e.  proceed- 
ings in  equity  against  carriers  violating  their  published  rat(\s|.''- 
Part  of  §  3,  act  Feb.  14,  1903,  c.  708,  32  Stat.  848,  U.  S.  Comp.  Stat. 
190.5.  p.  601. 

The  other  ])ortions  of  §  3  are  eoiitained  in  another  chapter.is 

§  540.  Duty  to  proceed  against  marshal  failing  to  pay  over 
fines. 
In  ease  of  failure  [i.e.  of  the  marshal  to  pay  all  fines  collected  by 
hiTii  or  his  deputy  under  E.  S,  §  1659,  respecting  the  militia,  into 
the  Treasury  within  two  months  after  he  has  received  the  same] 
it  shall  be  the  duty  of  the  Comptroller  of  the  Treasury  to  gi\e  no- 
tice to  the  district  attorney  of  the  United  States,  who  shall  proceed 
against  the  marshal  in  the  district  court,  by  attacliment,  for  the  re- 
covery of  the  same. 

Part  of  R.  S.  §  1600,  U.  S.  Comp.  Stat.  190L  p.  1130. 

§  541.  — to  prosecute  offenders  against  alien  immigration  laws. 

It  shall  be  the  duty  of  the  district  attorney  of  the  proper  district 
to  prosecute  every  such  suit  [i.  e.  suits  for  penalties  for  violation 
of  the  alien  immigrant  law  of  1903]  wlien  brought  by  the  United 
States. 

12-See  post,  §  1359. 

13 Post,    §§   13.59.   et    seq. 

572 


I 


J^ocedure]  VARIOUS    DUTIES.  I  544 

Pail  of  §  5,  act  Mar.  :5.  190:5,  c.  1012,  32  Stat.  1214,  U.  S.  Comp.  Stat. 
1905.  p.  277. 

The  omitted  portion  of  the  above  provision  prescribes  the  penalty  for 
the  violation  of  the  above  mentioned  immigrant  law.  The  whole  provision 
supersedes  a  similar  enactment  of  1885.15 

§  542.  —  to  prosecute  owner  of  obstructing  bridge,  refusing  to 
alter  same. 
If  at  the  end  of  such  time  [as  the  Secretary  of  War  has  given 
to  the  owner  of  a  bridge  obvStructing  navigation,  to  alter  same]  the 
■alteration  has  not  been  made,  the  Secretary  of  War  shall  forthwith 
notify  the  United  States  district  attorney  for  the  di.strict  in  whicli 
sucli  bridge  is  situated,  to  the  end  that  the  criminal  proceedings  [to 
puni.^li  such  failure  to  alter,  as  a  misdemeanor]  hereinafter  men- 
lioncfl  may  be  taken. 

Part  of  §  18,  act  Mar.  3,  1899,  c.  425,  30  Stat.  1153,  V.  S.  Comp.  Stat. 
1901,  p.  .3545. 

§  543.  —  to  prosecute  persons  presenting  false  claims. 

It  shall  be  the  duty  of  the  several  district  attorneys  of  the  United 
States  for  the  respective  districts,  for  the  District  of  Columbia,  and 
for  the  several  Territories,  to  be  diligent  in  inquiring  into  anv  vio- 
lation of  the  provisions  of  section  thirty-four  hundred  and  ninety 
[of  the  Revised  Statutes  punishing  the  making  of  false  claims 
against  the  United  States]  Ijy  persons  liable  to  such  suit,  and  found 
within  their  respective  districts  or  Territories,  and  to  cause  them 
to  be  proceeded  against  in  due  form  of  law  for  the  recovery  of  such 
forfeiture  and  damages.  And  such  person  may  be  arrested  and 
lield  to  bail  in  such  sum  as  tlie  district  judge  may  order,  not  ex- 
ceeding the  sum  of  two  thousand  dollars,  and  twice  the  amount  of 
the  damages  sworn  to  in  the  athdavit  of  the  person  bringing  the  suit. 
R.  S.  §  3492,  U.  S.  t'oiiip.  Siat.  l!>01.  p.  2329. 

This  provision  was  enacted  in  18i)3.iT 

§  544.  —  to   prosecute   revenue   frauds. 

It  sliall  be  the  duty  of  every  district  attorney  to  whom  any  col- 
lectoi'  of  customs,  or  of  internal  revenue,  shall  report,  according  to 
law.  any  case  in  which  any  line,  penalty  or  forfeiture  has  been  in- 
curred in  the  district  of  such  attorney  for  the  violati.in  of  any  hnv 

iSAct  Feb.  20.  18S5.  c.  ItU.  §  3.  i  "Act  March  2.  18(i3,  c.  07.  12  Sta<. 
U.  S.   Comp.  Stat.   1901,  p.   1291.  <iOS. 

573 


§   545  ATTORN  FAS  AND  CorNSKLl.OKS.  [Code  Fed. 

of  the  United  States  relating  to  the  revenue,  to  cause  the  proper 
proceedings  to  be  commenced  and  prosecuted  witliout  delaj',  for  tlie 
fines,  penalties  and  forfeitures  in  such  cases  provided,  unless,  upon 
inquiry  and  examination,  he  shall  decide  that  such  proceedings  can- 
not probably  be  sustatined,  or  that  the  ends  of  public  Justice  do  noi 
require  that  such  proceedings  should  be  instituted;  in  which  case 
he  shall  report  the  facts  in  customs  cases  to  the  Secretary  of  the 
Treasury,  and  in  internal  revenue  cases  to  the  commissioner  of  in- 
ternal revenue,  for  their  direction.  And  for  the  expenses  incurred 
and  services  rendered  in  all  such  cases,  the  district  attorney  shall 
leceive  and  be  paid  from  the  Treasury  such  sum  as  the  Secretary  of 
the  Treasury  shall  deem  just  and  reasonable,  upon  the  certificate  of 
the  judge  before  whom  such  cases  are  tried  or  disposed  of: 
])rovided,  that  the  annual  compensation  of  such  district  attorney 
shall  not  exceed  the  maximum  amount  prescribed  by  law,  by  reason 
of  such  allowance  and  payment. 

R.  S.  §  S38,  as  amended  Feb.  27,  1877,  c.  69,  19  Stat.  241,  U.  S.  Ckjmp. 
Stat.  1901,  p.  644. 

The  amendment  consisted  in  inserting  the  word  '"the"  after  the  words 
"it  shall  be"  in  the  first  line.  Since  everywhere  except  in  the  District  of 
Columbia,  the  district  attorneys  receive  salary  in  place  of  feesis  which 
are  now  no  longer  allowed,! »  the  above  provision  as  to  compensation  may 
be  regarded  as  superseded. 

§  545.     Duty  to  make  return  to  Treasury  of  suits. 

Every  district  attorney  shall,  immediately  after  the  end  of  every 
term  of  the  circuit  and  district  court  for  his  district,  forward  to  the 
Solicitor  of  the  Treasury,  except  in  the  cases  provided  in  the  next 
section^  a  full  and  particular  statement  accompanied  by  the  cer- 
tificate of  the  clerks  of  said  courts,  respectively,  of  all  causes  penil- 
ing  in  said  courts,  and  of  all  causes  decided  therein  during  such 
term,  in  wliich  the  United  States  are  party.  He  shall  also,  on  t\\o 
first  day  of  October  in  each  year,  make  a  return  to  said  solicitor  of 
the  number  of  suits  and  proceedings  commenced,  pending  and  de- 
termined within  his  district  during  the  fiscal  year  next  preceding 
the  date  of  such  return,  showing  the  date  when  such  proceeding 
or  suit  in  each  case  was  commenced.  If  the  determination  thereof 
has  been  delayed  or  continued  beyond  the  usual  or  reasonable  period, 
the  reasons  must  be  set  forth,  and  a  statement  must  be  made  of 

If' Ante.  §  .509.  iPost,  §  547. 

isAnte.  §  .309.  [d] 

574 


I 


Procedure]  VARIOUS   DUTIES.  §  548 

the  measures  taken  by  the  district  attorney  to  press  such  proceed- 
ings or  suits  to  a  close. 

R.  S.  §  773,  U.  S.  Comp.  Stat.  1901,  p.  603. 

§  546.     Duty   to   transmit   to   Treasury,   statement   of   suits  for 
fines,  etc. 
Every  district  attorney  shall,  on  instituting  any  suit  for  the  re- 
covery of  any  fine,  penalty,  or  forfeiture,  immediately  transmit  to 
the  Solicitor  of  the  Treasury  a  statement  thereof. 
R  S.  §  772,  U.  S.  Comp.  Stat.  1901,  p.  603. 
This  section  was  enacted  in  1830.? 

§  547.  —  to  make  return  of  revenue  suits  to  commissioner. 

When  any  suit  or  proceeding  arising  under  the  internal  revenue 
laws,  to  which  the  United  States  are  party,  or  any  suit  or  pro- 
ceeding against  a  collector  or  other  oflEicer  of  the  internal  revenue, 
wherein  a  district  attorney  appears,  is  commenced,  the  attorney  for 
the  district  in  which  it  is  brought  shall  immediately  report  to  the 
commissioner  of  internal  revenue  the  full  particulars  relating  to 
the  same;  and  he  shall,  immediately  after  the  end  of  each  term  of 
the  court  in  which  such  suit  or  proceeding  is  pending,  forward 
to  the  said  commissioner  a  full  and  particular  st-atement  of  its  con- 
dition. 

R.  S.  §  774,  U.  S.  Comp.  Stat.  1901,  p.  603. 

Taken  from  an  act  of  1867.* 

§  548.  —  to  report  on  postoifice  suits. 

Each  district  attorney  shall,  immediately  after  the  end  of  every 
term  in  which  any  suit  for  moneys  due  on  account  of  the  Postoffice 
Department  has  been  pending  in  his  district,  forward  to  the  Depart- 
ment of  Justice  a  statement  of  any  judgment  or  order  made,  or  step 
taken  in  the  same,  during  such  term,  accompanied  by  a  certificate 
of  the  clerk,  showing  the  parties  to  and  amount  of  every  such  Judg- 
ment, with  such  other  information  a.s  the  Department  of  Justice 
may  require;  and  tlie  said  attorney  shall  direct  speedy  and  effectual 
execution  upon  said  judgment,  and  the  United  States  marshal  to 

3Act  May  29,  1830,  c.  153,  §  4,  4  ■i.\ct  March  2.  1S67,  c.  109.  §  3,. 
Stat.  415.  14  Stat.  471,  472. 

575 


§   549  ATTORNEYS   AND   COUNSELLORS.  [Code   Fed. 

whom  the  same  is  directed  shall  make  returns  of  the  pfoeeedinus  to 
the  Department  of  Justice,  at  such  times  as  it  may  tlircct. 
R.  S.  §  775,  U.  S.  Comp.  Stat.  1901,  p.  G04. 

§  549.  Liability  of  district  attorney  on  receiving  a  bond  for 
suit. 

Whenever  the  Solicitor  of  the  Treasury  receives  information  from 
a  collector  of  duties  that  such  collector  has  delivered  any  bond  for 
duties  to  a  district  attorney  for  suit,  the  Solicitor  of  the  Treasury 
shall  make  such  entry  thereof  as  that  the  attorney  may  duly  appear 
chargeable  therewith,  until  the  amount  has  been  paid  to  the  United 
States,  or  he  has  obtained  judgment  thereon  and  delivered  execu- 
tion to  the  marshal,  or  otherwise  been  duly  discharged  therefrom. 
R.  S.  §  373,  U.  S.  Comp.  Stat.  1901,  p.  211. 

This  section  is  taken  from  an  act  of  18.30.6 

§  550.     Rules  respecting  suits  where  United  States  are  parties. 

The  Solicitor  of  the  Treasury  shall  establisli  such  regulations,  not 
inconsistent  with  law  .  .  .  with  the  approbation  of  the  At- 
torney General,  for  the  observance  of  district  attorneys  .  .  . 
respecting  suits  in  Avhich  the  United  States  are  parties,  as  may  be 
deemed  necessary  for  the  just  responsibility  of  those  officers,  and 
the  prompt  collection  of  all  revenues  and  debts  due  and  accruing  to 
the  United  States. 

Part  of  R.  S.  S  377.  U.  S.  Comp.  Stat.  1901,  p.  212. 

By  R.  S.  §  3215,"  the  commissioner  of  internal  revenue  is  jjiven  a  similar 
power  to  establish  rules  in  suits  under  the  internal  revenue  laws  to  which 
the  United  States  are  parties. 

§  551.  Attorney  General  to  supervise  district  attorneys  and  mar- 
shals. 

The  Attorney  General  shall  exercise  general  superintendence  and 
direction  over  the  attorneys  and  marshals  of  all  the  districts  in  the 
United  States  and  the  Territories  as  to  the  manner  of  discharging 
their  respective  duties;  and  the  several  district  attorneys  and  mar- 
shals are  required  to  report  to  the  Attorney  General  an  account  of 
their  official  proceedings,  and  of  the  state  and  condition  of  their 

sAet  May  29,  1830,  153,  §  3,  4  Stat.  ^u.  S.  Comp.  Stat.  1901,  p.  2084. 
414. 

576 


m 


riocediue]  APPOINTMENT  OF  ASSISTANT  AND  SPECIAL  COUNSHL.  §   555 

respective  offices,  in  sucii  time  and  manner  as  the  Attorney  General 
may  direct. 

R.  S.  §  362,  U.  S.  Comp.  Stat.  1901,  p.  208. 

§  552.  —  to  retain  counsel  to  assist  district  attorneys. 

The  Attorney  General  shall,  whenever  in  his  opinion  the  public 
interest  requires  it,  employ  and  retain,  in  the  name  of  the  United 
States,  such  attorneys  and  counselors  at  law  as  he  may  think  nec- 
essary to  assist  the  district  attorneys  in  the  discharge  of  their  duties, 
and  shall  stipulate  with  such  assistant  attorneys  and  counsel  the 
amount  of  compensation,  and  shall  have  supervision  of  their  coii- 
■diict  and  proceedings. 

R.  S.  §  30.3,  U.  S.  Comp.  Stat.  1901,  p.  20S. 

§  553.  — to  provide  other  departments  with  counsel. 

Wlienever  the  head  of  a  department  or  bureau  gives  the  Attorney 
<jreneral  due  notice  that  the  interests  of  the  United  States  require  the 
service  of  counsel  upon  the  examination  of  witnesses  touching  any 
claim,  or  upon  the  legal  investigation  of  any  claim,  pending  in  such 
department  or  Inireau,  the  Atforney  General  shall  provide  for  such 
service. 

R.  S.  §  3«4,  U.  S.  Comp.  Stat.  1901,  p.  208. 

§  554.     Restrictions  on  payment  of  special  counsel  fees. 

No  compensation  sliall  hereafter  be  allowed  to  any  person,  besides 
the  respective  district  attorneys  and  assistant  district  attorneys  for 
services  as  an  attorney  or  counselor  to  the  United  States,  or  to  any 
branch  or  department  of  the  government  thereof,  except  in  ca.ses 
specially  authorized  by  law,  and  then  only  on  the  certificate  of  the 
Attorney  General  that  such  services  were  actually  rendered,  and 
tliat  the  same  could  not  be  performed  by  the  Attorne}'  General,  or 
Solicitor  General,  or  the  officers  of  the  Department  of  Justice,  or  by 
the  district  attorneys. 

R.  S.  §  366,  U.  S.  Comp.  Stat.  1901,  p.  209. 

§  555.     Appointment  and  oath  of  special  counsel. 

Every  attorney  or  counselor  who  is  specially  retained,  under  the 
authority  of  the  Department  of  Justice,  to  assist  in  the  trial  of  any 

Fed.  Proc— 37.  577 


{   550  ATTOUNEYS    AND    COUNSELLORS.  [Code  Fed. 

case  in  which  the  government  is  interested,  shall  receive  a  com- 
mission from  the  head  of  such  department,  as  a  special  assistant 
to  the  Attorney  General,  or  to  some  one  of  the  district  attorneys,  as 
the  nature  of  the  appointment  may  require ;  and  shall  take  the  oath 
required  by  law  to  be  taken  by  the  district  attorneys,  and  shall  be 
subject  to  all  the  liabilities  imposed  upon  them  by  law. 

Act  June  22,  1870,  e.  150,  §  17,  16  Stat.  1G4,  R.  S.  §  366,  U.  S.  Comp. 
Stat.  1901,  p.  209. 
Foreign  counsel  employed  by  the  Attorney  General  are  not  required  to 
take  the  oath  of  office  above  provided.! 

§  556.  Solicitor  General  or  other  officers  may  be  sent  to  any 
di-strict. 
The  Solicitor  General,  or  any  officer  of  the  Department  of  Jus- 
tice, may  be  sent  by  the  Attorney  General  to  any  State  or  district 
in  the  United  States  to  attend  to  the  interests  of  the  United  States 
in  any  suit  pending  in  any  of  the  courts  of  the  United  States,  or 
in  the  courts  of  any  State,  or  to  attend  to  any  other  interest  of  the 
United  States. 

R.  S.  §  367,  U.  S.  Comp.  Stat.  1901,  p.  209. 

§  557.     Attorney  General  to  supervise  accounts. 

The  Attorney  General  shall  exercise  general  supervisory  powers 
over  the  accounts  of  district  attorneys,  marshals,  clerks  and  other 
officers  of  the  courts  of  the  United  States. 
R.  S.  §  368,  U.  S.  Comp.  Stat.  1901,  p.  210. 

§  557y2.  Special  counsel  may  be  authorized  to  conduct  proceed- 
ings in  any  district. 
The  Attorney  General  or  any  officer  of  the  Department  of  Justice, 
or  any  attorney  or  counselor  specially  appointed  by  the  Attorney 
General  under  any  provision  of  law,  may,  when  thereunto  specific- 
ally directed  by  the  Attorney  General,  conduct  any  kind  of  legal 
proceeding,  civil  or  criminal,  including  grand  jury  proceedings  and 
proceedings  before  committing  magistrates,  which  district  attorneys 
now  are  or  hereafter  may  be  by  law  authorized  to  conduct,  whether 
or  not  he  or  they  be  residents  of  the  district  in  which  such  proceed- 
ing is  brought. 

Act  June  30,  1906,  c.  3935,  34  Stat.  816. 

lAct  June  30,  1906.  c.  3914,  34 
Stat.  754.  See  also  eiirlier  appropria- 
tion acts  with  same  provision. 

578 


CHAPTER  16. 

CLERKS  OF  UNITED  STATES  COURTS. 

§  558.     Cross  references  and  matters  not  included. 

§  559.     Appointment  of  Supreme  Court  clerk. 

§  560.     Appointment    of    Supreme    Court    deputy    clerks. 

§  561.     Residence,  disabilities  and  duties  of  Supreme  Court  clerk. 

§  562.     Court  of  Claims  clerk  and  deputies. 

§  563.  Appointment,  duties  and  salary  of  clerks  of  circuit  court  of  ap- 
peals. 

§  564.     Appointment  of  circuit  court  clerks. 

§  565.     Appointment  and  removal  of  circuit  court  clerks  in  ninth  circuit. 

§  566.     Deputy   circuit   clerks — clerks   death — liability   for    defaults. 

§  567.     Appointment  of  district  court  clerks. 

§  568.     Deputy  district  clerks — appointment  and  defaults — clerks  death. 

§  569.  Particular  provisions  as  to  circuit  and  district  court  clerks  and 
deputies  in  various  districts. 

§  570.     Oath  of  clerks. 

§  571.     Place  of  residence  of  circuit  and  district  court  clerks. 

§  572.     Bond  of  circuit,  district  and  Supreme  Court  clerks. 

§  573.     Bond  of  clerk  of  Court  of  Claims. 

§  574.     Bond  of  deputy  circuit  and  district  court  clerks. 

§  575.     Increase  of  bond. 

§  576.     Compensation  of  Supreme  Court  clerk. 

§  577.     Compensation   of  clerks    of   circuit  court   of   appeals. 

§  578.     Salary  of  clerk  of  Court  of  Claims  and  assistant. 

§  579.     General  provision  as  to  compensation  in  circuit  and  district  court. 

§  580.     — fees   and  compensation   in   California,   Oregon   and  Nevada. 

§  581.     — additional   compensation  m  prize  cases. 

§  582.     Compensation  in  each  year  must  be  from  fees  thereof. 

§  583.     Clerks   not  to  charge  unearned   fees. 

§  .584.  No  allowance  for  rule  days,  nor  doul)le  allowance  when  both  courts 
in  session. 

§  584%.     No  per  diem  except  when  court  opens. 

§  585.  Salaries  of  deputy  circuit  clerks  paid  by  clerks  and  allowed  as 
expenses. 

§  580.  Salaries  of  deputy  district  clerks  paid  by  clerks  and  allowed  as 
expenses. 

§  587.     Duty  of  Supreme  Court  clerk  to  account  and  pay  over  surplus  fees. 

§  588.  Duty  of  circuit  courts  of  appeals  clerks  to  accoimt  and  pay  over 
surplus  fees. 

§  589.    Circuit  and  district  clerks  to  account  semi-annually  as  to  fees. 

579 


§   558  CLERKS    OF    UNITED    STATES    COURTS.  £Code  Fed. 

§  590.     Naturalization  fees    and  return  thereof  to  bureau. 

§  591.     Surplus  fees  to  be  paid  into  Treasury. 

§  592.     Auditing  of  returns  which  may  show  a  surplus. 

§  593.  Court  of  Claims  clerk  to  report  as  to  iudgmeiits  rendered  and  de- 
cisions of  court. 

§  594.  Power  of  Court  of  Claims  clerk  to  disburse  funds — settlement  of 
accounts. 

§  595.  Duty  of  clerks  to  account  to  court  for  moneys  deposited  in  causes 
during  term. 

^  59(5.  Circuit  and  district  clerks  to  report  to  Treasury  judgments  in 
cases  where  United  States  are  parties. 

^  597.     Duty    as   to    restoration   of   records   and   compensation   therefor. 

:§  598.     Removal  of  clerk  failing  to  report  etc. — appointment  of  successor. 

5?  599.     Criminal  punishment  of  clerk  failing  to   report. 

§  600.     Punishment  for  failing  to  deposit  moneys  in  registry. 

J  GOl.     Power    of    clerks    to    administer    oatlis. 

§  U02.     — power  to  administer  oaths   in  admiralty   cases. 

§  603.     Circuit  or  district  coiut  clerk  not  to  act  as  receiver  or  master. 

.§  604.     Duty  to  be  in  office  on  first  Mondays,  for  equity  cases. 

:§  605.     — to  report  moneys  paid  in  revenue  cases. 

■J  606.  Attorney  (ieneral  to  require  clerks  to  account  for  moneys — dock- 
et books. 

§  558.     Cross-references  and  matters  not  included. 

Elsewhere  will  be  found  enactments  prescribing  duties  of  the 
c-lerk  in  issuing  attachments  against  delinquent  postmasters,  etc.  ;-^' 
<md  in  naturalization  proceedings;^  forbidding  clerks  acting  as 
commissioners  ;2  or  attorneys.^  Provisions  respecting  clerks'  fees 
are  contained  in  the  chapter  on  fees."*  Clerks  have  sometimes  power 
to  adjourn  t-ourt^  and  to  make  orders  in  admiralty.^  They  issue 
writs  of  error."  They  are  required  to  keep  certain  records  in  bank- 
ruptcy.* Provisions  of  the  Federal  statutes  permitting  naturaliza- 
tion'* or  timber  culture  proofs^''  or  homestead  entry  proofs^  ^  before 
clerks  of  courts  of  record,  are  not  included. 
Author's  section. 

20Post.  §  1401.  sAnte.  §  386. 

iPost,  §§  2395-2396.  9See  act  Feb.  1.  1876.  c.  5.  19  Stat. 

2Post.  §  673.  2,  U.  S.  Comp.  Stat.  1901,  p.   V.VM. 

sAnte.  §  496.  loSee  act  March  4.  1896.  c.  40.  29 

4Post.  §  707,  et  seq.  Stat  43,  U.  S.   Comp.   Stat.    1901.  p. 

SAnte,  §§  .362-364.  1537. 

«Ante,  §  183.  iiSee  R.   S.   §   2294,   U.   S.   Comp. 

'Post,  §  1925.  Stat.  191,  p.  1396. 

580 


Procedure]  RESIDENCE,    DISABILITIES   AND    DUTIES.  §   561 

§  559.     Appointment  of  Supreme  Court  clerk. 

The  Supreme  Court  shall  have  power  to  appoint  a  clerk  .  .  . 
for  said  court. 

R.  S.  §  677,  U.  S.  Comp.  Stat.  1901,  p.  5.59. 

The  scttion  provides  also  for  the  appointment  of  a  marshaUs  and  «''• 
Te\)orter. 

§  560.     Appointment  of  Supreme  Court  deputy  clerks. 

One  or  more  deputies  of  the  clerk  of  the  Supreme  Court  may  be 
appointed  by  the  court  on  the  application  of  the  clerk,  and  may  be 
removed  at  the  pleasure  of  the  court.  In  case  of  the  death  of  the 
clerk,  his  deputy  or  deputies  shall,  unless  removed,  continue  in  of- 
fice and  perform  the  duties  of  the  clerk  in  his  name,  until  a  clerk 
is  appointed  and  qualified ;  and  for  the  defaults  or  misfeasances  in 
office  of  any  sucli  deputy,  whether  in  the  lifetime  of  the  clerk  or 
after  his  death,  the  clerk,  and  his  estate,  and  the  sureties  in  his 
official  bond  sliall  be  liable;  and  his  executor  or  administrator  shall 
have  such  remedy  for  any  such  default  or  misfeasance  committed 
after  his  death  as  the  clerk  would  be  entitled  to  if  the  same  liad 
occurred  in  his  lifetime. 

R.  S.  §  678,  U.  S.  Comp.  Stat.  1901,  p.  559. 

This  section  was  enacted  in  1872.15 

§  561.  Residence,  disabilities  and  duties  of  Supreme  Court  clerk. 
The  clerk  of  this  court  shall  reside  and  keep  the  office  at  the  seat 
of  the  national  government,  and  he  shall  not  practise  either  as  at- 
torney or  counselor  in  this  court  or  in  any  other  court  while  he 
shall  continue  to  be  clerk  of  this  court.  The  clerk  shall  not  permit 
any  original  record  or  paper  to  be  taken  from  the  court  room,  or 
from  the  office  without  an  order  from  the  court;  but  records  on 
appeals  and  writs  of  error,  exclusive  of  original  papers  sent  up  lioi-e- 
with,  may  be  taken  to  a  printer  to  be  printed,  under  the  require- 
ment of  Rule  10. 

Clauses  1  and  2  of  rule  1  of  Supreme  Court  as  revised  and  corrected 
December  term,  1858,i6  and  Xov.  13,  1882.17 

The  clerk  is  also  required  to  keep  the  records  of  the  old  court  of  ap- 
peals, is 

ispost.  §  614.  1621  How.  V. 

isAct  June  8.  1872,  c.  336,  17  Stat.  i'106  U.  S.  vii. 

XiO.  1  sAnte  §  380. 

581 


§  562  CLERKS    OP    UNITED    STATES    COURTS.  [Code  Fed. 

§  562.     Court  of  claims  Clerk  and  deputies. 

The  said  court  [of  claims]  shall  appoint  a  chief  clerk,  an  assist- 
ant clerk,  if  deemed  necessary,  .  .  .  The  clerks  shall  take 
an  oath  for  the  faithful  discharge  of  their  duties,  and  shall  be 
under  the  direction  of  the  court  in  the  performance  thereof;  and 
for  misconduct  or  incapacity  they  may  be  removed  by  it  from  office ; 
but  the  court  shall  report  such  removals,  with  the  cause  thereof,  to 
Congress,  if  in  session,  or,  if  not,  at  the  next  session.  .  .  . 
R.  S.  §  1053,  U.  S.  Comp.  Stat.  1901,  p.  730. 

The  section  also  provides  for  a  bailiif  and  messenger.i 

§  563.     Appointment,  duties  and  salary  of  clerks  of  circuit  court 
of  appeals. 

The  court  shall  also  appoint  a  clerk,  who  shall  perform  and  ex- 
ercise the  same  duties  and  powers  in  regard  to  all  matters  within 
its  jurisdiction  as  are  now  exercised  and  performed  by  the  clerk  of 
the  Supreme  Court  of  the  United  States,  so  far  as  the  same  may  be 
applicable. 

Part  of  §  2,  act  Mar.  3,  1891,  c.  .517,  26  Stat.  82G,  U.  S.  Comp.  Stat. 
1901,  p.  547. 

The  duty  of  such  clerks  to  account  and  pay  over  surplus  fees  is  set 
forth  in  a  following  section. 2  Their  salary  is  three  thousand  dollars  a 
year. 3  The  rules  in  different  circuits  contain  various  provisions  as  to 
their  residence,  oath,  bond  duties  and  disabilities.* 

§  564.     Appointment  of  circuit  court  clerks. 

Hereafter  all  appointments  of  clerks  of  circuit  courts  of  the  Unit- 
ed States  shall  be  made  by  the  circuit  judges  of  the  respective  cir- 
cuits in  which  such  circuit  courts  are  or  may  be  hereafter  establish- 
ed; and  all  provisions  of  law  inconsistent  herewith  are  hereby  re- 
pealed. 

Part  of  §  3,  act  Feb.  6,  1889,  c.    113,  25  Stat.  655,  U.  S.  Comp.  Stat. 
1901,  p.  497. 

The  appointment  of  a  clerk  for  the  circuit  court  by  the  circuit  judge 
of  the  particular  circuit  is  provided  also  by  R.  S.  §  619.  The  same  person 
may  be  both  clerk  of  the  circuit  court  and  of  the  circuit  court  of  appeals.5 

iPost,  §  684.  "iSee    Rule    5    in    each    circuit    as 

">T>    +    «  KQQ  printed  in  the  Appendix, 

zpost,  §  58«.  sUnited  States  v.  Harsha,  56  Fed. 

sPost,  §  577.  953. 

582 


Procedure]        APPOINTMENT  OF  DISTRICT   COURT  CLERKS.  §  567 

A  clerk  is  essentially  a  ministerial  officer,  hence  when  process  is  directed 
to  be  issued  it  is  his  duty  to  comply,  and  he  is  liable  for  failure  to  do  so.6 

§  565.     Appointment  and  removal  of  circuit  court  clerks  in  ninth 
circuit. 

In  the  ninth  circuit  of  the  United  States  a  circuit  judge  may  ap- 
point or  remove  the  clerk  of  the  circuit  court  for  the  district  in 
which  the  circuit  judge  resides.  In  all  other  cases  clerks  of  such 
courts  shall  be  appointed  as  provided  for  by  existing  laws. 

§1  of  appropriation  act  Mar.  3,  1893,  c.  211,  27  Stat.  714,  U.  S.  Corap. 
Stat.  1901,  p.  497. 

§  566.  Deputy  circuit  clerks — clerks'  death — liability  for  de- 
faults. 
One  or  more  deputies  of  any  clerk  of  a  circuit  court  may  be  ap- 
pointed by  such  court,  on  the  application  of  the  clerk,  and  may  be 
removed  at  the  pleasure  of  judges  authorized  to  make  the  appoint- 
ment. In  case  of  the  death  of  the  clerk,  his  deputy  or  deputies 
shall,  unless  removed,  continue  in  office,  and  perform  the  duties  of 
the  clerk  in  his  name  until  a  clerk  is  appointed  and  qualified ;  and 
for  the  defaults  and  misfeasances  in  office  of  any  such  deputy, 
whether  in  the  lifetime  of  the  clerk  or  after  his  death,  the  clerk, 
and  his  estate,  and  the  sureties  in  his  official  bond,  shall  be  liable ; 
and  his  executor  or  administrator  shall  have  such  remedy  for  any 
such  defaults  or  misfeasances  committed  after  his  death  as  the  clerk 
would  be  entitled  to  if  the  same  had  occurred  in  his  lifetime. 
R.  S.  §  624,  U.  S.  Comp.  Stat.  1901,  p.  498. 

There  are  various  provisions  as  to  the  appointment  of  deputy  clerks 
and  their  residence  and  as  to  liability  for  their  misfeasances  and  defaults 
in  special  statutes  applicable  to  particular  districts.  These  are  to  be 
found  in  a  note  to  a  subsequent  section  of  the  code.s 

§  567.     Appointment  of  district  court  clerks. 

A  clerk  shall  be  appointed  for  each  district  court  by  the  judge 
thereof,  except  in  cases  otherwise  provided  for  by  law. 
R.  S.  §  555,  U.  S.  Comp.  Stat.  1901,  p.  451. 

sUnited    States    v.    Bell,    127    Fed. 
1002. 

8See  post,  §  569,  and  notes. 

583 


§  5C8  CLKRKS   OF    UNITED   STATES    COURTS.  [Code  Kod. 

§  568.     Deputy  district  clerks — appointment  and  defaults — clerk's 
death. 

One  or  more  deputies  of  any  clerk  of  a  district  court  may  be  a]i- 
pointed  by  tlie  court,  on  the  application  of  the  clerk,  and  may  be 
removed  at  the  pleasure  of  judges  authorized  to  make  the  appoint- 
ment. In  case  of  the  death  of  the  clerk,  his  deputy  or  deputies  shall, 
unless  removed,  continue  in  office  and  perform  the  duties  of  the 
clerk,  in  his  name,  until  a  clerk  is  appointed  and  qualified;  and 
for  the  default  or  misfeasances  in  office  of  any  such  deputy,  whether 
in  the  lifetime  of  the  clerk  or  after  his  death,  the  clerk,  and  his 
estate,  and  the  sureties  in  his  official  bond,  shall  be  liable;  and 
his  executor  or  administrator  shall  have  such  remedy  for  any  such 
default  or  misfeasances  committed  after  his  death  as  the  clerk  would 
be  entitled  to  if  the  same  had  occurred  in  his  lifetime. 
R.  S.  §  558,  U.  S.  Comp.  Stat.  1901,  p.  452. 

Particular    provisions    regarding    deputies    in    various    districts    will    be 
found  in  a  note  to  the  next  section  of  this  code. 

§  569.  Particular  provisions  as  to  circuit  and  district  court 
clerks  and  deputies,  in  various  districts. 
There  are  circuit  and  district  court  clerks  in  each  of  the  various 
judicial  districts  in  the  several  States,  just  as  there  are  separate  cir- 
cuit and  district  courts  in  every  district.^  °  In  some  instances,  how- 
ever, one  person  acts  as  clerk  for  both  courts.  It  would  serve  no  use- 
ful purpose  to  reproduce  here  the  various  statutes  authorizing  the 
appointment  of  clerks  in  district  newly  created,  and  tliey  are  omit- 
ted. But  provisions  for  additional  clerks  or  deputies,  of  either  or 
both  courts,  at  different  places  within  a  district;  and  provisions  for 
the  establishment  of  clerk's  offices  at  designated  places  in  a  district, 
are  contained  in  many  statutes  providing  for  terms  of  court  in  a 
district,  or  for  the  creation  of  judicial  divisions  of  a  district,  and 
these  are  collected  in  a  note  hereto.  Some  of  the  statutes  creating 
these  judicial  divisions  omit  provisions  for  clerks  or  deputies  or 
clerk's  officers  thei'ein,  leaving  the  regulation  thereof  to  the  general 
statutory  law. 

Autlior's  section. 

[a]     Alabama,  Arkansas  and  California. 
The  act  of  1903  creatinir  a  southern  division  of  the  northern  district  of 


lOAnte,  §  10.3. 

5S4 


rrotedure]  PARTICULAR    PROVISIONS   AS    TO    CLERKS.  §  569    [b] 

Alabama  requires  tliat  '"the  clerks  of  the  circuit  and  district  courts  of  the- 
Boutliern  division  of  the  northern  district  of  Alal)ama  sliall  maintain  an 
office  in  charge  of  themselves  or  a  deputy  at  said  city  of  Anniston  which 
shall  be  kept  open  at  all  times  for  the  transaction  of  the  business  of  said 
courts."'!  1  In  the  northern  division  of  the  southern  district  the  clerk  and 
marshal  of  the  district  are  required  to  attend  the  terms  at  Selma,  no  ad- 
ditional clerk  being  authorized,  though  "if,  in  the  opinion  of  the  court, 
it  shall  become  necessary,  a  deputy  clerk  may  be  appointed."!  2  There  is 
the  same  provision  for  the  terms  at  Tuscaloosa,  in  tlie  western  division  of 
the  northern  district.!  3 

By  R.  S.  §  o5(i,  as  amended  in  1877.1*  two  district  court  clerks  were 
authorized  in  the  eastern  district  of  Arkansas,  one  having  office  and  re- 
siding at  Little  Rock  and  the  other  at  Helena.  By  act  of  1897  one  ad- 
ditional circuit  court  clerk  and  one  additional  district  court  clerk  wero 
authorized,  to  reside  and  keep  office  at  Batesville  in  the  eastern  district; i» 
and  additional  clerks  for  each  of  those  courts  were  authorized  at  Texarkana 
in  the  western  disti-iet  by  act  of  1898; ig  and  by  act  of  1902  creating  the 
Harrison  division  of  the  western  district  it  was  provided  ""that  there  shall 
be  appointed,  in  the  manner  required  by  law,  a  clerk,  who  shall  keep  hi~ 
office  at  the  city  of  Harrison."!" 

la  the  southern  district  of  the  state  of  California  it  is  provided  by 
act  of  1900!  8  that  "exceiit  when  covirt  is  in  session,  and  a  jud^f' 
present,  [at  Fresno]  the  clerk"s  office  of  the  said  courts  may  be  at 
Los  Angeles,  where  all  records  for  said  courts  may  be  kept,  and  all  duties 
performed;  but  should,  in  the  judgment  of  the  district  judge  and  the  clerk,, 
the  business  of  said  courts  hereafter  warrant  the  employment  of  a  deputy 
clerk  at  Fresno,  California,  a  deputy  clerk  may  be  appointed  to  reside 
and  keep  his  office  at  Fresno."  An  act  of  IflOd  providing  terms  in  tli  • 
northern  district  at  Eureka  required  the  circuit  and  district  court  clerks 
and  marshals  in  that  district  to  perform  the  duties  pertaining  to  their 
offices  for  the  terms  at  Eureka.!  9 

[b]     Georgia. 

The  act  of  1880  dividing  the  southern  di  trict  of  Georgia  into  two  divi- 
sions provided  that  "no  additional  clerk  or  marshal  shall  be  appointed  in 
said   district."20      The  act    creating    the    northeastern,    southwestern    and 

11  Act    Feb.    16,    1903,   c.   554,    §    6,         i^Act  March   18.  1902.  c.  269.  §   5- 

32  Stat.  832.  U.  8.  Comp.  Stat.  1903,  .32  Stat.  72,  V.  S.  Comp.  Stat.  1903. 
p.  53.  p.  55. 

i-'Act  March   3.  1905.  c.   U19.   §  2,         i8ActMav29.  1900.  c.  594,  31  Stat. 

33  StMt.  988.  C.  S.  Comp.  Stat.  1905,    220.  U.  S.  Comp.  Stat.  1901.  p.  328. 
P-  78.  19 Act   June   29.    1906,   c.    3626,   3-t 

13 Ibid.  S  8.  Stat.  631. 

itU.  S.  Comp.  Stat.  1901.  p.  451.  20Act  Jan.  29.  1880.  c.  17.  §  2,  21 

15 Act  Feb.  20.  1897.  c.  269.  §  8.  29  Stat.  63.   V.   S.  Comp.  Stat.   1901.  p, 

Stat.  592,  U.  S.  Comp.  St;it.   1901.  p.  ;j:54.      .Mhanv    division:      Act    March 

322.  .].    1  !!().->.    .-.    1431.    33     Stat.     999,     as. 

isAct  Julv  7.   1898.  c.  .371.  S    1.  30  amended  34  Stat.  547. 
Stat.    682,    U.    S.    Comp.    Stat.    1901. 
p.  323. 

585 


§   569   [c]  CLERKS    OB'    UNITED   STATES    COURTS.  [Code   Fed. 

Albany  divisons  of  that  district  contained  the  same  clause  but  with  the 
further  provision  in  the  case  of  the  northeastern  and  southwestern  divi- 
sions, that  "if  in  the  opinion  of  the  court  it  shall  become  necessary,  a  deputy 
clerk  may  be  appointed."2i  In  the  northern  Georgia  district,  the  act  cre- 
ating the  western  division  provided  that  "the  clerk  of  the  district  and  the 
clerk  of  the  circuit  court  shall  appoint  a  deputy  clerk  for  the  courts  for  said 
division,  and  the  marshal  of  said  northern  district  shall  provide  suitable 
rooms  for  the  occupancy  of  said  courts  and  the  officers  thereof. "2 2  The  act 
creating  the  northwestern  division  thereof  provided  for  similar  appointment 
of  deputies  "who  shall  reside  and  maintain  an  office  at  the  city  of  Rome 
each  of  whom,  in  the  absence  of  the  clerks,  shall  e.xercise  all  the  powers 
and  perform  all  the  duties  of  his  principal  within  the  division  for  which  he 
shall  be  appointed:  Provided,  That  the  appointment  of  such  deputies  shall 
be  approved  by  the  court  for  which  they  shall  be  respectively  up 
pointed,  and  they  may  be  removed  by  such  court  at  pleasure."2  3  The  act 
creating  the  eastern  division  thereof  provided  that  no  additional  clerk  be 
appointed,  but  "a  deputy  clerk  may  be  appointed  by  the  court  to  the  duties 
of  that  oflfice  in  the  eastern  division  .  .  .  The  compensation  of  the  clerks 
shall  not  be  changed  or  affected  by  the  failure  to  appoint  a  deputy  clerk  at 
Athens."! 

[c]     Idaho  and  Illinois. 

The  act  of  1892  respecting  the  divisions  of  the  district  of  Idaho  pro- 
vided "That  the  clerk  of  the  circuit  and  district  courts  for  said  district  shall 
each  appoint  a  deputy  clerk  at  the  place  where  their  respective  courts  are 
required  to  be  held  in  the  division  of  the  district  in  which  such  clerk  shall 
not  himself  reside,  each  of  whom  shall,  in  the  absence  of  the  clerk,  exercise 
all  the  powers,  and  perform  all  the  duties  of  clerk  within  the  division 
for  which  he  shall  be  appointed;  provided,  that  the  appointment  of  such 
deputies  shall  be  approved  by  the  court  for  which  they  shall  respectively 
be  appointed  and  may  be  anulled  by  such  court  at  its  pleasure,  and  the 
clerks  shall  be  responsible  for  the  official  acts  and  negligence  of  all  such 
deputies."  2 

In  the  act  of  1905  redistricting  Illinois  it  is  provided  for  the  northern 
district  that  "the  marshal  and  clerk  of  said  disti-ict  shall  each,  respectively, 
appoint  at  least  one  deputy  to  reside  in  said  city  of  Freeport,  unless  he 
.shall  reside  there  himself,  and  also  maintain  an  office  at  that  place  of 
holding  court. "3  The  same  act  provides  in  the  case  of  the  southern  dis- 
trict that  "the  clerks  of  the  circuit  and  district  courts  of  the  southern  dis- 
trict of  Illinois  shall  be  respectively  the  clerks  of  the  courts  of  both  divi- 
sions of  the  said   district;   that  each  of  said  clerks  or  his  deputies  shall 

2iAct   Feb.    15,   1889,   c.   168,    §   2,        lAct  Feb.  28,  1901,  c.  621,  §  2,  31 

25  Stat.  671.  U.  S.  Comp.  Stat.  1901,  Stat.  818,  U.  S!  Comp.  Stat.  1901,  p. 

p.  337;   act  June  30,  1902,  c.  1338,  §  241. 
2,  32  Stat.  550.  2Act  July  5,   1892,  c.   145,   §   5,  27 

22Act  March  3,  1891,  c.  566,  §  4,  36  Stat.  73.  U.  S.  Comp.  Stat.   1901,  p. 

Stat.   1110,   U.  S.  Comp.   Stat.   1901,  343. 
p.  339.  3Act  :\larch  3,  1905.  c.  1427.  §  0,  33 

23Act  April  12,  1900,  c.  185,  §  4,  31  Stat.    993,   U.    S.   Comp.    Stat.    1905, 

Stat.  74,  U.  S.  Comp.  Stat.  1901,  p.  p.  91. 
340. 

586 


Procedure]  PARTH  ULAK    PROVISIONS    AS   TO    CLERKS.  §  569   [dj 

keep  an  office  open  at  all  times  at  each  of  the  places  of  holding  of  saii 
court  and  shall  there  keep  the  record,  files  and  documents  pertaining  to  the 
■court  of  that  division;  and  said  clerks  shall  be  entitled  to  the  same  fees 
now  allowed  by  law.  In  addition  to  his  powers  to  appoint  deputies,  as 
now  prescribed  by  law,  each  of  said  clerks  shall  be  empowered  to  appoint, 
with  the  approval  of  the  court,  a  chief  deputy  for  a  court  of  that  divi. 
sion  in  which  he  himself  may  not  reside,  who  shall  have  all  the  powers  of 
the  clerk  in  his  absence.  That  the  marshal  and  clerk  for  said  southern 
district  of  Illinois  shall  respectively  appoint  at  least  one  deputy  residing 
in  the  said  northern  division,  and  also  maintain  an  office  at  that  place  of 
holding  court. "4 

[d]     Indiana  and  Iowa. 

By  R.  S.  §  6258  in  the  district  of  Indiana  a  deputy  clerk  of  the  circuit 
court  must  be  appointed  for  said  court  held  at  Xew  A!l)aiiy,  and  a  depnly 
clerk  for  said  court  held  at  Evansville,  who  shall  reside  and  keep  their 
offices  at  said  places  respectively.  Each  deputy  shall  keep  in  his  office 
full  records  of  all  actions  and  proceedings  in  the  circuit  court  held  at  the 
same  place,  and  shall  have  the  same  power  to  issue  all  process  from  the 
:said  court  that  is  or  may  be  given  to  the  clerks  of  other  circuit  courts  in 
like  cases."  There  are  similar  provisions  for  the  district  court  in  R. 
S.  §  .559; 9  and  in  later  acts  for  deputy  clerks  at  Fort  Wayne  and  Ham- 
mond.i* 

Prior  to  the  establishment  of  two  districts  in  Iowa  R.  S.  §  500 
provided  that  "in  the  district  of  Iowa  a  deputy  clerk  of  the  district  court 
shall  be  appointed  to  each  place  in  the  four  divisions  of  said  district  where 
said  court  is  required  to  be  held,  each  of  whom,  in  the  absence  of  the  clerk, 
may  exercise  all  the  official  powers  of  clerk,  at  the  place  and  within  tin- 
division  for  which  he  is  appointed."  An  act  of  1880  provided  that  "the  clerk 
of  the  district  court  shall  be  the  clerk  of  the  circuit  court  at  all  the  places 
where  the  same  is  held  in  said  district,  except  at  Des  Moines. "n  The  act 
making  two  districts,  each  having  judicial  divisions,  provided  that  "there 
shall  be  appointed  by  the  judge  of  tlie  northern  district  of  Iowa,  with  the 
approval  of  the  circuit  judge  of  the  eighth  judicial  circuit,  a  clerk  for  the 
district  and  circuit  courts  in  and  for  said  northern  district  of  Iowa.  The 
persons  now  acting  as  clerks  for  the  district  of  Iowa  shall  be  the  clerks  for 
the  southern  district  of  Iowa."i3  The  statute  of  1900  creating  a  southern 
division  of  the  southern  Iowa  district  provided  that  "the  clerk  of  the  circuit 
and  district  courts  for  said  southern  district  and  tlie  marshal  of  .said 
district  shall  each  appoint  a  deputy,  who  shall  reside  and  maintain  an 
office  at  Creston,  in  Union  County:  Provided,  That  the  appointment  of 
such   deputy   shall  be  approved  by   the    court   for  which   they   shall  be  re- 

4Tbid.  §  10.  ii.Act  .fune  4,  1880.  c.  110.  21  Stat. 

8U.  S.  Cornp.  Stat.   1901,  p.  498.         l.w. 

H*.  S.  Comp.  Stat.  1901,  p.  453.  i^Act   Julv   20.    1882,   c.   312.    §   4, 

lOAct  March   .3.   ISSl,  c.   1,54,   §   2.    22  St:it.  172,' U.  S.  Comp.  Stat.  1901, 
21    Stat.    511;    act    Feb.    14.    1899,   c.     p.  350. 
165,   §   2,   30   Stat.   83(i.   U.   S.   Comp. 
Stat.  1901,  pp.  345,   .349. 

587 


§   569    [e]  CLEUKS    OF    UNITED    STATES    COURTS.  [Podo    Vc6. 

and  the  clerk  and  marshal  shall  be  responsible  f(ir  the  official  aets  a";! 
•^pectively  appointed,  and  they  may  be  removed  by  such  court  at  pleasure; 
neglects  of  all  their  de])nties."i4  The  act  of  1904  creating  the  Daveniwrt 
division,  provided  that  "the  clerks  of  the  circuit  and  district  courts  of 
said  district  shall  maintain  an  office,  in  charge  of  themselves  or  a  deputy, 
at  the  said  city  of  Davenport,  Iowa,  for  the  transaction  of  tlie  business 
of  said  division."! 5 

[e]     Kansas. 

By  act  of  1879  the  clerk  of  the  district  court  and  marshal  were  re(iuired 
To  appoint  a  deputy  to  reside  and  keep  their  offices  at  Fort  Scott,  and  who 
in  the  absence  of  their  principals  were  required  to  do  and  perform  all  the- 
duties  appertaining  to  said  offices  for  the  circuit  and  district  courts. i"  Ther(> 
was  later  a  similar  provision  for  deputies  at  Salinais  and  an  act  of  1892 
added  this  proviso  as  to  deputies  at  Fort  Scott,  viz.:  that  '"the  appointment 
of  such  deputy  shall  be  approved  by  the  court  for  which  they  shall  be  re- 
spectively appointed,  and  they  may  be  removed  by  such  court  at  pleasure,, 
and  the  clerk  and  marshal  shall  be  responsible  for  the  official  acts  and  neg- 
lects of  all  their  deputies."i9  An  act  of  1890  provided  that  "the  clerks  of 
the  circuit  and  district  courts  for  said  district  shall  each  appoint  a  deputy 
clerk  at  the  city  of  Wichita,  each  of  whom  shall,  in  the  absence  of  the 
clerk,  exercise  all  the  powers  and  perform  all  the  duties  of  clerk  within 
the  division  for  which  he  shall  be  appointed:  provided,  that  the  appoint- 
ment of  such  deputies  shall  be  approved  by  the  court  for  which  they  shall 
be  respectively  appointed,  and  they  may  be  removed  by  such  court  at  pleas- 
ure; and  the  clerk  shall  be  responsible  for  the  official  acts  and  neglects  of 
all  such  deputies."2  0  The  appointment  of  deputies  to  reside  at  Fort  Scott 
under  the  same  conditions  is  provided  for  by  act  of  1892.21 

[f]     Kentucky  and  Louisiana. 

By  R.  S.  §  557,1  "in  the  district  of  Kentucky  a  c?erk  of  the  district  court 
shall  be  appointed  at  each  place  of  holding  the  court,  in  the  same  manner 
and  subject  to  the  saine  duties  and  responsibilities  whicli  are  or  rray  be 
provided  concerning  clerks  in  independent  districts."  There  is  a  similar 
provision  as  to  circuit  court  clerks. 2  The  act  of  1888  establishing  llie 
Owensborough  division  provided  that  "in  and  for  the  Owensborough  divi- 
sion, the  clerk   of  the  district  of   Kentucky  at  Louisville  shall   appoint   a 

i4Act  June  1.  1900.  c.  (501.  §  4.  .31  isAct   :\Iav  3.   1892,  c.   .59,   §   4,  27 

Stat.  2.50.  U.  S.  Comp.  Stat.  1901.  p.  Stat.  24.  I'.' S.   Conip.   Stat.  1901.   p. 

354.  3.58. 

i5Act  April  28.  1904.  c.  18()0.  §  4.  -"Act  June  9.  1890.  c.  403.  §  3.  26 

33  Stat.  547,  U.  S.  Comp.  Stat.  1905.  ^tat.  129.  U.  S.  CV>mp.  Stat.   1901.  p. 

p.  98.  •'•»1- 

,,.   ^     c      ,    o     ,o-n         1-     .    T  "Act  Mav  3.  1892,  c.  59,   §  4.  27 

iTAct  .vlareh   3.    18/9,  c.   l,i.   ^   2.  ox,  i..   34    t-    «    Cnmn    Stat    1901     n 

20  Stat.  3.55,  U.  S.  Comp.  Stat.   1901,  Jg^ 

P-  ^^^-  ir.  S.  Comp.  Stat.  1901,  p.  4.52. 

IS  Act  Aug.  9.  1888.  c.  819.  §  2.  25  2R.  s.   §  620.  U.    S.    Comp.    Stat. 

Stat.  392.  1901,  p.  497. 

588 


rrceduie]  PARTICULAR   PROVISION'S  AS  TO  CLERKS  §   56fi    [g] 

deputy  who  shall  reside  at  Owensborough,  and  in  case  of  the  deatli  or 
removal  of  said  deputy,  or  from  other  cause  it  becomes  necessary,  he 
shall  appoint  a  successor  or  successors  to  said  deputy  in  like  manner  in 
all  respects  as  by  law  he  may  now  appoint  and  remove  deputies;  and  he  may 
require  bond  of  said  deputy  to  himself,  with  surety  for  the  faithful  dis- 
charge of  his  duties  and  for  indemnity  in  case  of  breach,  on  which  ac- 
tions may  be  maintained  in  said  district  court;  and  said  deputy  shall  keep 
and  preserve  the  records  of  the  court  at  Owensborough;  issue  all  writs, 
precepts,  and  process,  and  perform  all  other  duties  devolved  upon  his  prin- 
■cipal."3 

For  the  divisions  of  the  western  district  of  Louisiana,  it  is  provided  that 
'a  deputy  clerk  of  the  district  court  shall  be  appointed  at  each  place  in 
the  four  divisions  of  said  western  district  where  said  court  is  required  to 
be  held,  each  of  whom,  in  the  absence  of  the  clerk,  may  exercise  all  the 
official  powers  of  the  clerk  at  the  place  and  within  the  division  for  which 
he  is  appointed."*  And  for  the  divisions  of  the  eastern  district  that  ''a 
deputy  clerk  of  the  district  court  shall  be  appointed  at  each  place  in  the 
two  divisions  of  said  eastern  district  where  said  court  is  required  to  be 
held,  each  of  whom,  in  the  absence  of  the  clerk,  may  exercise  all  the  official 
powers  of  clerk  at  the  place  and  within  the  division  for  which  he  is  ap- 
pointed."5  The  act  creating  the  Lake  Charles  division  provided  that  "the 
flerks  of  the  circuit  and  district  courts  of  said  district  shall  maintain  an 
office  in  charge  of  themselves  or  deputy  at  the  said  city  of  Lake  Charles, 
which  shall  be  kept  open  at  all  times  for  the  transaction  of  the  business 
of  said  division:  Provided,  however.  That  suitable  rooms  and  accommoda- 
tions are  furnished  for  holding  said  courts  free  of  expense  to  the  government 
of  the  United  .States."6 

T^g]     Maryland  and  Michigan. 

The  act  of  1892"  requiring  circuit  and  district  court  terms  at  Cumberland, 
provides  that  the  clerk  of  the  district  is  to  appoint  at  least  one  deputy  to 
reside  in  said  city  of  Cumberland,  "unless  he  shall  reside  there  himself, 
and  also  maintatin  an  office  at  that  place  of  holding  court."  In  the  western 
district  of  Michigan  an  act  of  1878  provides  that  "the  clerk  of  the  circuit 
and  district  courts  for  the  westcj-n  district  of  Miciiigan  shall  apj)oint  a 
deputy  clerk  for  said  courts,  held  at  Marquette,  who  shall  reside  and 
keep  his  office  at  that  place;  and  said  deputj'  shall  keep  in  his  office  full 
records  of  all  actions  and  proceedings  in  the  said  circuit  and  district 
courts  for  the  northern  division  of  said  district  held  at  that  place,  and 
«hall  have  the  same  power  to  issue  all  processes  from  the  said  courts  and 

3Act  Aug.  8.  1SS8.  c.  792.  §  3.  25  Stat.  438.  U.  S.  Comp.  Stat.  1901.  p. 
•Stat.    .-^90.    U.    S.    Comp.    Stat.    1901.    307. 

p.  300.  6 Act   IMarch    2.   190.-).  c.   1308.    §   4. 

4 Act  Aug.  8.  1888.  c.  789.  §  (i.  25  33  Stat.  841.  U.  S.  Comp.  Stat.  190.b. 
Stat.    388.    r.    S.    Comp.    Stat.    1901,    p.  101. 

p.  3f>(;.  7 Act  March  21.  1892.  c.  20  §  2.  2Y 

'-Alt   Aug.  13.  1SS8.  c.  SH9.  §  (>.  2.'i     Stat.   11,  U.  S.  Comp.  Stat.   1901.  p. 

308. 
589 


S  569   [h]  CLERKS    OP   UNITED    STATES    COURTS.  [Code  Fed. 

perform  any  other  duty  that  is  or  may  be  given  to  the  clerks  of  other 
circuit  and  district  courts  in  like  cases."*  By  act  of  1894  governing 
the  eastern  district  "the  clerks  of  the  circuit  and  district  courts  for  the 
eastern  district  of  Michigan  shall  each  keep  his  office  at  the  city  of  Detroit,, 
and  shall  each  appoint  a  deputy  clerk  for  said  courts  held  at  Bay  Cit}%  who 
shall  reside  and  keep  his  office  at  that  place,  and  such  deputy  clerk  or 
clerks  shall  keep  in  his  office  dockets  and  full  records  of  all  actions  and 
proceedings  in  said  circuit  and  district  courts  for  the  northern  division 
of  said  district  held  at  that  place,  and  shall  have  the  same  power  to  issue- 
all  processes  from  said  courts,  and  perform  any  other  duty  that  is  or  may 
be  given  to  the  clerks  of  other  circuit  and  district  courts  in  like  cases."* 

[h]     Minnesota  and  Mississippi. 

An  act  of  1890  provided  that  "the  clerks  of  the  circuit  and  district  courts 
of  the  district  of  Minnesota  shall  each  appoint  a  deputy  clerk  at  the  place 
where  their  respective  courts  are  required  to  be  held  in  the  division  of  the 
district  in  which  such  clerk  shall  not  himself  reside,  who  shall  keep  his 
office  and  reside  at  the  place  appointed  for  holding  said  courts  in  the  divi- 
sion of  such  residence,  and  shall  keep  the  records  of  said  courts  for  such 
division,  and,  in  the  absence  of  the  clerk,  may  exercise  all  the  official  powers 
of  the  clerks  within  the  division  for  which  he  is  appointed;  provided,  that  the 
appointment  of  such  deputies  shall  be  approved  by  the  court  for  which  they 
shall  have  been  respectively  appointed,  and  may  be  annulled  by  such 
court  at  its  pleasure;  and  the  clerks  shall  be  responsible  for  the  official 
acts  and  negligence  of  their  respective  deputies." lo  In  the  northern 
Mississippi  district  an  act  of  1882  provides  that  "tlie  clerk  of  the  northern 
judicial  district  of  Mississippi  shall  be  sole  clerk  of  the  courts  of  both  divi- 
sions of  the  said  district,  to  be  appointed  in  the  manner  now  prescribed 
by  law;  that  the  said  clerk  or  his  deputies  shall  reside  at  each  of  the 
places  of  holding  said  courts,  and  shall  there  keep  an  office,  and  the  records, 
files  and  documents  pertaining  to  the  court  of  that  division ;  and  said  clerk 
shall  be  entitled  to  the  same  fees  now  allowed  to  him  by  law.  In  ad- 
dition to  his  powers  to  appoint  deputies  as  now  prescribed  by  law,  said 
clerk  shall  be  required  to  appoint  a  chief  deputy  for  the  court  of  that  divi- 
sion in  which  he  himself  may  not  reside,  who  shall  have  all  the  powers  of 
the  clerk  in  his  absence,  and  shall  reside  at  the  place  of  holding  the  court 
for  the  other  division  where  the  chief  clerk  does  not  reside."ii  In  the 
southern  Mississippi  district  an  act  of  1887  requires  the  marshal  and  clerks 
of  the  southern  district  to  appoint  deputies  to  reside  at  Vicksburg  for  the 

8Act  June  19,  1878.  c.  326,  §  4.  20        lOAct  April  2().  1890.  c.  107.  8  5.  2C> 

Stat.  176,  U.  S.  Comp.  Stat.  1901,  p.  Stat  73,  U.  S.   ("omp.   Stat.   1901,  p. 

371.  376. 

sAct  April  30.  1894,  c.  66,  §  4,  28        nAct  June   15.   1882,   c.   218.   §   4» 

Stat.    67,    U.    S.    Comp.    Stat.    1901,  22  Stat.  102,  U.  S.  Comp.  Stat.  1901, 

p.  374.  p.  379. 

690 


Procedure]  PARTICULAR   I'ROVISIONS   AS   TO    CLERKS.  §   569    [i] 

western  judicial  division  and  act  in  place  of  their  principles.!  2  There  arc 
similar  provisions  for  deputies  at  Mississippi  City  in  the  southern  division; 
and  at  Meridian  in  the  eastern  division. is 

[i]     Missouri,  North  Carolina  and  North  Dakota. 

In  Missouri  there  is  a  clerk  for  each  court  at  St.  Louis,  Hannibal,  St. 
Joseph,  Kansas  City,  Jefferson  City  and  Springfield.  1 5  In  the  creation  of 
the  southwestern  division  of  the  western  district  it  was  provided  that  the 
courts  should  meet  at  Joplin  therein,  and  the  clerk's  office  should  bo 
at  Springneld;  but  "should  in  the  judgment  of  the  district  judge, 
the  business  of  said  courts  hereafter  warrant  a  deputy  clerk  at  Jop- 
lin ...  a  deputy  clerk  [may  be]  appointed  to  reside  and  keep 
his  office  at  Joplin." 1 6  There  was  the  same  provision  in  an  act  of 
1905.  as  to  a  deputy  and  new  books  at  Cape  Girardeau  for  the  southeast- 
ern division  of  the  eastern  district,  the  clerks  from  St.  Louis  to  act 
mean  while.  17 

R.  S.  §  62118  provides  that  "in  the  western  district  of  Xorth  Carolina 
the  circuit  and  district  judges  shall  appoint  three  clerks,  each  of 
whom  shall  be  clerks  both  of  the  circuit  and  district  courts  for  said  western 
district  of  North  Carolina.  One  shall  reside  and  keep  his  ofiice  at  Statesvillo, 
one  shall  reside  and  keep  his  office  at  Asheville,  and  the  third  shall  reside 
and  keep  his  office  at  Greensborough."  An  act  of  1902  provides  that  "the 
circuit  and  district  judges  for  the  eastern  district  shall  appoint,  besides  a 
clerk  of  said  court  held  at  Raleigh,  an  additional  clerk,  who  shall  reside 
and  keep  his  office  at  Wilmington,  and  be  clerk  both  of  the  district  and 
circuit  court  held  at  Wilmington,  and  who  shall  have  the  custody  and  con- 
trol of  the  records  of  said  courts,  shall  give  the  same  bond  required  of 
the  clerk  of  circuit  and  district  courts  of  said  district,  and  shall  receive  tlie 
same  fees  and  compensation  for  services  performed  by  clerks  of  such  courts 
now  fixed  by  law."i9  A  statute  of  1903  establishing  court  terms  at  Wilkes- 
boro  provides  that  "the  clerk  of  the  United  States  circuit  and  district  courts 
at  Statesville,  North  Carolina,  shall  be  the  clerk  of  the  United  States 
circuit  and  district  courts  at  Wilkesboro,  and  he  shall  appoint  a  deputy 
clerk  of  said  court,  to  reside  at  Wilkesboro,  with  the  usual  power  of  a 
deputy  clerk  in  such  cases,  whose  compensation  shall  be  such  propor- 
tion of  the  fees  accruing  from  business  done  in  said  courts  at  Wilkes- 
boro as  shall  be  fixed  by  the  judge  of  said  district.'" 20  in  establishing  terms 
of  court  at  Washington,  N.  C.  Congress  provided  by  act  of  1905  that 
"the  clerk  of  the  United  States  circuit  and  district  courts  at  the  city  of 

i2Act  Feb.   28.    1887.   c.   279.    §   4,  i^Act   Jan.   .31.    1905.   c.   287.    §    3, 

24  Stat.  431,  U.  S.  Comp.  Stat.  1901,  33  Stat.  627,  U.  S.  Comp.  Stat.  1905, 

p.  3S1.  p.  103. 

IS  Act  April  4,  1888,  c.  58,  §  4.  2S  isU.  S.  Comp.  Stat.  1901.  p.  497. 

Stat.  78:   act  Julv  18.  1894,  c.  144,  §  isAct    April    15.    1902.    c.    508.    32 

7.   28   Stat.    115,  "U.   S.    Comp.    Stat.  Stat.    106.   U.    S.    Comp.    Stat.    1903. 

1901.  p.  382.  383.  p.  62. 

ir.Antc.  ^  381   [)J.  20Act.    Feb.   23.    1903.   c.   749.    §    2, 

isAct   Jan.    ^4.    1901.    c.    164.    5    4,  .32  Stat.  853.  U.  S.  Comp.  Stat.  1903, 

31  Stat.  739,  U.  S.  Comp.  Stat.  1901,  p.  62. 
p.  390. 

591 


S   dO'J    [j]  CLKRKS   OF    UNITED    STATES    COURTS.  [Code   Fed. 

Raleigh,  Xortli  Carolina,  shall  be  the  clerk  of  the  United  States  circuit  and 
district  courts  at  Washington,  Xorth  Carolina,  and  said  courts,  respectively, 
may,  on  the  application  of  the  clerk,  appoint  a  deputy  clerk,  with  the 
usual  powers  of  a  deputy  clerk  in  such  cases,  who  shall  reside  at  Washing- 
ion,  North  Carolina,  and  whose  compensation  shall  be  such  proportion  of 
the  fees  accruing  from  business  done  in  said  courts  at  Washington,  Xorth 
Carolina,  as  shall  be  fixed  by  the  judge  of  said  district:  Provided,  That 
the  city  of  Washington,  North  Carolina,  shall  provide  and  furnish  at  its 
-own  expense  a  suitable  and  convenient  place  for  holding  the  circuit  and 
district  courts  of  the  United  States  at  Washington,  Xorth  Carolina."2i 
In  the  Xorth  Dakota  district  an  act  of  lOOli  provides  that  "the  clerk  ol' 
the  circuit  and  district  courts  for  said  district  shall  each  apjmint  a  deputy 
clerk  at  the  place  where  their  respective  courts  are  required  to  be  held 
in  the  division  of  the  district  in  which  such  clerk  shall  not  himself  reside, 
each  of  whom  shall,  in  the  absence  of  the  clerk,  exercise  all  the  powers 
and  perform  all  the  duties  of  clerk  within  the  division  for  which  he  shall 
be  appointed:  Provided,  That  the  appointment  of  such  deputies  shall  be 
'approved  by  the  court  for  which  they  shall  have  been  respectively  appointed, 
and  may  be  annulled  by  such  court  at  its  pleasure,  and  tlie  clerks  sliall  be 
responsible    for    the    official    acts    and    negligence    of   all    such    dcputie«."2  2 

[j]     Oklahoma,  Ohio,  South  Carolina  and  South  Dakota. 

In  Oklahoma  there  are  two  districts  and  the  act  provides  for  the  appoint- 
ment of  a  clerk  for  each  district  "who  shall  keep  his  office  at  Muscogee  and 
Guthrie,  respectively,  for  the  time  being."i 

The  statutes  providing  judicial  divisions  in  the  Ohio  districts  expressly 
declare  that  no  additional  circuit  or  district  court  clerks  shall  be  appointed. 3 

In  South  Carolina — "The  oftice  of  the  clerk  of  said  court  [the  circuit 
court]  shall  be  kept  in  the  cities  of  Charleston  and  of  Greenville,  and  the 
clerk  shall  reside  in  one  of  the  said  cities  and  shall  have  a  deputy  in  the 
other."'*  "The  office  of  the  clerk  of  the  district  court  shall  be  kept  in  the 
city  of  Greenville,  and  also  in  the  city  of  Charleston,  and  the  clerk  shall 
reside  in  one  of  said  cities,  and  shall  have  a  deputy  in  the  other.6 

In  South  Dakota  "the  clerk  of  the  circuit  court  and  the  clerk  of  the 
district  court  respectively  shall  reside  and  have  their  principal  office  at 
Sioux  Falls,  and  each  of  said  clerks  may  appoint  a  deputy  to  reside  and 
liave  an  office  at  Pierre  and  Deadwood.'. 

2iAct  March  3.   in05.  c.   14:57.   §  2.         ^Act  Apr.  26.  ISOO.  c.  165.  S  2,  2(; 

33  Stat.  1004,  U.  S.  Comp.  Stat.  1905.    Stat.  71,  U.   S.  Comp.  Stat.  1901,  p. 
p.  107.  408. 

22Act   June  251,   1000,  c.  3595.   §  6.         6Act    Apr.    26,    1890,    c.    165,    §    5. 

34  Stat.  010.  26  Stat.  72.  U.  S.  Comp.  Stat.   1901. 
i§  13.  act  June  16.  lOOO.  c.  .3335.  34    p.  409. 

Stat.  275.  7Act   Feb.  27.   ISW.  c.  21.   §  6.  2(i 

3Act  .Tune  S.   1S7S.  c.   IfiO.   §   2.  20    Stat.   15,  U.  S.  Comp.  Stat.  1901,  p. 
Stat.   102:    act   Feb.  4.    1880,  c.   18.   §    411. 
3,    21    Stat.    M.    U.    S.    Comp.    Stat. 
J901,  p.  402,  403. 

592 


I'lmodiiieJ  PARTICULAR    PROVISIONS    AS    TO    CLERKS.  §   569    [kj 

[k]     Tennessee. 

In  the  western  district  of  Tennessee  'the  clerks  of  the  circuit  and  dis 
trict  courts  for  said  district,  and  the  marshal  of  the  district,  shall  each 
appoint  a  deputy  of  their  respective  courts  at  the  place  in  the  eastern 
division  of  said  district  where  their  said  courts  are  required  to  be  held, 
who  shall,  in  the  absence  of  the  clerk,  exercise  all  the  powers  and  perform 
all  the  duties  of  clerk  within  said  division;  provided,  that  the  appointments 
of  such  deputies  shall  be  approved  by  the  court  for  which  they  shall  be 
respectively  appointed,  and  may  be  annulled  by  such  court  at  its  pleasure."- 
In  the  eastern  district  of  Tennessee  an  act  of  1880  respecting  terms  at 
Chattanooga,  provided  that  no  additional  clerk  or  marshal  be  appointed 
but  that  "the  clerks  of  the  district  and  circuit  courts  for  the  eastern 
district  of  Tennessee,  and  the  marshal  and  district  attorney  for  said  dis- 
trict, shall  perform  the  duties  appertaining  to  their  offices  respectively  for 
said  courts.  And  the  said  clerks  and  marshals  shall  each  appoint  a  deputv 
to  reside  and  keep  their  offices  in  the  city  of  Chattanooga,  and  who  shall. 
in  the  absence  of  their  principals,  do  and  perform  all  the  duties  appertain- 
ing to  their  offices  respectively."! o  And  an  act  of  1900  creating  a  north- 
eastern division  therein  provided  that  no  additional  clerk  or  marshal  be  ap 
pointed  but  that  "the  clerks  of  the  district  and  circuit  courts  for  th«' 
eastern  district  of  Tennessee,  and  the  marshal  and  district  attorney 
for  said  district,  shall  perform  the  duties  appertaining  to  their  offices, 
respectively,  for  said  courts  of  said  northeastern  division  judicial  dis- 
trict, and  except  when  court  is  in  session,  and  a  judge  present,  the 
clerk's  office  of  the  said  courts  may  be  at  Knoxville,  where  all  records 
for  said  courts  may  be  kept  as  of  the  same  court,  and  all  duties  per 
formed  as  though  the  clerk  were  at  Greeneville,  but  should,  in  the 
judgment  of  the  district  judge  and  the  clerk,  the  business  of  said 
courts  hereafter  warrant  the  employment  of  a  deputy  clerk  at  Greene 
ville,  Tennessee,  new  books  and  records,  may  be  opened  for  the  court- 
herein  created,  and  kept  at  Greeneville,  and  a  depxity  clerk  appointed  to 
reside  and  keep  his  office  at  Greeneville."ii  An  act  of  1906  respecting  the 
eastern  district  superseded  these  provisions  and  declared  that  "the  clerks 
of  said  circuit  and  district  courts  for  the  eastern  district  of  Tennessee  may 
reside  and  keep  their  offices,  respectively,  in  either  the  city  of  Knoxville, 
Chattanooga  or  Greenville;  but  said  clerks  shall  each,  respectively,  ap- 
point a  deputy  to  reside  and  keep  their  offices  in  each  of  the  above-named 
cities  other  than  the  one  in  which  said  clerks  shall  respectively  reside 
and  keep  their  offices;  that  the  said  deputy  clerks  shall,  in  the  absence 
of  their  principals,  do  and  perform  all  the  duties  appertaining  to  their 
offices,  respectively."!  2 

sAct   June    20.    1878,   c,   359,    §    1,        nAct   Feb.  7,   1900.  c.   10.   §   .1.  31 

20  Stat.  235.  U.  S.  Comp.  Stat.  1901,  Stat.   5.   U.   S.   Comp.   Stat.    1901,   p. 

p.  415.  419. 

lOAct  June  11.  ISSO.  c.  203.  §  4.  21         i2Act  June   18,   190G,  c,  3341,   §  3, 

Stat,  175,  r.  S.  Comp.  St^t.  1901.  p.  34  Stat.  298. 
416. 

Fed.  Proc— 38.  593 


§  569   [1]  CLERKS    OF    UNITED    STATES    COURTS.  [Code  Fed. 

LI]    Texas. 

In  the  northern  district  of  Texas,  an  act  of  1879  provided  that  "the 
district  judge  of  the  northern  district  shall  appoint  a  clerk  of  said  court, 
who  shall  reside  at  one  of  the  places  designated  in  this  act  for  holding  the 
courts,  and  two  deputies  shall  be  appointed  by  the  clerk,  one  of  whom  shall 
reside  at  each  of  the  other  places  designated  for  holding  the  courts. "i  a 
An  act  of  189G  provided  that  "there  shall  be  appointed  in  the  manner  re- 
(juired  by  law,  a  deputy  clerk  who  shall  keep  his  office  at  the  city  of  Fort 
Worth,"  and  also  one  each  for  Abilene  and  San  Angelo.i^  In  the  eastern 
Texas  district  an  act  of  1897  required  that  "the  clerks  of  the  circuit  and 
district  courts  for  said  district  shall  maintain  an  office  in  charge  of  them- 
selves or  a  deputy  at  .  .  .  Beaumont,  .  .  .  which  shall  be  kept  open 
at  all  times  for  the  transaction  of  the  business  of  said  division."i5  In 
1901  provision  was  made  for  the  Sherman  division  in  the  eastern  district 
and  it  was  declared  that  "the  clerk  of  the  circuit  court  of  said  eastern 
district  shall  maintain  an  office,  in  charge  of  himself  or  a  deputy,  at  the 
said  city  of  Sherman,  which  shall  be  kept  open  at  all  times  for  the  trans- 
action of  the  business  of  said  division;  and  the  district  judge  for  the  said 
eastern  district  shall  appoint  a  clerk  of  the  district  court  who  shall 
maintain  an  office  at  the  said  city  of  Sherman,  which  shall  be  kept 
open  at  all  times  for  the  transaction  of  the  business  of  said  division."i6 

An  act  of  1903  required  clerks  of  circuit  and  district  courts  to  maintain 
offices  at  Texarkana  for  the  Texarkana  division  "in  charge  of  themselves 
or  a  deputy,  which  shall  be  kept  open  at  all  times  for  the  transaction  of 
the  business  of  said  division. i^  In  the  western  district  of  Texas  an  act  of 
of  1884  creating  the  El  Paso  division  provided  that  a  deputy  clerk  be  ap- 
pointed in  the  manner  provided  by  law,  to  keep  his  office  in  El  Paso. is 
In  189fl  a  similar  statute  was  passed  for  a  Laredo  division  and  deputy. 1 9 
In  the  Del  Rio  division  the  respective  clerks  are  required  to  keep  an  office 
open  at  all  times  for  the  transaction  of  the  business  of  the  division,  in 
charge  of  themselves  or  a  deputy. 20  There  is  the  same  provision  for  the 
Victoria  division. 21  The  act  of  1902  creating  the  southern  district  of  Texas 
provides  that  "the  clerk  of  the  district  court  appointed  in  the  southern 
judicial  district  as  created  by  this  act  shall  reside  at  one  of  the  places  desig- 
nated therein  for  holding  courts,  and  such  clerk  shall  appoint  at  least  three 

isAct  Feb.  24,  1879,  c.  97,  §  9,  20  i^Act   Mar.   2,    1903.    c.    974.    §    4, 

Stat.   320,   U.    S.    Comp.    Stat.    1901,  32  Stat.  927,  U.  S.  Comp.  Stat.  1903, 

p.  426.  p.   75. 

i^Act   June   II,   1896,   c.   422,   §   4,  isAct  June  3.  1884.  c.  64.  §  3.  23 

29  Stat.  457,  U.  S.  Comp.  Stat.  1901,  Stat.  36,  U.  S.  Comp.  Stat.  1901,  p. 

p.  430.  428. 

i5Act  Feb.  8,  1897,  c.  178,  §  5.  29  iPAct  Mar    2.  1S99.  c.  393,  §  3,  30 

Stat.    516,   U.    S.    Comp.   Stat.    1901.  Stat.  1002,  U.  S.  Comp.  Stat.  1901.  p. 

p.  431.  432. 

i6Act   Feb.    19,   1901,   c.   382.    §    5.  20Act  June  9,  1900,  c.  3063,  §  4.  34 

as  amended  Mar.  3,  1901.  c.  881.  31  Stat.  226. 

Stat.   14.58,  U.   S.  Comp.   Stat.   1901,  21  Act  Apr.   18,  1906,  c.  1G36,   §  4, 

p.  434.  .34  Stat.  122. 

594 


Procedure]  TARTICULAR  PROVISIONS  AS  TO  CLERKS.  §   569   [n] 

deputies,  one  of  wliom  shall  reside  at  each  of  the  other  places  in  said  dis- 
trict designated  for  holding  courts  therein."i 

[m]     Utah. 

In  the  Utah  district  an  act  of  1897  provided  that  "the  clerks  of  the 
circuit  and  district  courts  for  said  district  shall  each  appoint  a  deputy 
clerk  at  each  of  the  places  where  their  respective  courts  are  required  to  be 
held  in  the  divisons  of  the  district,  except  in  the  division  in  which  such 
clerk  shall  himself  reside,  each  of  which  deputies  shall,  in  the  absence 
of  the  clerk,  exercise  all  the  powers  and  perform  all  the  duties  of  the 
clerk  within  the  di\ision  for  which  he  shall  be  appointed;  provided,  that 
the  appointment  of  such  deputies  shall  be  approved  by  the  court,  for  which 
they  shall  have  been  respectively  appointed,  and  may  be  annulled  by  such 
court  at  its  pleasure."2  The  act  of  1894  admitting  Utah  required  the 
clerks  of  the  circuit  and  district  courts  to  keep  their  offices  at  the  capital  of 
the  State.3 

[n]     Virginia. 

By  R.  S.  §  6224  it  was  provided  that  'in  the  western  district  of  Virginia 
the  circuit  and  district  judges  shall  appoint  four  clerks,  each  of  whom 
shall  be  clerks  both  of  the  circuit  and  district  courts  of  said  district. 
One  of  these  clerks  shall  reside  and  keep  his  office  at  Lynchburg,  another 
shall  reside  and  keep  his  office  at  Abingdon,  another  shall  reside  and  keep 
his  office  at  Danville,  and  the  fourth  shall  reside  and  keep  his  office  at 
Harrisonburgh,  in  said  district."  But  an  act  of  1902  provided  that  "in  the 
western  district  of  Virginia  the  clerk  of  the  circuit  and  district  courts 
at  Lynchburg  shall  appoint  two  deputy  clerks,  each  of  whom  shall  be  deputy 
clerk  both  of  the  circuit  and  district  courts,  and  one  of  whom  slmll  reside 
and  keep  his  office  in  the  city  of  Cliarlottesville,  and  the  other  in  the 
city  of  Roanoke,  for  the  purpose,  in  said  respective  cities,  of  taking  t-haige 
and  custodj'  of  the  court  records  and  papers,  attending  the  sessions  of  the 
said  courts,  issuing  all  proper  process,  and  discharging  all  the  clerical  duties 
in  connection  with  the  business  of  said  courts."5  By  an  act  of  1906  the  clerk 
at  Lynchburg  was  given  the  same  authority  to  appoint  a  clerk  at  Bigstone 
Cap.6  The  eastern  district  of  Virginia  is  regulated  by  an  act  of  1899  which 
provided  that  "within  and  for  the  eastern  district  of  Virginia,  there  shall 
be  only  one  clerk,  to  be  appointed  by  the  judge  of  the  district  court,  and 
said  clerk  may  have  as  many  deputies  as  may  be  necessary,  to  be  appointed 

lAct   Mar.   11,   1902.   c.   183,   §   16,  4U.  S.  Comp.  Stat.  1901.  p.  497. 

32  Stat.  69.  U.  S.  Comp.  Stat.  1903.  5 Act  June  .30.  1902,  c.  1339.  §  2.  32 

p.  73.  Stat.  552,  U.  S.  Comp.  Stat.  1903.  p. 

2 Act    Mar.    2,    1897.    c.    366.    §    4,  76. 

29  .Stat.  620,  U.  S.  Comp.  Stat.  1901,  «Act    June    28.    1906.    c.    3576.    34 

p.  4.35.  Stat.  547.  amending  act  Apr.  22.  1904, 

3 Act  July  16,  1894.  c.  138,  §  16,  28  c.  1421.  §  2.  33  Stat.  249,  U.  S.  Comp. 

Stat.  110,  U.  S.  Comip.  Stat.  1901,  p.  Stat.  1905,  p.  125. 
435. 

595 


§   r>G'.>    [oj  CLEKKS   OF    UNITED    STATES    COUUTS.  [Code   Fed. 

as   now    provided    by    law."'      The    statute    further    validated    the    acts    of 
persons  previously  acting  as  clerks  therein. 

[o]     Washington. 

An  act  of  1890  provided  that  "the  clerk  of  the  circuit  and  district  courts 
for  said  district  shall  each  appoint  a  deputy  clerk  at  the  place  where 
their  respective  courts  are  required  to  be  held  in  the  division  of  the 
district  in  which  such  clerk  shall  not  himself  reside,  each  of  whom  shall, 
in  the  absence  of  the  clerk,  exercise  all  the  powers  and  perform  all  the 
duties  of  the  clerk  w^ithin  the  division  for  which  lie  shall  be  appointed; 
provided,  that  the  appointment  of  such  deputies  shall  be  approved  by  the 
court  for  which  they  shall  have  been  respectiveh'  appointed,  and  may  be 
annulled  by  such  court  at  its  pleasure,  and  the  clerks  shall  be  responsiljlc 
for  the  official  acts  and  negligence  of  all  such  deputies. "9  In  1905  Wash- 
ington was  divided  into  two  districts  but  no  provision  as  to  residence  or 
appointment  of  deputy  clerks  was  made.  The  act  required  that  the  offices  of 
clerks,  marshals,  etc.,  in  each  district,  be  filled  "in  the  manner  provided 
by  law."  It  also  declared  that  "the  clerks  for  said  districts  shall  receive 
the  same  fees  and  emoluments  as  are  now  prescribed  by  law  for  the  clerks 
of  the  circuit  and  district  courts  of  the  northern  district  of  California."! o 

[p]     Wisconsin  and  Wyoming. 

By  R.  S.  §  623,11  U.  S.  Comp.  Stat.  1901,  p.  498,  "in  the  western 
district  of  Wisconsin  the  circuit  and  district  judges  shall  appoint 
two  clerks,  each  of  whom  shall  be  clerks  both  of  the  circuit  and  dis- 
trict courts  for  said  district.  One  shall  reside  and  keep  his  office  at 
Madison,  and  the  other  shall  reside  and  keep  his  office  at  La  Crosse." 
An  act  of  1900  providing  for  circuit  and  district  court  terms  at  Su- 
perior, declared  that  "the  clerk  of  the  United  States  circuit  and  district 
courts  at  Madison,  Wisconsin,  shall  be  the  clerk  of  the  United  States  cir- 
cuit and  district  courts,  at  Superior,  Wisconsin,  and  he  shall  appoint 
a  deput}^  clerk  of  said  courts  to  reside  at  Superior,  Wisconsin,  with  the 
usual  powers  of  a  deputy  clerk  in  such  cases,  whose  compensation  shall 
be  such  proportion  of  the  fees  accruing  from  business  done  in  the  said 
courts  at  Superior  as  shall  be  fixed  by  the  judge  of  said  western  district."i2 

The  act  organizing  the  Federal  courts  in  Wyoming  upon  its  admission 
as  a  State  provided  that  "clerks  shall  be  appointed  for  said  courts  [i. 
e.  the  circuit  and  district  coiu-ts]   in  the   district  of  Wyoming,  who  shall 

<Act  Mar.  3.  1899.  c.  452.  §  1.  30  lOAct  :\Iar.  2.  1905.  c.  1305.  §  6. 
Stat.  1368.  U.  S.  Comp.  Stat.  1901.  p.  33  Stat.  824.  U.  S.  Comp.  Stat.  1905, 
453.  p.  127. 

9Act   Apr.   5,   1890,   c.   65,   §   5.  26        nU.  S.  Comp.  Stat.  1901.  p.  498. 
Stat.  45,  U.  S.  Comp.  Stat.  1901,  p.        12 Act  Mav   26.   1900,   c.   591.   §   2, 
439.  31   Stat.  219,^  U.  S.  Comp.  Stat.  1901, 

p.   444. 
596 


.^rocednre]  OATH,    RKSIDENCE    AND    BOND.  §   572 

keep  their  offices  at  the  capital  of  the  State"  An  act  of  1892  requiring 
terms  of  circuit  and  district  courts  at  Evanston  declared  that  "the  mar- 
shal and  clerk  of  said  district  shall  each,  respectively,  appoint  at  least 
one  deputy,  to  reside  in  said  town  of  Evanston,  unless  he  himself  shall 
reside  there,  and  he  shall  also  maintain  an  office  at  that  place."i3 

§  570.     Oath  of  clerks. 

The  clerk  of  the  Supreme  Court,  and  every  clerk  and  deputy  clerk 
of  a  circuit  or  district  court,  shall,  before  he  enters  upon  the  exe- 
cution of  his  office,  take  an  oath  or  affirmation  in  the  following 

form :  "I,  A.  B.,  being  appointed  a  clerk  of ,  do  solemnly  swear 

(or  affirm)  that  I  will  truly  and  faithfully  enter  and  record  all  the 
orders,  decrees,  judgments  and  proceedings  of  the  said  court,  and 
that  I  will  faithfully  and  impartially  discharge  and  perform  all  the 
duties  of  my  said  office,  according  to  the  best  of  my  abilities  and 
understanding.  So  help  me  God."  The  words  "so  help  me  God" 
shall  be  omitted  in  all  cases  where  an  affirmation  is  admitted  instead 
of  an  oath. 

R.  S.  §  794,  U.  S.  Comp.  Stat.  1901,  p.  619. 

§  571.     Place  of  residence  of  circuit  and  district  court  clerks. 

Every  clerk  of  the  circuit  or  district  court  of  the  United  States 
.  .  .  shall  reside  permanently  in  the  district  where  his  official 
duties  are  to  be  performed,  and  shall  give  his  personal  attention 
thereto;  and  in  case  any  such  officer  shall  remove  from  his  district, 
or  shall  fail  to  give  personal  attention  to  the  duties  of  his  office, 
except  in  case  of  sickness,  such  office  shall  be  deemed  vacant: 
Provided,  That  in  the  southern  district  of  Xew  York  said  officers 
may  reside  within  twenty  miles  of  their  districts. 

§  2  of  act  June  20,  1874,  c.  328,  18  Stat.  109,  U.  S.  Comp.  Stat.  1901, 
p.  622. 

The  provision  applies  also  to  district  attorneysi*  and  marshals. is  The 
official  residence  of  such  officers  is  filed  by  the  Attorney  General.ie  In 
some  districts  there  are  special  provisions  as  to  place  of  residence.!" 

§  572.     Bond  of  circuit,  district  and  Supreme  Court  clerks. 

T!io  clerks  of  the  Supreme  Court  and  the  circuit  and  district 
courts,  respectively,  shall  each,  before  he  enters  upon  the  execution 

15  Post,  §  62.3. 

16 Ante.  §  507.     Post.  §  624. 

17  See  ante,  §  569,  notes. 

697 


13 Act    Mav    2.3. 

1892.    c.    77.    §    2. 

27  Stat.  39.  'U.  S. 

Comp.  Stat.  1901, 

p.  44.5. 

14 Ante,  §  506. 

§   573  CLERKS   OP    UNITED   STATES   COURTS.  [Code   Fed. 

of  his  office,  give  bonds,  with  sufficient  sureties,  to  be  approved  by 
the  court  for  which  he  is  appointed,  to  the  United  States,  in  the 
sum  of  not  less  than  five,  and  not  more  than  twenty  thousand  dol- 
lars, to  be  determined  and  regulated  by  the  Attorney  General  of  the 
United  States,  faithfully  to  discharge  the  duties  of  his  office,  and 
seasonably  to  record  the  decrees,  judgments  and  determinations  of 
the  court  of  which  he  is  clerk ;  and  it  shall  be  the  duty  of  the  district 
attorneys  of  the  United  States,  upon  requirement  by  the  Attorney 
General,  to  give  thirty  days'  notice  of  motion  in  their  several 
courts  that  new  bonds,  in  accordance  with  the  terms  of  this  act, 
are  required  to  be  executed;  and  upon  failure  of  any  clerk  to  exe- 
cute such  new  bonds,  his  office  shall  be  deemed  vacant.  The  At- 
torney General  may  at  any  time,  upon  like  notice,  through  the  dis- 
trict attorney,  require  a  bond  of  increased  amount,  in  his  discretion, 
from  any  of  said  clerks  within  the  limit  of  the  amount  above  speci- 
fied ;  and  the  failure  of  the  clerk  to  execute  the  same  shall  in  like 
manner  vacate  his  office.  All  bonds  given  by  the  clerks  shall,  after 
approval,  be  recorded  in  their  respective  offices,  and  copies  thereof 
from  the  records,  certified  by  the  clerks  respectively,  under  seal  of 
court,  shall  be  competent  evidence  in  any  court.  The  original  bond 
shall  be  field  in  the  Department  of  Justice. 

§  3,  act  Feb.  22,  1875,  c.  95,  18  Stat.  333,  U.  S.  Comp.  Stat.  1901,  p.  619. 

Conditions  added  to  the  bond  that  the  clerk  shall  faithfully  account  for 
all  moneys  or  that  he  shall  faithfully  perform  the  duties  of  his  office  by 
himself  or  by  his  deputies,  does  not  vitiate  it. is  The  fact  that  the 
custody  of  certain  money  is  not  a  part  of  the  clerk's  duties,  will  not  re- 
lease his  sureties. 19  A  clerk's  bond  is  available  to  a  private  suitor  to  in- 
demnify himself  on  failure  of  clerk  to  perform  his  duties, 20  although  the 
United  States  is  sole  obligee  thereon. 1 

§  573.     Bond  of  clerk  of  Court  of  Claims. 

The  chief  clerk  [of  the  Court  of  Claims]  shall  give  bond  to  the 
United  States  in  such  amount,  in  such  form,  and  with  such  security 
as  shall  be  approved  by  the  Secretary  of  the  Treasury. 
R.  S.   §  1055,  U.  S.  Comp.  Stat.  1901,  p.  731. 

This  section  is  from  an  act  of  1856.3 

isUnited  States  V.  Ambrose.  2  Fed.  lUnited  Slates  v.  Bell.  135  Fed. 
552.  336,  68  C.  C.  A.  144. 

I9ln  re  Finks,  41   Fed.  383.  3 Act    Aug.   6,   1856,   c.   Gl,   §    3,   U 

2ornited  States  v.   Bell.   127   Fed.    Stat.  30. 
1002.     See  Howard  v.  United  States, 
102  Fed.  77,  42  C.  C.  A.  169. 

598 


Procedure]  COMPENSATION  S   576 

§  574.     Bond  of  deputy  circuit  and  district  court  clerks. 

Any  circuit  or  district  court  may  require  any  deputy  clerk  there- 
of to  give  bond  to  the  United  States  for  the  faithful  discharge  of 
his  duty  as  such  deputy,  in  the  same  penalty,  and  with  surety  in  the 
same  manner,  as  is  required  by  law  of  clerks ;  and  such  bond  shall 
be  recorded  and  preserved  in  like  manner,  but  the  taking  of  such 
bond  shall  not  affect  the  legal  responsibility  of  the  clerk  for  the  acts 
of  such  deputy. 

R.  S.  §  796  U.  S.  Comp.  Stat.  1901,  p.  620. 

The  statute  creating  the  Owensboro  division  in  Kentucky  specifically 
provided  that  the  district  clerk  might  require  the  Owensboro  deputy  to 
give  bond  "to  himself,  with  surety  for  the  faithful  discharge  of  his  duties 
and  for  indemnity  in  case  of  breach,  on  which  actions  may  be  maintained 
in  said  district  court. "4 

§  575.     Increase  of  bond. 

Whenever  the  business  of  the  courts  in  any  judicial  district  shall 
make  it  necessary  in  the  opinion  of  the  Attorney  General,  for  the 
clerk  ...  to  furnish  greater  security  than  the  official  bond 
now  required  by  law,  a  bond  in  a  sum  not  to  exceed  forty  thousand 
dollars  shall  be  given  when  required  by  the  Attorney  General,  who 
shall  fix  the  amount  thereof. 

§  2,  act  Feb.  22,  1875,  e.  95,  18  Stat.  333,  U.  S.  Comp.  Stat.  1901,  p.  620. 

The  section  makes  similar  provision  as  to  marshals. 6 

§  576.     Compensation  of  Supreme  Court  clerk. 

The  clerk  of  the  Supreme  Court  of  the  United  States  shall  not 
hereafter  retain  of  the  fees  and  emoluments  of  his  office  for  his  per- 
sonal compensation  over  and  above  his  necessary  clerk-hire  and  the 
incidental  expenses  of  his  office,  certified  to  by  the  court,  or  bv  one 
of  its  justices  appointed  by  it  for  that  purpose,  and  to  be  audited 
and  allowed  by  the  proper  accounting  officers  of  the  Treasurv,  a 
sum  exceeding  six  thousand  dollars  a  year,  or  exceeding  that  rate 
for  any  time  less  than  a  year ;  and  the  surplus  of  such  fees  and 
emoluments  shall  be  paid  into  the  Treasury  as  provided  by  law 
in  cases  of  clerks  of  the  circuit  and  district  courts  of  the  United 
States :    And  provided  further,  That  so  much  of  section  three  of  the 

4 Act  Aug.  8,  1888.  c.  792.  §  3,  25 
Stat.  390.  U.  S.  Comp.  Stat.  1901, 
p.  360. 

6 Post,   §  628. 

599 


S   oil  CLEUKS    OF    UNITED    STATES    COURTS.  [Code   Fed. 

act  of  February  28,  1799,  as  rolatos  to  the  compensation  of  said  clerk 
for  his  attendance  in  the  court  is  hereby  repealed. 

From  appropriation  act,  Mar.   3,  1883,  c.   143,  §   1,  22   Stat.  631,  U.  S. 
Comp.  Stat.  inOl.  p.  650. 

It  is  the  duty  of  the  Supreme  Court  clerk  to  annually  acoount  and  pay 
over  surplus  fees. 8 

§  577.     Compensation  of  clerks  of  circuit  court  of  appeals. 

The  act  of  1891  establisliing  the  circuit  coui'ts  of  appeals  declared 
that  the  salary  of  the  clerk  "shall  be  three  thousand  dollai's  a  year, 
to  be  paid  in  eqnal  proportions  quarterly. "'^  The  act  further  pro- 
\ided  that  the  clerks  "shall  be  allowed  the  same  compensation  for 
their  respective  services  as  are  allowed  for  similai-  services  in  the 
existing  circuit  courts."^^  Since  1894  the  amount  of  fees  which 
such  clerks  have  been  allowed  to  retain  as  compensation  (in  addi- 
tion to  the  salary  of  $3,000),  has  been  restricted  to  .$.500. 
Author's  section. 

Tlie  two  provisions  of  the  act  of  1891  left  the  intent  of  Congress  in  some 
lioubt.  By  declaring  that  the  clerks  should  be  allowed  the  same  com- 
pensation as  clerks  of  the  circuit  courts.  Congress  did  not  intend  merely 
to  make  the  fees  chargeable  to  litigants  the  same  in  the  two  courts. n 
I'^ither  it  meant  to  give  a  salary  of  $3,000,  and  in  addition,  fees  up  to  a 
total  of  .$3,.500,  provided  the  same  were  earned;  or  else  to  give  a  total  com- 
pensation of  $3,500  if  at  least  $500  was  earned  in  fees. 12  The  matter  was 
set  at  rest  in  18JM  by  providing  that  the  clerks  might  retain  $500  by  way  of 
compensation,  from  fees  received,  in  addition  to  getting  the  salary  of 
.$3,000.13 

§  578.     Salary  of  clerk  of  Court  of  Claims  and  assistant. 

The  salary  of  the  chief  clerk  [of  the  Court  of  Claims]  shall  be 
three  thousand  dollars  a  year,  of  the  assistant  clerk,  two  thousand 
a  year,     .     .     .     payable  quarterly  from  the  Treasury. 

R.  S.  §  10.54,  U.  S.  Comp.  Stat.  1901,  p.  730. 

The  section  provides  also  for  the  salary  of  the  bailiff  and  messenger.is 

sPost,   §  ,587.  i2ibid. 

9§  2,  Act  Mar.  3,  1891.  c.  517,  26        i3Act   .July   31,    1894.   c.   174.     See 

Stat.    826,    U.    S.    Comp.    Stat.    1901,  post,   §  588. 'giving  the  provisions  of 

p.  547.  the  act  of  1900,  which  superseded  the 

If' Ibid.   §  9.  earlier  provision  of  1894. 

iiMorton  v.  United  States.  59  Fed.         isPost,  §  686. 
.351  :  United  States  v.  Morton,  65  Fed. 
204,  13  C.  C.  A.  151. 

600 


r-roeoilnie]  FEES   AND   COMPENSATION  §  580 

§  579.     General  provision  as  to  compensation  in  circuit  and  dis- 
trict court. 
ISTo  clerk  of  a  district  court,  or  clerk  of  a  circuit  court,  shall  be 
allowed  by  the  Attorney  General,  except  as  provided  in  the  next 
section,  and  in  section  eight  hundred  and  forty-two/'^  to  retain  of 
the  fees  and  emoluments  of  his  office,  or,  in  case  both  of  the  said 
clerkships  are  held  by  the  same  person,  of  the  fees  and  emoluments 
of  the  said  offices,  respectively,  for  his  personal  compensation,  over 
and  above  his  necessary  office  expenses,  including  necessary  clerk 
hire,  to  be  audited  and  allowed  by  the  proper  accounting  officers  of 
tlie  Treasury,  a  sum  exceeding  three  thousand  five  hundred  dollars  a 
year  for  any  such  district  clerk  or  for  any  such  circuit  clerk,  or  ex- 
ceeding that  rate  for  any  time  less  than  a  year. 
R.  S.  §  83!).  U.  S.  Comp.  Stat.  1901,  p.  645. 

By  R.  S.  844,18  surplus  fees  are  required  to  be  paid  into  the  Treasury. 
Fees  belong  to  the  clerks  only  to  the  limit  of  the  maximum  of  their  om- 
pensation,  and  wlien  sucli  limit  is  exceeded  they  belong  to  the  government. i-' 
In  revenue  cases,  the  government  being  successful,  the  clerk  may  retain  his 
fees  out  of  moneys  collected  as  in  other  cases.20  The  compensation  of  tlie 
clerk  under  the  above  provision  is  not  a  fixed  compensation  within  the 
meaning  of  an  act  of  18941  forbidding  any  officer  having  an  annual  salary 
amounting  to  twenty-five  hundred  dollars  to  hold  any  other  compensatory 
office. 2  "Necessary  office  expenses"  include  office  rent  with  interest, 3  rea- 
sonable binding  and  express  charges. 4  But  hotel  expenses  while  the 
court  is  held  at  a  place  other  than  where  the  clerk  is  required  to  keep  office 
are  not  witliin  the  meaning  of  the  term. 5 

§  580.  —  fees  and  compensation  in  California,  Oregon  and  Ne- 
vada. 

The  clerks  of  the  several  circuit  and  district  courts  in  California, 
Oregon  and  Xevada  shall  be  entitled  to  charge  and  receive  double 
the  fees  hereinbefore  allowed  to  clerks,  and  shall  be  allowed,  re- 
spectively, by  the  Attorney  General,  to  retain  of  the  fees  so  received 
by  them,  for  their  personal  compensation,  over  and  above  the  nec- 
essary expenses  of  their  offices,  including  the  salaries  of  deputy 
clerks,  and  necessary  clerk  hire,  to  be  audited  by  the  proper  ac- 

ifPost.   §§   .580.   ,581.  sUnited    States    v.    Durlaclier.    G^i 

18 See  post.  §  501.  Fed.  G72. 

i9United  States  v.  Woltors,  51  Fed.  si'nited     Stntes     v.      Cogswell.     3 

899.  Sumn.    2W.    Fed.    Cas.    Xo.    14.8'25. 

2oSee   in    re   I'niteil    States  v.    Ci-  ■•Cavender    v.    Cavender,     10     Fed. 

g!\rs.  2  Fed.  494.  828. 

lAct  .Fuly  .30.   1894.  ^United     States     v.     Gorhaiii.     6 

601 


1  581  CLERKS   OF    UNITED   STATES    COURTS.  [Code  Fed. 

counting  officers  of  the  Treasury  Department,  any  sum  not  exceed- 
ing seven  thousand  dollars  a  year,  not  exceeding  that  rate  for  any 
times  less  than  a  year :  Provided,  that  whenever,  in  either  of  the  said 
districts,  the  same  person  holds  the  office  of  clerk  of  both  the  circuit 
and  district  courts,  he  shall  be  allowed  by  the  Attorney  General  to 
rettain  for  his  personal  compensation,  as  aforesaid,  only  such  sum 
as  herein  allowed  to  be  retained  by  a  person  holding  the  office  of 
•clerk  of  only  one  of  the  said  courts. 

R.  S.  §  840,  U.  S.  Ckimp.  Stat.  1901,  p.  646. 

§  581.  —  additional  compensation  in  prize  cases. 

Clerks  .  .  .  may  be  allowed  to  retain,  for  all  official  services 
in  prize  causes,  an  additional  compensation  not  exceeding  in  amount 
one-half  of  the  maximum  compensation  allowed  to  them,  respec- 
tively, by  the  three  preceding  sections. 

R.  S.  §  842,  U.  S.  Comp.  Stat.  1901,  p.  646. 

This  section  was  enacted  in  18G4.7  It  includes  marshals  also,  but  its 
application  to  such  officers  is  superseded  by  an  act  of  1896  providing  for 
the   payment  to  them   of  salaries.* 

§  582.     Compensation  in  each  year  must  be  from  fees  thereof. 

The   allowances   for   personal  compensation  of     .     .     .     clerks 
.     .     ,     for  each  calendar  year,  shall  be  made  from  the  fees  and 
•emoluments  of  that  year,  and  not  otherwise. 
R.   S.   §    843,  U.   S.   Comp.   Stat.   1901,  p.   646. 

This  section  also  includes  district  attorneys^  and  marshals,  but  it  ap- 
parently no  longer  applies  to  the  latter  since  such  officer  is  paid  salary  in 
lieu    of  fees, 10  nor  to  the  former  except  in  the  District  of  Columbia. 

§  583.     Clerks  not  to  charge  unearned  fees. 

It  shall  be  unlawful  for  any  clerk  of  any  court  of  the  United 
States  to  include  in  his  emolument,  account,  or  return  any  fee  or 
fees  not  actually  earned  and  due  at  the  time  such  account  or  re- 
turn is  required  by  law  to  be  made,  and  no  fees  not  actually  earned 
shall  be  allowed  in  any  such  account. 

From   appropriation   act   of  Mar.   2,   1895,   c.   189,   28   Stat.  910,  U.  S. 
Comp.  Stat.  1901,  p.  642. 

Blatcbf.  530.  Fed.  Cas.  No.  15,235.  sPost,  §  633. 

7Act  June  30,  1864,  c.  174,  §  19,  13  sAnte.  §  50na  and  note. 

•Stat.  312.  loPost,  §  633. 

602 


Tiocedure]  SALARIES  OF    DEPUTIES.  §  585 

§  584.  No  allowance  for  rule  days,  nor  double  allowance  whei 
both  courts  in  session. 
iSTo  per  diem  or  other  allowance  shall  be  made  to  any  .  .  . 
•clerk  of  a  circuit  court,  clerk  of  a  district  court,  .  .  .  for  at- 
tendance at  rule  days  of  a  circuit  or  district  court;  and  when  the 
circuit  and  district  courts  sit  at  the  same  time  no  greater  per  dieiu 
or  other  allowance  shall  be  made  to  any  such  officer  than  for  an  at- 
tendance on  one  court. 

R.  S.  §  831,  U.  S.  Comp.  Stat.  1901,  p.  640. 

This  provision  was  enacted  in  1853.12  It  is  made  applicable  also  to  mar- 
shals and  deputy  marshals  and  district  attorneys,  but  since  an  act  of  1896 
such  officers  are  paid  by  fixed  salary  instead  of  fees,  except  in  the  case  o: 
■district  attorneys  for  the  District  of  Columbia.13 

§  5841/2-     No  per  diem  except  when  court  opens. 

[Xo]  part  of  any  money  appropriated  [shall]  be  used  in  pavment 
of  a  per  dZi cm  compensation  to  any  .  .  .  clerk  .  .  .  for  at- 
tendance in  court  except  for  days  when  the  court  is  open  by  the 
judge  for  business  or  business  is  actually  transacted  in  court,  and 
when  they  attend  under  section  five  hundred  and  eighty-tliree,  five 
hundred  and  eighty-four,  six  hundred  and  seventy-one,  six  hundrel 
and  seventy-two,  and  two  thousand  and  thirteen  of  the  Eevised  Stat- 
utes, which  fact  shall  be  certified  in  the  approval  of  their  accounts. 

From   appropriation  act   of   Mar.   3,    1887,   c.   362,   24  Stat.  541,  U.   S. 
Comp.  Stat.  1901,  p.  641. 

The  above  provision  also  specifies  marshals,  as  to  whom  it  is  saiperseded 
by  the  law  placing  them  on  a  salary  basis,i*  and  district  attorneys,  as  to 
whom  it  is  also  superseded  except  in  the  case  of  the  District  of  Ck)lumbia.ia 

§  585.     Salaries  of  deputy  circuit  clerks  paid  by  clerks  and  al- 
lowed as  expenses. 

The  compensations  of  deputies  of  clerks  of  the  circuit  courts 
•shall  be  paid  by  the  clerks,  respectively,  and  allowed  in  the  same 
manner  that  other  expenses  of  the  clerks'  offices  are  paid  and  al- 
lowed. 

R.  S.  §  626,  V.  S.  Comp.  Stat.  1901,  p.  499. 

l2Act  Feb.  26,   1853,  c.  80.  §  3.  10  i^Post,  §§  633.  6.34, 

:Stat.   107.  15 Ante.  §§  509,  510. 
ispost,  §  633,  ante,  §  509. 

603 


5   rise  CLERKS   OF    UNITED   STATES   COURTS.  [Code   Fed. 

This  provision  is  tal'Cen  from  an  act  of  1872.1  c  As  to  allowance  and 
jiayment  of  expenses  of  the  clerk's  office  see  post.  §  589.  ante,  §§  448  et  seq. 

§  586.     Salaries  of  deputy  district  clerks  paid  by  clerks  and  al- 
lowed as  expenses. 

The  compensation  of  deputies  of  the  clerks  of  the  district  coiiits 
shall  be  paid  by  the  clerks,  respectively,  and  allowed  in  the  same 
manner  that  other  expenses  of  the  clerks  offices  are  paid  and  allowed. 
R.  S.  §  561,  U.  S.  Comp.  Stat.  1901,  p.  454. 

From  an  act  of  1872.18     See  note  to  previous  section. 

§  587.     Duty  of  Supreme  Court  clerk  to  account  and  pay  over 
surplus  fees. 

The  clerk  of  the  Supreme  Court  of  the  United  States,  on  the  fii-st 
<hiy  of  January  in  each  year,  or  within  thirty  days  thereafter,  shall, 
cm  a  form  prescribed  by  the  Attorney  General,  make  to  the  Attorney 
(ieneral  a  return,  under  oath,  of  all  fees  and  costs  collected  by  him 
in  cases  disposed  of  at  the  preceding  term  or  terms  of  the  court,  and 
of  all  emoluments  hereafter  collected  by  him,  and  after  dednetinij;- 
from  such  collections  his  compensation  as  provided  in  paragraph 
nine  of  tlie  act  of  March  3,  1883  (Twenty-second  Statutes  at  Large, 
six  hundred  and  three,  six  hundred  and  thirty-one),  and  the  in- 
cidental expenses  of  his  office,  including  clerk  hire,  such  expenses 
to  be  certified  by  the  chief  justice,  and  audited  and  allowed  by  the 
proper  accounting  officers  of  the  Treasury,  shall  at  the  time  of  mak- 
ing such  returns  pay  any  surplus  that  may  remain  into  the  Treasury 
of  the  United  States. 

Part  of  §  8.  act  Mar.  15,  1808.  c.  68,  30  Stat.  317.  U.  S.  Comp.  Stat. 
1901,  p.  651. 

The  section  provides  also  that  naturalization  fees  sliall  be  included 
in  the  return  of  all  clerks. 20  The  section  also  provides  for  the  repeal  of 
any  laws  or  parts  of  laws  in  conflict  therewith. 

§  588.     Duty  of  circuit  courts  of  appeals  clerks  to  account  and 
pay  over  surplus  fees. 

Clerks  of  the  United  States  circuit  courts  of  appeals,  annually 
and  within  thirty  days  after  the  thirtieth  day  of  June  in  each  year, 
shall  make  a  return  to  the  Attorney  General  of  the  United  States  of 

i6Act  June  8,  1872,  c.  336,  17  Stat.  i^'Act  June  8.  1872,  c.  336,  17  Stat. 
330.  330. 

20  Post.  §  590. 
604 


Piocetluie]  DUTY    TO    ACCOUNT.  Si   589 

all  the  fees  and  emoluments  of  their  offices  respectively.  Such  re- 
turn shall  cover  all  fees  and  emoluments  earned  during  the  preced- 
ing year  and  also  the  necessary  office  expenses  for  such  year  includ- 
ing clerk  hire,  the  compensation  of  the  clerk  not  to  exceed  five  hun- 
dred dollars  per  annum  as  now  provided  by  law.  Such  expenses  in- 
cluding clerk  hire  shall  be  certified  by  the  senior  circuit  judge  of  the 
])roper  circuit,  and  audited  and  allowed  by  the  proper  accounting 
officers  of  the  Treasury  Department.  The  respective  clerks  of  the 
circuit  courts  of  appeals,  after  deducting  such  expenses  and  clerk 
hire,  shall,  at  the  time  of  making  such  returns,  pay  into  the  Treasury 
oi  the  United  States  the  balance  of  such  fees  and  emoluments. 
In  case  the  amounts  claimed  for  such  expenses  and  clerk  hire 
liave  not  been  audited  by  such  accounting  officers  prior  to  the  time 
fixed  for  making  such  returns  and  payment,  said  clerks  may  retain 
the  sums  claimed  by  them  respectively  until  the  audit  is  made,  and 
in  case  any  sum  so  claimed  and  retained  is  not  allowed,  the  amount 
disallowed  shall,  within  ten  days  after  notice  of  disallowance,  be 
paid  into  the  Treasury  of  the  United  States. 

Part  of  §  1,  act  June  6,  1900,  c.  791,  31  Stat.  639,  U.  S.  Comp.  Stat. 
1001,  p.  651. 

The  prior  provision  of  the  act  of  1894  required  the  return  to  be  to 
the  Seci-etary  of  the  Treasury.2i 

§  589.     Circuit  and  district  clerks  to   account  semiannually  as 
to  fees. 

Each  clerk  of  the  district  and  circuit  courts  shall,  on  the  first 
days  of  January  and  July  of  each  year,  or  within  thirty  days  there- 
after, make  to  the  Attorney  General,  in  such  form  as  he  may  pre- 
scribe, written  returns  for  the  half  year  ending  on  said  days,  re- 
spectively, of  all  fees  and  emoluments  of  his  office  of  every  name 
and  character,  and  of  all  necessary  expenses  of  his  office,  including 
necessary  clerk  hire,  together  with  the  vouchers  for  the  payment  of 
the  same  for  such  last  half  year ;  and  the  word  "emoluments"  shall 
b(^  understod  as  including  all  amounts  received  in  connection  with 
the  admission  of  attorneys  to  practice  in  the  court,  all  amounts  re- 
ceived for  services  in  naturalization  proceedings,  whetlier  rendered 
as  clerk,  as  commissioner,  or  in  any  other  capacity,  and  all  other 
amounts  received  for  services  in  any  way  connected  with  the  clerk's 
office. 

21  Act    Julv    31.    1894.   c.    174.   §   1, 
28  Stat.  203.     See  ante,  §  577,  note. 

605 


§   590  CLERKS   OF    UNITED    STATES    COURTS.  [Code  Ftnl.. 

Part  of   §    1,   act   June   28,   1902,   c.   1301,   32   Stat.   475,   U.   S.   Comp.. 
Stat.  1905,  p.  160. 

The  section  also  contains  a  proviso  that  no  amount  in  excess  of  one  dol- 
lar shall  be  received  from  any  attorney  in  connection  with  his  admission  to 
practice  in  the  circuit  and  district  court. i  Tn  the  appropriation  act  of 
19002  there  is  a  further  provision  requiring  an  accounting  of  money  de- 
posited as  security,  collected  on  behalf  of  the  United  States,  etc.,  whicli 
being  later  supersedes  this  provision  so  far  as  covering  the  same  subject 
matter. 

§  590.     Naturalization  fees  and  return  thereof  to  bureau. 

The  provision  of  the  act  of  1898^  for  return  of  naturalization  fees 
in  the  same  manner  as  other  fees,  was  superseded  by  tlie  naturaliza- 
tion act  of  1906,  the  requirements  of  which  in  this  respect,  are  given 
elsewhere.^ 

Author's  section. 

§  591.     Surplus  fees  to  be  paid  into  Treasury. 

Every  .  .  .  clerk  .  .  .  shall,  at  the  time  of  making  his 
half-yearly  return  to  the  Attorney  General,  pay  into  th."  'J'reasiir\. 
or  deposit  to  the  credit  of  the  Treasurer,  as  he  may  be  directed  by 
the  Attorney  General,  any  surplus  of  the  fees  and  emoluments  of 
his  office,  which  said  return  shows  to  exist  over  and  above  the  com- 
pensation and  allowances  authorized  by  law  to  be  retained  by  him. 
R.  S.  §  844,  U.  S.  Comp.  Stat.  1901,  p.  647. 

The  section  specifies  also  district  attorneys  and  marshals,  but  except 
in  the  case  of  the  district  attorney  for  the  District  of  Columbia,  it  in> 
longer  applies  to  such  officers,  payment  being  made  by  them  to  the  clerk 
of  the  court. 0  This  section  is  not  a  revenue  law  Avithin  the  meaning  of  R. 
S.  §  699,  providing  for  a  writ  of  error  without  regard  to  the  value  in  dis- 
pute upon  a  judgment  in  a  civil  action  for  enforcement  of  a  revenue  law.c 

§  592.     Auditing  of  returns  which  may  show  a  surplus. 

In  every  case  where  the  return  of  a  .  .  .  clerk.  .  .  . 
shows  that  a  surplus  may  exist,  the  Attorney  General  shall  cause 
such  returns  to  be  carefully  examined,  and  the  accounts  of  dis- 

iPost  §  711.  4§   13,  act  June  29,  1906.  e.  3592. 

2  See  Post,  §  606.  34  Stat.  600,  601.     See  post,  §   752, 

3§   8,  act  Mar.   15,   1898,  c.   68,  30  et   seq. 

Stat.  317,  U.  S.  Comp.  Stat.  1901,  p.  spost,   §  745. 

651.     See  Cnited  States  v.  McMillan.  eUnited   States  v.   Hill,   123  U.   S. 

165  r.  S.  517,  41  L.  ed.  810,  17  Sup.  681,  31  L.  ed.   275,  8  Sup.   Ct.   Rep. 

Ct.  Rep.  395.  308. 

606 


iTocedure]  DUTY    TO    ACCOUNT.  §  595' 

bursements  to  be  regularly  audited  by  the  proper  officer  of  liis  De- 
partment, and  an  account  to  be  opened  with  such  officer  in  proper 
books  to  be  provided  for  that  purpose, 

R.  S.  §  845,  U.  S.  Comp.  Stat.  1901,  p.  647. 
The  section  specifies  district  attorneys  and  marshals  also. 

§  593.     Court  of  Claims  clerk  to  report  as  to  judgments  ren- 
dered and  decisions  of  court. 

On  the  first  day  of  every  December  session  of  Congress,  the  clerk 
of  the  Court  of  Claims  shall  transmit  to  Congress  a  full  and  com- 
plete statement  of  all  the  judgments  rendered  by  the  court  during 
the  previous  year,  stating  the  amounts  thereof,  and  the  parties  in 
whose  favor  they  were  rendered,  together  with  a  brief  synopsis  of 
the  nature  of  the  claims  upon  which  they  were  rendered.  And  at 
the  end  of  every  term  of  the  court  he  shall  transmit  a  copy  of  its  de- 
cisions to  the  heads  of  departments;  to  the  solicitor,  the  comptrol- 
lers, and  the  auditors  of  the  Treasury;  to  the  commissioners  of  the 
general  land  office  and  of  Indian  affairs;  to  the  chiefs  of  bureaus, 
and  to  other  officers  charged  with  the  adjustment  of  claims  against 
the  United  States. 

R.  S.  §  1057,  U.  S.  Comp.  Stat.  1901,  p.  731. 

§  594.     Power  of  Court  of  Claims  clerk  to  disburse  funds — set- 
tlement of  accounts. 

The  said  clerk  [of  the  Court  of  Claims]  shall  have  authority, 
when  he  has  given  bond  as  provided  in  the  preceding  section,  to 
disburse,  under  the  direction  of  the  court,  the  contingent  fund  which 
may  from  time  to  time  be  appropriated  for  its  use ;  and  his  accounts- 
shall  be  settled  by  the  proper  accounting  officers  of  the  Treasury  in 
the  same  way  as  the  accounts  of  otlier  disbursing  agents  of  the  gov- 
ernment are  settled. 

R.  S.  §   1056,  U.  S.  Comp.  Stat.  1901,  p.  731. 

§  595.     Duty  of  clerks  to  account  to  court  for  moneys  deposited 
in  causes  during  term. 
At  each  regular  session  of  any  court  of  the  United  States,  the 
clerk  shall  present  to  the  court  an  account  of  all  moneys  remain- 
ing therein,  or  subject  to  its  order,  stating  in  detail  in  what  causes 
they  were  deposited,  and  in  what  causes  payments  have  been  made; 
and  said  account  and  the  vouchers  thereof  sliall  be  filed  in  the  court. 
R.  S.  §  798,  U.  S.  Comp.  Stat.  1901,  p.  621. 

607 


§  596  CLERKS   OF   UNITED    STATES    COUKTS.  [Code   Fed. 

§  596.     Circuit  and  district  clerks  to  report  to  Treasury  judg- 
ments in  cases  where  United  States  are  parties. 
Every  clerk  of   a  circuit  or  district  court   shall,   within   thirty 
days  after  the  adjournment  of  each  terra  thereof,  forward  to  the 
Solicitor  of  the  Treasury  a  list  of  all  judgments  and  tlecrees,  to 
whicli  the  United  States  are  parties,  which  have  been  entered  in  said 
courts,  respectively,  during  such  term,  showing  the  amount  adjudged 
or  decreed,  in  each  case,  for  or  against  the  United  States,  and  the 
term  to  which  execution  thereon  will  be  returnable. 
R.  S.  §  797,  U.  S.  Comp.  Stat.  190L  p.  620. 

In  1879  the  section  was  amended  by  the  addition  of  a  provision  re(iuiring 
the  clerk  to  make  out  a  report  to  the  internal  revenue  commissioner 
-and  prescribing  its  contents. s 

§  597.     Duty  as  to  restoration  of  records  and  compensation  there- 
for. 

Judges  [of  United  States  courts]  may  direct  the  performance, 
by  the  clerks  of  said  courts  [of  the  United  States]  respectively  .  .  . 
of  any  duties  ino'dent  thereto  [i.  e.  incident  to  the  restoration  of 
lecords  lost  or  destroyed,  in  which  the  United  States  are  interested]  ; 
and  said  clerks  .  .  .  shall  be  allowed  such  compensation  for 
services  in  the  matter  and  for  lawful  disbursements  as  may  be  ap- 
proved by  the  Attorney  General  of  the  United  States,  upon  a  cer- 
tificate by  the  judges  of  said  courts  stating  that  such  claim  for 
services  and  disbursements  is  just  and  reasonable;  and  the  sum  so 
allowed  shall  be  paid  out  of  the  judiciary  fund. 
Part  of  R.  S.  §  904,  U.  S.  Comp.  Stat.  1901,  p.  677. 

§  598.     Removal  of  clerk  failing  to  report,  etc., — appointment  of 
successor. 

If  any  clerk  of  any  district  or  circuit  court  of  the  United  .States 
shall  wilfully  refuse  or  neglect  to  make  any  report,  certificate, 
statement  or  other  document  required  by  law  to  be  by  him  made, 
or  sliall  wilfully  refuse  or  neglect  to  forward  any  such  report,  cer- 
tificate, statement  or  document  to  tlie  department,  officer  oi-  person 
to  whom,  by  law,  the  same  should  be  forwarded,  the  President  of 
the  United  States  is  empowered,  and  it  is  hereby  made  his  duty,  in 
every  such  case,  to  remove  such  clerk  so  offending  from  office,  by  an 
order  in  writing  for  that  purpose.     And  upon  the  presentation  of 

«Post,  §  60.3. 

608 


Procedure]  PUNISHMENT   FOR    FAILING  TO  REPORT,  ETC.  §   600 

such  order,  or  a  copy  thereof,  authenticated  by  the  Attorney  General 
of  the  United  States,  to  the  judge  of  the  court  whereof  such  of- 
fender is  clerk,  such  clerk  shall  thereupon  be  deemed  to  bo  out  of 
office,  and  shall  not  exercise  the  functions  thereof.  And  such  (ii>- 
trict  judge,  in  the  case  of  the  clerk  of  a  district  court,  shall  ap- 
point a  successor ;  and  in  the  case  of  the  clerk  of  a  circuit  court, 
the  circuit  judge  shall  appoint  a  successor.  And  such  person  so  re- 
moved shall  not  be  eligible  to  any  appointment  as  clerk  or  deputy 
clerk  for  the  period  of  two  years  next  after  such  removal. 

§  5,  act  Feb.  22,  1875,  c.  9.5.  18  Stat.  334,  U.  S.  Comp.  Stat.  1901,  p.  621. 

§  599.     Criminal  punishment  of  clerk  failing-  to  report. 

If  any  clerk  mentioned  in  the  preceding  section^''  shall  wilfully 
refuse  or  neglect  to  make  or  to  forward  any  such  report,  c-?rtificate, 
statement  or  document  therein  mentioned,  he  shall  be  deemed  guilty 
of  a  misdemeanor,  and  shall  be  punished  by  a  fine  not  exceeding 
one  thousand  dollars,  or  by  imprisonment  not  exceeding  one  year, 
in  the  discretion  of  the  court;  but  a  conviction  under  this  section 
shall  not  be  necessary  as  a  condition  precedent  to  the  removal  from 
office  provided  for  in  this  act. 

§  6,  act  Feb.  22,  1875,  c.  95,  18  Stat.  3.3^.  U.  S.  Comp.  Stat.  1901,  p.  622. 

§  600.     Punishment  for  failing  to  deposit  moneys  in  registry. 

Every  clerk  of  other  officer  of  a  court  of  the  United  States,  who 
fails  forthwith  to  deposit  any  money  belonging  in  the  registry  of 
the  court,  or  hereafter  paid  into  court  or  received  by  the  officer.^ 
thereof,  with  the  Treasurer,  assistant  treasurer,  of  a  designated  de- 
positary of  the  United  States,  in  the  name  and  to  the  credit  of  such 
court,  or  who  retains  or  converts  to  his  own  use  or  to  tlie  use  of 
another  any  such  money,  is  guilty  of  embezzlement  and  sliall  be 
punished  by  fine  not  less  than  five  hundred  dollars,  and  not  more 
than  the  amount  embezzled,  or  by  imprisonment  not  less  than  one 
year  nor  more  than  ten  years,  or  by  both  such  fine  and  imprison- 
ment ;  but  nothing  herein  shall  be  held  to  prevent  the  delivery  of 
any  such  money  upon  security,  according  to  agreement,  of  parties 
under  the  direction  of  the  court. 

R.   S.   §   5504,  as   amended   Feb.   18,   1875,   18   Stat.   320,  U.   S.   Comp. 
Stat.  1901,  p.  3710. 

lOAnte,   §  .598. 
Fed.  Proc— 39.  609 


S  601  CLERKS   OF   UNITED   STATES   COURTS.  [Code   Fed. 

By  R.  S.  §§  3616,  3617,ii  it  is  the  duty  of  marshals,  district  attorneys, 
clerks  etc.,  to  pay  moneys  received  into  a  United  States  depositary  with- 
out deduction.  Persons  receiving  money  which  ought  to  have  been  deposited 
are  guilty  of  embezzlement.12 

§  601.     Power  of  clerks  to  administer  oaths. 

All  clerks  and  all  deputy  clerks  of  United  States  courts  are  here- 
by authorized  to  administer  oaths. 

Part  of   §    1,   act  Mar.  2,  1901,  c.  514,  31    Stat.  956,   amending   §    19, 
act  May  28,  1896,  c.  252,  U.  S.  Comp.  Stat.  1901,  p.  499. 

The  above  provision  specifies  also  United  States  commissioners.! 3 

§  602.  — power  to  administer  oaths  in  admiralty  cases. 

The  clerks  of  tlie  district  and  circuit  courts  may,  in  the  absence 
or  in  case  of  the  disability  of  the  judges,  administer  oaths  to  all 
persons  identifying  papers  found  on  board  of  vessels  or  elsewhere, 
to  be  used  on  trials  in  admiralty  causes. 
R.  S.  §  799,  U.  S.  Comp.  Stat.  1901,  p.  622. 

This  provision   was   carried   into   the  Revised   Statutes   from   an   act  of 
1792.14 

§  603.     Circuit  or  district  court  clerk  not  to  act  as  receiver  or 
master. 

No  clerk  of  the  district  or  circuit  courts  of  the  United  States, 

or  their  deputies  shall  be  appointed  a  receiver  or  a  master  in  any 

case  except  where  the  judge  of  said  court  shall  determine  that  special 

reasons  exist  therefor  to  be  assigned  in  the  order  of  appointment. 

Act  Mar.  3,  1879,  c.  183,  20  Stat.  415,  U.  S.  Comp.  Stat.  1901,  p.  591. 

The  appointment  of  a  clerk  as  master  without  special  reason,  although 
irregular,  makes  such  officer  a  de  facto  incumbent,  and  he  cannot  be  ousted 
in  a  collateral  proceeding.  1 6 

§  604.     Duty  to  be  in  office  on  first  Mondays,  for  equity  cases. 

The  clerk's  office  shall  be  open,  and  the  clerk  shall  be  in  attend- 
ance therein,  on  the  first  Monday  of  every  month,  for  the  purpose 
of  receiving,  entering,  entertaining  and  disposing  of  all  motions, 
rules,  orders  and  other  proceedings,  which  are  grantable  of  course, 
and  applied  for,  or  had  by  the  parties,  or  their  solicitors,  in  all 

iiU.  S.  Comp.  Stat.  1901,  p.  2413.        i^Act  May  8,  1792,  c.  36,   §   10,  1 
12R.  S.   §  5505,  U.  S.  Comp.  Stat.    Stat.  278. 
1901,  p.  3711.  isNorthwestern,  etc.  Co.  v.  Seaman, 

isPost,  §  676.  80  Fed.  357. 

610 


Procedure]  REPORTS  AND  ACCOUNTS.  §  606 

causes  pending  in  equity,  in  pursuance  of  the  rules  hereby  pre- 
scribed. 

Equity  rule  2,  promulgated  October  term,  1842.18 

§  605.  —  to  report  moneys  paid  in  revenue  cases. 

Every  clerk  of  a  circuit  or  district  court  ,  .  .  shall  .  .  . 
at  the  close  of  each  quarter,  or  within  ten  days  thereafter,  report  to 
the  Commissioner  of  Internal  Eevenue  all  moneys  paid  into  court 
on  account  of  cases  arising  under  the  internal  revenue  laws,  as  well 
as  all  moneys  paid  on  suits  on  bonds  of  collectors  of  internal  rev- 
enue. The  report  shall  show  the  name  and  nature  of  each  case,  the 
date  of  payment  into  court,  the  amount  paid  on  account  of  debt,  tax 
or  penalty,  and  also  the  amount  on  account  of  costs.  If  such  money, 
or  any  portion  thereof,  has  been  paid  by  the  clerk  to  any  internal 
revenue  officer  or  other  person,  the  report  shall  show  to  whom  each 
of  such  payments  was  made;  and  if  to  an  internal  revenue  officer, 
it  shall  be  accompanied  by  the  receipt  of  such  officer. 

R.  S.  §  797,  as  amended  Mar.  1,  1879,  c.  125,  §  2,  20  Stat.  327,  U.  S. 
Comp.  Stat.  1901,  p.  621. 

§  606.     Attorney  General  to  require  clerks  to  account  for  mon- 
eys— docket  books. 

The  Attorney  General  shall  hereafter,  under  rules  and  regula- 
tions prescribed  by  him,  require  the  clerks  of  the  United  States 
circuit  and  district  courts,  clerks  of  the  Territorial  courts,  clerks  of 
the  United  States  courts  for  the  Indian  Territory,  and  the  clerks  of 
the  United  States  courts  in  Alaska  to  report  and  account  for  all 
moneys  received  by  them  on  accoimt  of  or  as  security  for  fees  and 
costs,  and  to  report  and  account  for  all  amounts  collected  or  received 
by  them  on  behalf  of  the  United  States  on  account  of  judgments, 
fines,  forfeitures,  penalties  and  costs.  The  Attorney  General  shall 
also  hereafter  require  such  clerks  to  report  and  account  for  any  other 
moneys  received  by  them  in  their  official  capacity,  whether  on  behalf 
of  the  United  States  or  otherwise,  and  the  Attorney  General  shall 
hereafter  prescribe  such  docket  or  dockets  or  other  books  as  lie  may 
deem  proper  to  be  kept  and  used  by  such  clerks  in  recording,  report- 
ing and  accounting  for  moneys  mentioned  above  in  this  paragraph, 
and  in  recording  all  fees  and  emoluments  earned  by  them,  which 

isSee    Post,    §    802,    as    to    equity 
rules. 

611 


§  606  CLERKS  OF    UNITED   STATES   COURTS  [Code    Fed. 

dockets  or  other  books  shall  be  kept  and  used  b}^  said  clcVs  in  ac- 
cordance with  rules  and  regulations  prescribed  by  the  Attuii^ey 
General. 

Act  June  30,  1906,  c.  3914,  34   Stat.  754. 

This  provision  is   later  than  that  of  the  act  of   1S98  given  above,i   and 
to  a  certain  extent,  at  least,  supersedes  it. 

iSee  ante,  §  589. 


612 


CHAPTER  17. 

UNITED  STATES  MARSHALS. 

§  613.  Cross  references  and  matters  affecting  marshals  not  included  lierein. 

§  614.  Power  of   Supreme  Court   to   appoint  a   marslial. 

§  615.  Compensation   and   duties   of   Supreme   Court    marshal. 

§  616.  District  marshal  to  act  for  circuit  court  of  appeals. 

§  617.  Terms  of  office  of  marshals. 

§  618.  Appointment  of  marshals  and  deputies  in  the  various  districts. 

§  619.  Temporary   appointments  to   fill   vacancy. 

§  620.  Appointments,  compensation  and  expenses  of  office  deputies. 

§  621.  —of  field  deputies. 

§  622.  Deputies    to    continue    after    marshal's    death — liability    for    their 

misfeasances. 

§  623.  Residence  and  duties  of  marshals  and  effect  of  removals  or  neglect. 

§  624.  Designation  of   official  residence  by  A.ttorney   General, 

§  625.  Oaths  of  marshals  and  deputies. 

S  626.  ^Vho  may  administer  the  oath. 

§  627.  Marshal's  bonds,  recording  and  evidence  thereof. 

§  628.  Increase  of  bond. 

§  629.  Suit  on  marshal's  bond — costs. 

§  630.  Bond  not  exhausted  by  one  suit,  but  continues. 

§  631.  Limitation  of  action  on  bond. 

§  632.  Deputies  bond  in  Kentucky  and  suit  thereon. 

§  633.  Salaries    in    lieu    of    fees. 

§  634.  Marshal's  salaries  in  particular  cases. 

§  635.  Salaries   payable    monthly. 

§  636.  Certain  compensation  and  fees  denied  to  deputies. 

§  637.  Oifice  expenses  of  marshals. 

§  638.  Traveling   expenses   and   for   transportation   of   prisoners. 

§  639.  Certain  expense  allowances  to  marshal. 

§  640.  Allowances  for  expenses  in  case  of  prize. 

§  641.  Quarterly   expense   accounts,   verification,  approval,   allowance   and 

returns. 

§  642.  Effect  of  removal  or  expiration  of  term  on  unserved  process. 

§  643.  — effect   upon   persons   in  custody. 

§  644.  Duties    of    marshal    in    general. 

§  645.  Duty  to  provide  court  rooms. 

§  646.  Duty  to   execute  awards  of  foreign   consuls. 

§  647.  — returns  to  Treasury  on  executions  for  money  drie  United  States. 

613 


§   6)3  UNITED    STATES   MARSHALS.  [Code  Fed. 

§  648.  — returns  to  Post  Office  Department   on  executions   in   post   office 

cases. 

§  649.  — returns   to   Department   of   Justice  on   executions  in  post   office 

cases. 

§  650.  Duty  as  to  places  of  confinement  of  prisoners. 

§  651.  Duty   to  make  other  provision  for  safekeeping  prisoners. 

§  652.  — to  prosecute  for  violations  of  law  as  to  transport  of  animals. 

§  653.  Duty  in  deportation  of  Chinese. 

§  654.  Duty  to  deliver  offender's  body  for  dissection. 

§  655.  Duty  of  marshal  in  removing  alien   enemies. 

§  656.  — to  seize  piratical  vessels. 

§  657.  Miscellaneous    duties    imposed    on    marshals. 

§  658.  Treasury  department  rules  as  to  suits  by  United  States  for  moneys. 

§  659'.  Custody  of  goods  seized  under  revenue  laws. 

§  600.  Powers  of  marshals  in  executing  laws. 

§  661.  Other   powers   of   marshals. 

§  662.  Forbidden  to  accept  gifts,  etc.,  to  compromise  revenue  suits. 

§  663.  Unserved   process  surrendered  by  retiring  marshal  or  deputy. 

§  613.     Cross  references  and  matters  affecting  marshals  not  in- 
cluded herein. 

The  statutory  provisions  as  to  marshal's  fees  are  given  in  a  subse- 
quent chapter.  1  The  provisions  as  to  mileage^  and  other  provisions 
applicable  generally  to  judicial  officers  will  be  found  elsewhere.^ 
Elsewhere  also  will  be  found  enactments  dealing  with  transmission 
of  accounts  to  Attorney  General;^  with  the  execution  of  writs  of 
removal  of  prisoners  and  other  matters  of  criminal  procedure  -.^ 
with  the  duty  of  the  marshal  to  satisfy  execution  in  judgments  ■.)r 
duties  and  the  money  in  which  he  shall  accept  payment;'''  with  the 
duty  of  the  marshal  in  executing  attachments  in  postal  suits  f  with 
his  duty  to  execute  a  deed  on  purchase  by  the  United  States  at 
execution  sale;^  with  the  power  of  the  marshal  to  adjourn  court  j^** 
appointment  of  jury  attendants  by  marshals.^ ^  Elsewhere  will  be 
found  sections  dealing  with  the  prohibition  against  marshals  prac- 
tising law/ 2  with  the  service  of  writs  of  venire  facias,  and  other 
duties  respecting  juries/ ^  with  the  service  of  process  and  the  par- 

iPost  §  712  et  seq. ;   as  to  fees  in  sPost,  §  1401. 

bankruptcy,   see   post   §§   2222,   2223.  9 Post,   §  2318. 

2  Post,  714;   ante,  §  456.  loSee  ante  §§  362-364. 

sAnte,  §§  441,  et  seq.  iiPost,  §  687. 

5 Ante,  §  451.  12 Ante,    §    496. 

ePost,  S§  1583,  1611,  1612.  isPost,   §§    1706. 
7Post,  §   1396, 

614 


Procedure]  SUPREME    COURT    MARSHAL.  §   615 

ties  by  whom  process  is  served  in  case  of  the  marshal's  disability/* 
with  the  power  of  marshals  to  stay  a  warrant  of  arrest  on  proceed- 
ings in  rem  in  admiralty/^  with  his  duty  in  cases  where  defendant 
giving  bail  in  one  district  is  committed  in  another  ;^^  and  in  cases 
of  execution  and  attachment  ;^'^  and  in  cases  where  court  is  ad- 
journed to  some  other  place  by  reason  of  epidemic.^  ^  There  are 
other  provisions  affecting  marshals  which  are  not  within  the  scope 
of  this  work.  The  provisions  of  law  as  to  deposits  of  public  moneys 
by  them  are  not  included  ;^^  nor  the  penal  section  punishing  the 
using  and  not  depositing  of  moneys  belonging  to  the  registry  ;2^ 
nor  the  provisions  as  to  his  duties  in  prize  causes  ;^  nor  the  provision 
punishing  his  refusal  to  receive  or  execute  process  in  behalf  of 
civil  rights  f  nor  the  provision  for  delivery  to  him  of  persons  found 
on  board  seized  slave  vessels.^  The  statutes  respecting  marshals 
in  consular  courts  are  omitted.* 
Author's  section. 

§  614-     Power  of  Supreme  Court  to  appoint  a  marshal. 

The  Supreme  Court  shall  have  power  to  appoint  .  .  .a  mar- 
shal for  said  court     .     .     . 

R.  S.  §  677,  U.  S.  Comp.  Stat.  1901,  p.  559. 
The  section  specifies  also  a  clerks  and  a  reporter. 

§  615.     Compensation  and  duties  of  Supreme  Court  marshal. 

The  marshal  is  entitled  to  receive  a  salary  at  the  rate  of  three 
thousand  five  hundred  dollars  a  year.  He  shall  attend  the  court 
at  its  sessions;  shall  serve  and  execute  all  process  and  orders  issuing 
from  it,  or  made  by  the  chief  justice  or  an  associate  justice  in  pur- 
suance of  law;  and  shall  take  charge  of.  all  property  of  the  United 
States  used  by  the  court  or  its  members.  With  the  approval  of  the 
chief  justice,  he  may  appoint  assistants  and  messengers  to  attend 

i4Post,  §§  853-.  S.   Comip.   Stat.    1901,   p.   3130,   3131, 

isPost,  §  12-20.  3132. 

lePost,  §  1553.  2See  R.  b.  §  5517,  U.  S.  Comp.  Stat. 

iTPost,  §  1858,  et  seq.  1901,  p.  3713. 

isAnte,  §  30().  sSee  R.  S.  §  5559,  U.  S.  Comp.  Stat. 

isSee  R.  S.  §§  3(51(5,  3617,  3619,  U.  1901.  p.  3735. 

S.  Comp.  Stat.   1901,  pp.  2413,  2415.  ^See    R.    S.    §§    4111-4110,    U.    S. 

2  0See   R.   S.    §   5504,  U.   S.   Comp.  Comp.  Stat.  1901,  p.  2776. 

Stat.  1901,  p.  3710.  5Ante,   §   559. 

iSee  R.  S.  §§  4623,    4628,    4629,  U. 

613 


{  G16  UNITED    STATES   MARSHALS.  [Code  Fed. 

the  court,  with  the  compensation  allowed  to  officers  of  the  House 
of  Representatives  of  similar  grade. 

R.  S.  §  G80,  U.  S.  Comp.  Stat.  1901,  p.  560. 
The  fees  of  marshal  of  the  Supreme  Court  are  set  forth  eUowhere.^ 

§  616,     District  marshal  to  act  for  circuit  court  of  appeals. 

So  much  of  section  3  of  the  act  approved  March  3,  1891,  to  es- 
tablish circuit  courts  of  appeals  as  authorizes  the  appointment  of 
a  marshal  to  each  of  said  courts  at  a  salary  of  two  thousand  five 
hundred  dollars  be  and  the  same  is  hereby,  repealed,  and  the  duties 
and  powers  imposed  upon  said  marshals  under  the  said  act  shall 
be  performed  by  the  United  States  marshals  in  and  for  the  dis- 
tricts where  terms  of  said  courts  may  be  held,  and  to  this  end  said 
marshals  shall  be  the  marshals  of  said  circuit  court  of  appeals. 

§   1,  act  July  16,   1892,  c.   196,  27  Stat.  222,   U.   S.  Comp.  Stat.   J901, 
p.  555. 

The  sixth  rule  originally  promulgated  lor  the  circuit  courts  of  appeal  in 
all  the  circuits  made  provision  as  to  the  duties  of  the  marshal  and  criers 
in  that  court.  In  the  first,  eighth  and  ninth  circuits  this  rule  has  since 
been  modilied.7 

§  617.     Terms  of  office  of  marshals. 

By  E.  S.  §  779  it  was  provided  that  "marshals  shall  be  appointed 
for  a  term  of  four  years."  To  obviate  the  inconveniences  of  an  in- 
terval between  the  expiration  of  one  term  and  a  new  appointment, 
a  law  of  1898  declared  that  "The  attorneys  and  marshals  of  the 
United  States,  including  the  District  of  Columbia  and  the  Terri- 
tories, shall  continue  to  discharge  the  duties  of  their  respective  of- 
fices, unless  sooner  removed  by  the  President,  until  their  successors 
shall  be  appointed  and  qualify  in  their  stead.  But  they  shall  be 
appointed  and  commissioned  for  the  term  of  four  years  as  now  pro- 
vided by  liaw."^ 

Author's  section. 

§  618.     Appointment  of  marshals  and  deputies  in  the  various  dis- 
tricts. 

By  R.  S.  §  776  the  appointment  of  a  marshal  for  each  district 
was  provided  "except  in  the  middle  district  of  Alabama,  and  the 
northern   district  of   Georgia,  and  the   western   district  of  South 

ePost,   §    713.  sAct  June   24.    1898,   c.   495,    §    1, 

■?See    the    rules   as   printed   in   the    30  Stat.  487. 
appendix. 

616 


Procedure]       APPOINTMENT  OF  MARSHALS  AND  DEPUTIES.  §  618 

Carolina"  the  marshal  in  other  districts  of  those  States  being  re- 
quired to  act  in  the  excepted  districts.  The  exceptions  as  to  Ala- 
bama'' and  as  to  Georgiai*^  ^re  superseded  by  later  laws.  South 
Carolina  really  constitutes  but  one  district  having  eastern  and 
western  divisions.  ^^  Various  special  provisions  as  to  marshals  and 
their  place  of  residence  in  particular  districts  and  the  appoint- 
ment of  deputies  therein  are  collected  in  the  note  to  this  sec- 
tion. An  act  of  1889  abolishing  circuit  court  powers  previously  ex- 
ercised by  district  courts  in  the  western  district  of  Arkansas,  north- 
ern district  of  Mississippi,  and  western  district  of  South  C*aro- 
lina,  and  creating  circuit  courts  therein  required  that  "the  mar- 
shals of  the  United  States  in  and  for  said  respective  districts  shall 
act  as  marshals  of  said  circuit  courts."^  ^  There  are  also  statutory 
provisions  for  the  appointment  of  marshals  in  the  Federal  judicial 
districts  created  upon  the  admission  of  new  States  to  the  Union/* 
or  created  by  the  division  of  existing  districts.  The  statutes  creat- 
ing new  districts  by  the  subdivision  of  an  existing  district  or  dis- 
tricts usually  designate  the  district  to  which  the  existing  marshal 
shall  be  assigned  and  provide  another  appointment  for  tlio  other 
district.^*  Sometimes  these  statutes  provide  that  the  act  creating 
the  new  district  shall  not  affect  the  tenure  of  office  of  existing  of- 
ficers.^^  N^one  of  these  enactments  vary  the  general  pro^dsions  of 
law  as  to  appointment,  tenure,  powers,  duties  or  compensation  of 
marshals,  and  in  their  operation  are  executed  rather  than  executory. 
It  would  serve  no  useful  purpose  to  set  them  forth  at  length  in  this 
work.  The  existing  laws  require  one  marshal  for  each  district.  The 
practitioner  should  advise  himself  of  any  reorganization  of  or 
change  in  judicial  districts  hereafter  made. 
Author's  section. 

9Act  Mar.  3,  1893,  c.  220.  27  Stat.        i^E.  g.  West  Virginia :  act  Jan.  22, 

745,  U.  S.  Conip.   Stat.  1901.  p.   319.  1901,   c.    105,    §S    4.   6.   31    Stat.    736, 

loAct  Apr.  25.  1882,  c.  87,  S   1,  22  U.  S.  Conip.  Stat.  1901,  p.  441.     llli- 

Stat.  47,  U.  S.  Comp.  Stat.   1901.  p.  nois:     act  Mar.   3.   1905,  c.   1427.   33 

335.  Stat.  990. 

iiSee  ante,  §  103.  isE.  g.  Calfornia:  act  Aug.  5,  1886, 

i2Act  Feb.  6,  1889.  c.  113.  25  Stat,  c.  928,  S  10,  24  Stat.  310,  U.  S.  Conip. 

655,  U.  S.  Comp.  Stat.  1901.  p.  493.  Stat.  1901.  p.  326.     Texas:    act  Mar. 

13E.  g.  see  Colorado:   act  June  26,  3.  1901,  c.  881,  §   19.  32  Stat.  69,  U. 

1876.  c.  147.   §  4,  19   Stat.   61,  U.   S.  S.  Comp.  Stat.  1903.  p.  74. 
Comp.  SUt.  1901,  p.  329. 

617 


§  ClS[a]  UNITED    STATES    MARSHAliS.  [Code  FedL 

[a]  Georgia,  Illinois  and  Indiana. 

The  acts  creating  the  eastern  division  of  the  northern  district  of  Georgia 
and  the  southwestern  and  Albany  divisions  of  the  southern  district  pro- 
vide that  no  additional  marshal  or  other  officer  be  appointed,  but  that 
the  existing  officers  perform  the  duties  of  their  positions  thereia.is  A 
statute  governing  the  northern  district  of  Illinois  provides  for  a  deputy 
marshal  and  his  place  of  residence;  and  other  statutes  provide  similarly 
as  to  deputies  and  place  of  residence  in  the  southern  district  of  Illinois. i^ 
In  the  Indiana  district  the  act  providing  for  terms  of  court  at  Fort 
Wayne  and  Hammond  require  the  marshal  to  discharge  the  duties  of  his 
office  for  the  terms  of  court  there  held,  and  also  require  him  to  appoint 
deputies  to  reside  and  keep  office  there  and  keep  the  records  pertaining  to 
their  offices  at  those  places. is 

[b]  Iowa,  Kansas  and  Kentucky. 

The  act  creating  the  southern  division  of  the  southern  district  of  Iowa 
provided  for  the  appointment  and  residence  of  a  deputy  marshal  at 
Creston.2o  In  Kansas  provisions  as  to  deputy  marshals  at  Fort  Scott 
and  Salina,  and  their  residence  and  duties  and  the  liability  of  the  marshal 
for  the  acts  of  the  Fort  Scott  deputy,  are  given  in  a  preceding  section,  i 
The  act  creating  the  Owensboro  division  in  Kentucky  provided  that  the 
marshal  "shall,  by  himself  or  deputy,  attend  upon  the  terms  of  the  court  in 
said  division;  and  he  may  appoint  a  deputy  to  reside  at  Owensborough 
(and  shall  do  so  if  ordered  by  the  court),  who  shall  discharge  all  the 
duties  of  marshal;  and  the  marshal  may  require  a  bond  of  indemnity  to 
himself  with  surety  for  the  faithful  discharge  of  his  duties  and  for  in- 
demnity in  case  of  breach,  on  which  actions  may  be  maintained  in  said 
district  court."2 

[c]  Maryland  and  Michigan. 

There  is  a  provision  for  a  deputy  marshal  in  the  Maryland  dis- 
trict, at  Cumberland,  similar  to  the  provision  for  a  deputy  clerk  there.s 
In  the  western  district  of  Michigan  a  statute  specifically  requires  the 
marshal  to  perform  the  duties  of  his  office  in  both  the  northern  and  southern 
divisions  and  to  keep  an  office  and  a  deputy  at  Marquette  in  the  northern 

16 Act   Feb.   28,    1901,   c.    G21,    §    2,  §  2.  30  Stat.  836,  U.  S.  Comp.  Stat. 

31  Stat.  818,  U.  S.  Comp.  Stat.  1001,  1901,  p.  348,  349. 

p.  341;   act  June  30,  1902,  c.  1338,   §         20See   act    quoted   and   cited    ante, 

2,   32   Stat.   550,   U.    S.    Comp.   Stat.  §  560.  [d]. 

1903,  p.  57;  act  Mar.  3,  1905,  c.  1431,        iSee  act  quoteu  and  cited  ante,  § 

33  Stat.  979,  U.  S.  Comp.  Stat.  1905,  569. [e] 
p.  87   as  amended  by  act  of   1906.  2Act  Aug.  8,   1888,  c.  792,  §  4,  25 

iTSee  acts  quoted"^  and  cited  ante,  Stat.  390,  U.  S.  Comp.  Stat.  1901,  p. 

§  569.[o]  360. 

isAct  Mar.  3,  1881,  c.  154,  §  2.  21        sSee  act  quoted  and  cited  ante,  § 

Stat.  511;   act  Feb.  14,  1899,  c.   155,  560.[g] 

618 


Procedure]        APPOINTMENT  OF  MARSHALS  AND  DEPUTIES.  §  618   [d] 

division. 4     There  is  a  similar  provision  in  the  eastern  3Iichigan  district  re- 
garding the  two  divisions  for  a  deputy  at  Bay  City.s 

[d]     Mississippi  and  Missouri. 

In  the  northern  district  of  ]VIississippi  a  statute  specifically  declares  that 
the  marshal  shall  act  for  both  divisions  thereof  with  the  fees  and  duties 
prescribed  by  law;  that  process  shall  be  directed  to  him  and  be  served  by 
him  or  his  deputies  upon  the  parties  whenever  found  in  the  northern  dis- 
trict; and  he  is  required  to  "have  an  office  and  at  least  one  general  deputy 
residing  at  the  place  of  holding  court  in  each  division  unless  he  shall  reside 
there  himself."''  In  the  southern  district  of  Mississippi  the  marshal  is  re- 
quired to  appoint  a  deputy  who  shall  reside  at  Vicksburg  and  act  as  marshal 
of  the  courts  there  in  place  of  his  principal ; "  and  another  deputy  with  sim- 
ilar powers  at  Mississippi  City; 8  and  another  with  similar  powers  at  Merid- 
ian. 9  The  statute  governing  the  eastern  and  western  districts  of  Missouri 
specifically  reqmres  that  the  marshal  in  each  district  act  in  all  the  divisions 
thereof,  with  the  fees,  duties  and  liabilities,  provided  by  general  law ; 
that  process  for  a  division  be  directed  to  the  marshal  of  the  district  where- 
in it  lies,  who  may  serve  it  anywhere  in  the  district;  and  that  he  "shall 
keep  an  office  and  at  least  one  general  deputy  residing  at  the  place  of 
holding  courts  in  each  division,  excepting  the  division  in  which  he  may 
himself  reside."io  A  later  statute  creating  the  southwestern  division 
of  the  western  district  required  the  marshal  of  the  district  to  perform  the 
duties  of  his  office  therein.n 

Provisions  as  to  the  powers  and  duties  of  marshals  in  the  eastern  and 
western  districts  of  Tennessee  and  for  a  deputy  at  Chattanooga  and  at 
Jackson  are  quoted  elsewhere.i2  The  act  creating  the  northeastern  divi- 
sion of  the  eastern  district  required  the  marshal  of  the  district  to  perform 
his  duties  therein,  but  made  no  provision  for  a  deputy. is  An  act  providing 
for  terms  of  circuit  and  district  court  at  Charlottesville  and  Roanoke  in 
Virginia  requires  the  marshal  for  the  western  district  to  discharge  the 
duties  of  his  office  for  the  terms  of  court  there  held-i*     In  the  act  govern- 

4Act  June  19,  1878,  c.  326,  §  5,  20  9Act  July  18,  18&4,  c.  144,  §  7,  28 

Stat.    176,   U.    S.    Comp.    Stat.    1901,  Stat.  115,  U.  S.  Comp.  Stat.  1901.  p. 

p.  371.  383. 

5Act  Feb.  28.  1887.  c.  269,  §  2,  24  lOAet   Feb.   28.    1887.   e.   271,    §   5, 

Stat.   433:   act  Apr.  30,   1894,   c.   66,  24  Stat.  426,  U.  S.  Comp.  Stat.  1901, 

§  5,  28  Stat.  68,  U.  S.   Comp.   Stat.  p.   387. 

1901.  p.  372.  374.  iiAct   Jan.   24,   1901.   164,   §   3.  31 

6Act   June    15,    1882,   c.    218,    §    5,  Stat.   739.   U.    S.    Comp.    Stat.    1901, 

22  Stat.  102,  U.  S.  Comp.  Stat.  1901,  p.  390. 

p.   379.  i2Ante,  §  569. [k] 

7 Act  Feb.  28,  1887,  c.  279,  §  4.  24  isAct   Feb.   7,   1900,  c.  10.   §   3.   31 

Stat.    431,   U.    S.    Comp.    Stat.    1901,  Stat.   5,  U.   S.   Comp.   Stat.   1901,  p. 

p.  381.  419. 

8 Act  Apr.   4,   1888.   c.   58    §    4,   25  i4Act  Feb.  3,  1903,  c.  398,  §  2,  32 

Stat.  79,  U.  S.  Comp.  Stat.  1901.  p.  Stnt.    794,   U.    S.   Comp.    Stat.    1903, 

382.  p.  77. 

619 


f  619  UNITED    STATES   MARSHALS.  [Code  Fed. 

ing  AVj-oming  tlieie  is  a  provision  for  a  deputy  at  Evanston;!^  and  the 
statute  respecting  the  Yellowstone  National  Park  provides  that  "the  mar- 
shal of  the  United  States  for  the  district  of  Wyoming  may  appoint  one  or 
more   deputy   marshals    for    said   park,    who    shall    reside   in    said    park."iti 

§  619.     Temporary  appointments  to  fill   vacancy. 

In  case  of  a  vacancy  in  either  of  said  offices  [i.  e.  United  .Stales 
attorney  or  marshal],  the  district  court  of  the  United  States  for  the 
district  where  such  vacancy  exists,  the  supreme  court  of  the  Terri- 
tory, and  the  supreme  court  of  the  District  of  Columbia  may  ap- 
point persons  to  exercise  the  duties  of  such  offices  within  their  re- 
spective jurisdictions,  until  such  vacancy  shall  be  filled. 

§  2  of  act  June  24,  1898,  c.  495,  30  Stat.  487,  U.  S.  Ck)mp.  Stat.  1901, 
p.  618. 
It  would  seem  that  this  enactment  supersedes  R.  S.  §  793,i8  which  pro- 
vided that  "in  ease  of  a  vacancy  in  the  office  of  district  attorney  or  marshal 
within  any  circuit,  the  circuit  justice  of  such  circuit  may  fill  the  same,  and 
the  person  appointed  by  him  shall  serve  vnitil  an  appointment  is  made 
by  the  President,  and  the  appointee  is  duly  qualified,  and  no  longer.  The 
appointment  made  by  said  justice  shall  be  in  writing  and  shall  be  filed 
in  the  clerk's  office  of  the  circuit  court,  and  a  copy  thereof  shall  be  entered 
upon  the  journal  of  said  court.  Any  marshal  so  appointed  shall  give  bond, 
as  if  appointed  by  the  President,  and  the  bond  shall  be  approved  by  said 
justice.  It  shall  then  be  filed  in  the  clerk's  office  of  said  court,  and  a  copj' 
shall  be  entered  on  the  journal  of  the  court.  A  certified  copy  of  such  entry 
shall  be  prima  facie  proof  of  the  execution  of  such  bond,  and  of  the  con- 
tents thereof."  It  is  held  that  the  intent  of  the  section  just  quoted  is  not  to 
enable  the  circuit  court  justice  to  oust  the  power  of  the  President,! 9 
but  that  it  merely  authorizes  him  to  fill  the  vacancy  until  the  President 
shall  act. 2  0 

§  620.  Appointments,  compensation  and  expenses  of  office  depu- 
ties. 
When,  in  the  opinion  of  the  Attorney  General,  the  public  interest 
requires  it,  he  may,  on  the  recommendation  of  the  marshal,  which 
recommendation  shall  state  the  facts  as  distinguished  from  conclu- 
sions, showing  necessity  for  the  same,  allow  the  marshals  to  employ 
necessary  office  deputies  and  clerical  assistance,  upon  salaries  to  be 
fixed  by  the  Attorney  General  from  time  to  time,  and  paid  as  here- 
inafter provided.     When  any  of  such  office  deputies  is  engaged  in 

i5Quoted  and  cited  ante.  §  569. [p]        i»V.  S.  Comp.  Stat.  1901,  p.  610. 

isAct  May   7,   1894.  c.  72.  §   6,  28        1 9 Such  power  is  given  under  Const. 
Stat.   75,  U.  S.   Comp.   Stat.   1901,  p.    §  2,  art.  2. 
15{>4.  2  0  In  re  Farrow,  3  Fed.  112. 

620 


Procedure]  FIELD    DEPUTIES.  §   621 

the  service  or  attempted  service  of  an}'  writ,  process,  subpoena,  or 
other  order  of  the  court,  or  when  necessarily  absent  from  the  place 
of  his  regular  employment,  on  official  business,  he  shall  be  allowed 
his  actual  traveling  expenses  only,  and  his  necessary  and  actual 
expenses  for  lodging  and  subsistence,  not  to  exceed  two  dollars  per 
day,  and  the  necessary  actual  expenses  in  transporting  prisoners, 
including  necessary  guard  hire ;  and  he  shall  make  and  render  ac- 
counts thereof  as  hereinafter  provided. 

§  10,  act  May  28,  1896,  c.  252,  29  Stat.   182,  U.  S.  Comp.  Stat.   1901, 
p.   615. 

It  would  seem  that  this  section  and  the  one  next  following  supersede  11. 
S.  §  780  which  provided  that  '"every  marshal  may  appoint  one  or  more 
deputies,  who  shall  be  removable  from  office  by  the  judge  of  the  dis- 
trict court  or  by  the  circuit  court  for  the  district,  at  the  pleasure  of 
either."  Prior  to  the  above  enactment  of  1396,  deputy  marshals  were  all 
on  the  same  footing,  holding  office  at  the  pleasure  of  the  marshal  unless 
removed  by  the  court. 2  They  were  not  officers  of  the  United  States 3  and 
stood  on  the  same  footing  with  regard  to  the  marshal  as  an  ordinary 
employee.^  It  is  held  that  the  above  provision  does  not  change  their 
position,  as  regards  tenure  of  office,  which  expires  at  the  expiration  of  the 
marshals  term.5 

§  621.  —  of  field  deputies. 

At  any  time  when,  in  the  opinion  of  the  marshal  of  any  district, 
the  public  interest  will  thereby  be  promoted,  he  may  appoint  one 
or  more  deputy  marshals  for  such  district,  who  shall  be  kno\\Ti  as 
field  deputies,  and,  who,  unless  sooner  removed  by  the  district  court 
as  now  provided  by  law  shall  hold  office  during  the  pleasure  of  the 
marshal,  except  as  hereinafter  provided,  and  who  shall  each,  as  his 
compensation,  receive  three-fourths  of  the  gross  fees,  including 
mileage,  as  provided  by  law,  earned  by  him,  not  to  exceed  one  thou- 
sand five  hundred  dollars  per  fi.^cal  year,  or  at  that  rate  for  any  part 
of  a  fiscal  year ;  and  in  addition  shall  be  allowed  his  actual  neces- 
sary expenses,  not  exceeding  two  dollars  a  day,  while  endeavoring  to 
arrest,  under  process,  a  person  charged  with  or  convicted  of  crime: 
Provided,  that  a  field  deputy  may  elect  to  receive  actual  expenses 
on  any  trip  in  lieu  of  mileage :  Provided,  that  in  special  cases  where, 

zPriddie  v.  Thompson,  82  Fed.  186.        5Dudley    v.    .Tames.    8:5    Fed.    345. 

sPow^ll  V.  United  States,  60  Fed.  See  contra,  Priddic  v.  Thompson,  82 
687.  Fed.  186.  lioldiiig  marshal  cannot  re- 

4 Douglas  V.  Wallace,  161  U.  S.  346,    move  office  deiputy. 
40  L.  ed.  727,  16  Sup.  Ct.  Rep.  485. 

621 


§  622  UNITED    STATES   MARSHALS.  [Code  Fed. 

in  his  judgment,  justice  requires,  the  Attorney  General  may  make 
an  additional  allowance,  not,  however,  in  any  case  to  make  the  ag- 
gregate annual  compensation  of  any  field  deputy  in  excess  of  twen- 
ty-five hundred  dollars,  nor  more  than  three-fourths  of  the  gross 
fees  earned  by  such  field  deputy.  The  marshal,  immediately  after 
making  any  appointment  or  appointments  under  this  section,  shall 
report  the  same  to  the  Attorney  General,  stating  the  facts  as  distin- 
guished from  conclusions  constituting  the  reason  for  such  appoint- 
ment, and  t  he  Attorney  General  may  at  any  time  cancel  any  such 
appointment  as  the  public  interest  may  require. 

Part  of  §  11,  act  May  28,  1896,  c.  252,  29  Stat.  182,  U.  S.  Comp.  Stat. 
1901,  p.  615. 

The  omitted  part  of  the  above  provision  provided  for  double  fees  for  field 
deputies  in  certain  districts  during  the  fiscal  year  1897. 

§  622.     Deputies  to  continue  after  marshal's  death — liability  for 
their  misfeasances. 

In  case  of  the  death  of  any  marshal,  his  deputy  or  deputies  shall 
continue  in  office,  unless  otherwise  specially  removed,  and  slia'l 
execute  the  same  in  the  name  of  the  deceased  until  another  marshal 
is  appointed,  as  provided  in  this  chapter,  and  duly  qualified.  The 
defaults  or  misfeasances  in  office  of  such  deputies  in  the  meantime 
shall  be  adjudged  a  breach  of  the  condition  of  the  bond  given  by  the 
marshal  who  appointed  them;  and  the  executor  or  administrator 
of  the  deceased  marshal  shall  have  like  remedy  for  the  defaiilts 
and  misfeasances  in  office  of  such  deputies,  during  such  interval,  as 
he  would  be  entitled  to  if  the  marshal  had  continued  in  life  and  in 
the  exercise  of  his  said  office  until  his  successor  was  appointed  and 
duly  qualified. 

R.  S.  §  789,  U.  S.  Comp.  Stat.  1901,  p.  609. 

This  section  was  first  enacted  in  1789.7 

§  623.  Residence  and  duties  of  marshals  and  effect  of  removals 
or  neglect. 
Every  .  .  .  United  States  marshal  .  .  .  shall  reside 
permanently  in  the  district  wliere  his  official  duties  are  to  be  per- 
formed, and  shall  give  his  personal  attention  thereto;  and  in  case 
any  such  officer  shall  remove  from  his  district,  or  shall  fail  to  give 

TAct  «ept.  24,  1789,  c.  20,  §  28,  1 
Stat.  87. 

622 


Procedure]  RESIDENCE  AND  OATH.  §  625 

personal  attention  to  the  duties  of  his  office,  except  in  case  of  sick- 
ness, such  office  shall  be  deemed  vacant :  Pro\dded,  That  in  the 
southern  district  of  New  York  said  officers  may  reside  within  twenty 
miles  of  their  districts. 

§  2,  of  act  June  20,  1874,  c.  328,  18  Stat.  109,  U.  S.  Comp.  Stat.  1901, 
p.  622. 

Tlie  provision  specifies  also  clerks  of  the  district  and  circuit  courts  and 
district  attorneys. « 

§  624.     Designation  of  official  residence  by  Attorney  General. 

The  marshal's  official  residence  shall  be  deemed  to  be  at  one  of 
the  places  of  holding  court  in  the  district,  and  the  Attorney  General 
shall  be  authorized  to  fix  and  declare  the  place  of  such  official  resi- 
dence. 

Part  of  §  12.  act  May  28,  1896,  c.  252,  29  Stat.  183,  U.  S.  Comp.  Stat. 
1901,  p.   616. 

It  is  provided  by  §  24  of  the  same  act  that  this  and  other  provisions 
shall  not  apply  to  Alaska. 

§  625.     Oaths  of  marshals  and  deputies. 

Every  marshal  and  deputy  marshal  shall,  before  he  enters  upon 
the  duties  of  his  appointment,  take,  before  the  district  judge  of  the 
district,  an  oath  of  affirmation  in  the  following  form:  "I,  A.  B..  do 
solemnly  swear  (or  affirm)  that  I  will  faithfully  execute  all  lawful 

precepts  directed  to  the  marshal  of  the  district  of ,  under  the 

authority  of  the  United  States,  and  true  returns  make,  and  in  all 
things  well  and  truly,  and  without  malice  or  partiality,  perform  the 
duties  of  the  office  of  marshal  (or  marshal's  deputy,  as  the  case  may 

be)   of  the  district  of  ,  during  my  continuance  in  said  office, 

and  take  only  my  lawful  fees.  So  help  me  God."  The  words  "so 
help  me  God"  shall  be  omitted  in  all  cases  where  an  affirmation  is 
admitted  instead  of  an  oath:  Provided,  that  when  any  person  who 
is  appointed  deputy  marshal  resides  and  is  more  than  twenty  miles 
from  the  place  where  the  district  judge  resides  and  is,  the  said  oath 
of  office  may  be  taken  by  him  before  any  judge  or  justice  of  any 
State  court  within  the  same  district,  or  before  any  justic(>  of  the 
peace  having  authority  therein,  or  before  any  notary  public  duly  ap- 
pointed in  such  State,  or  before  any  commissioner  of  a  circuit  court 
for  such  district,  and  shall,  when  certified  by  such  officer  to  the 

8 Ante.  §§  506,  571. 

623 


§  626  UNITED  STATES  MARSHALS.  [Code  Fed. 

said  district  judge,  be  as  effectual  as  if  taken  before  such  district 
judge. 

R.  S.  §  782,  U.  S.  Coi»p.  Stat.  1901,  p.  606. 

In  administering  the  above  oath  the  district  judge  does  not  perform  a 
judicial  function,  and  he  cannot  pass  upon  the  President's  right  to  make 
the  appointment. 9  The  commission,  and  the  performance  of  duties  by  a 
deputy  marshal,  raise  a  presumption  that  the  required  oath  has  been 
taken,  which  is  conclusive  in  the  absence  of  contrary  proof. lo  Tlie  fact 
that  a  deputy  marshal  in  charge  of  a  jury  is  not  specially  sworn  is  no 
ground  for  setting  aside  a  criminal  verdict  in  the  absence  of  objection  and 
after  the  court's  caution  to  the  jury  not  to  separate  or  talk  with 
stra,ngers.ii 

§  626.     Who  may  administer  the  oath. 

That  the  oath  or  oaths  required  to  be  taken  by  marshals  and 
deputy  marshals  before  entering  upon  the  duties  of  their  respective 
offices  may  be  administered  by  any  officer  of  the  United  States  or  of 
any  State  authorized  by  law  to  administer  oaths. 

From   appropriation   act   of   Dec.   22,   1896,   c.    3,   29    Stat.   481,   U.    S. 
Comp.  Stat.  1901,  p.  606. 

§  627.     Marshal's  bond,  recording  and  evidence  thereof. 

Every  marshal,  before  he  enters  on  the  duties  of  his  office,  shall 
give  bond  before  the  district  judge  of  the  district,  jointly  and  sev- 
erally with  two  good  and  sufficient  sureties,  inhabitants  and  inn^- 
holders  of  such  district,  to  be  approved  by  said  judge,  in  the  sum 
of  twenty  thousand  dollars,  for  the  faithful  performance  of  said 
duties  by  himself  and  his  deputies.  Said  bond  shall  be  filed  and 
recorded  in  the  office  of  the  clerk  of  the  district  court  or  circuit  court 
sitting  within  the  district,  and  copies  thereof,  certified  by  the  clerk, 
under  the  seal  of  the  said  court,  shall  be  competent  evidence  in  any 
court  of  justice. 

R.  S.  §  783,  U.  S.  Comp.  Stat.  1901,  p.  607. 

A  later  act  creating  the  southern  district  in  Texas  provides  that  "the 
marshals  and  their  deputies  shall  give  the  bond  required  of  marshals  and 
deputy  marshals  under  the  provisions  of  existing  law." is  Under  the  above 
provison  two  sureties  are  necessary  to  the  bond,  which  must  be  approved 

9ln   re   Yancey,   28   Fed.   445.  isAct  Mar.   11,  1902,   c.   183,  §    15, 

loUnited  States  v.  Hudson.  1  Hask.  32  Stat.  69,  U,  S.  Comp.  Stat.  1903, 
527,  Fed.  Oas.  No.  15,412.  p.  73. 

iiUnited  States  v.  Ball.  163  U.  S. 
674,  41  L.  ed.  300,  16  Sup.  Ct.  Rep. 
119i2. 

624 


Procedure]  BONDS.  §  630 

by  the  district  judge,  and  a  mai'slial  is  not  qualified  until  such  bond  is 
given  and  until  it  is  received  by  the  proper  official,  i* 

§  628.     Increase  of  bond. 

Whenever  the  business  of  the  courts  in  any  judicial  district  shall 
make  it  necessary  in  the  opinion  of  the  Attorney  General,  for  the 
.  .  .  marshal  to  furnish  greater  securities  than  the  official  bond 
now  required  by  law,  a  bond  in  a  sum  not  to  exceed  forty  thousand 
dollars  shall  be  given  when  required  by  the  Attorney  General,  who 
shall  fix  the  amount  thereof. 

§  2,  act  Feb.  22,  1875,  e.  95,  18  Stat.  333,  U.  S.  Comp.  Stat.  1901,  p.  G20. 
This  provision  specifies  clerks  also.is 

§  629.     Suit  on  marshal's  bond — costs. 

In  case  of  a  breach  of  the  condition  of  the  marshal's  bond,  any 
person  thereby  injured  may  institute  in  his  own  name  and  for  his 
sole  use  a  suit  on  said  bond,  and  thereupon  recover  such  damage.^ 
as  shall  be  legally  assessed,  with  costs  of  suit,  for  which  execution 
may  issue  for  him  in  due  forin.  If  such  party  fails  to  recover  in 
the  suit,  judgment  shall  be  rendered  and  execution  may  issue  against 
him  for  costs  in  favor  of  the  defendant;  and  the  United  States 
shall  in  no  case  be  liable  for  the  same. 

R.  S.  §  784,  U.  S.  Comp.  Stat.  1901,  p.  607. 

The  section  was  enacted  in  1800.16  While  it  authorizes  the  injured  party 
to  bring  suit  in  his  own  name,  the  suit  may  also  be  brought  by  the  United 
States.i7  In  such  case  the  judgment  is  for  the  penalty  and  it  apparently 
may  be  held  by  the  United  States  as  security  for  the  party  injured.is 
But  if  the  suit  is  brought  in  the  name  of  a  private  person  it  is  for  his  sole 
use,  and  his  recovery  is  the  damages  legally  assessed.is  If  the  government 
has  no  right  to  sue  on  the  bond,  an  individual  has  none,  hence  no  action 
lies  on  the  bond  by  a  deputy  for  money  due  him  retained  by  the  marslial.2  0 

§  630.     Bond  not  exhausted  by  one  suit,  but  continues. 

The  said  bond  shall  remain,  after  any  judgment  rendered  there- 
on, as  a  security  for  the  benefit  of  any  person  injured  by  Ijreach  of 
the  condition  of  the  same,  until  the  whole  penalty  has  been  recov- 

i4jackson  v.  Simonton,  4  Cr.  C.  C.    433,  Fed.  Cas.  No.  14,921  ;  Hagood  v. 

255,  Fed.  Cas.  No.  7147.  Blvthe.  37  Fed.  252. 

15 Ante,  §  575.  isHagood  v.  Blythe,  37  Fed.  252. 

l6Act   April    10,    ISOG.   c.   21.  §    2.         isTdcm. 

2  Stat.  373.  20Bollin  v.  Blythe,  46  Fed.  181. 

ifUnited  States  v.  Davidson,   1  Biss. 

Fed.  Proc— 40.  625 


§  631  UNITED    STATES   MARSHALS.  [Code  Fed. 

ered ;  and  the  proceedings  shall  always  be  as  directed  in  the  preced- 
ing section. 

R.  S.  §  785,  U.  S.  Comp.  Stat.  1901,  p.  607. 

This  provision  was  originally  enacted  in  1806.2  its  meaning  is  that  the 
person  injured  may  bring  suit  on  the  bond  in  his  own  name,  notwithstand- 
ing a  judgment  already  had  on  it.s 

§  631.     Limitation  of  action  on  bond. 

No  suit  on  a  marshal's  bond  shall  be  maintained  unless  it  is 
commenced  within  six  years  after  the  right  of  action  accrues,  sav- 
ing, nevertheless,  the  rights  of  infants,  married  women  and  insane 
persons,  so  that  they  sue  within  three  years  after  their  disabilities 
are  removed. 

R.  S.  §  786,  U.  S.  Comp.  Stat.  1901,  p.  607. 

This  section,  enacted  in  1806,5  aoes  not  apply  to  suits  by  the  United 
«States,6  nor  does  it  begin  to  run  against  a  claim  for  proceeds  of  marshals' 
Bale  suspended  by  appeal  until  after  affirmance  of  the  decree.'? 

§  632.     Deputies'  bond  in  Kentucky  and  suit  thereon. 

The  marshal  may  require  a  bond  of  indemnity  to  himself  [from 
the  deputy  at  Owensboro,  Kentucky]  with  surety  for  the  faithful 
discharge  of  his  duties  and  for  indemnity  in  case  of  breach,  on  which 
actions  may  be  maintained  in  said  district  court  [of  the  United 
States.] 

Part  of  §  4,  axjt  Aug.  8,  1888,  c.  792,  25  Stat.  390,  U.  S.  Comp.  Stat. 
1901,  p.  360. 

§  633.     Salaries  in  lieu  of  fees. 

On  and  after  the  1st  day  of  July.  1896     .     .     .     ITnited  States 

marshals     ,     ,     .     shall  be  paid  for  their  official  services     .     .     . 

salaries  and  compensation  hereinafter  provided  and  not  otherwise. 

Part  of  §  6  of  act  May  28,  1896,  c.  252,  29  Stat.  179,  U.  S.  Comp.  Stat. 

1901,  p.  611. 

The  section  also  provided  that  the  fees  previously  allowed  marshals  and 
district  attorneys  should  be  paid  thereafter  to  the  clerk  and  be  by  him 
paid  into  the  Treasury. » 

2 Act  April   6,    1806,   c.    21,    §   3,    2  States    v.    Giodbold.    3    Woods,    550, 

Stat.  374  Fed.  Cas.  No.  15,219. 

SHagood  V.  Ely  the,  37  Fed.  252.  VMontgomerv     v.     Hernandez,     12 

5 Act  April   lO",   1806,   c.   21,   §   4,  2  Wheat.   129,   6"  L.  ed.  575. 
Stat.  374.  sSee  post,  §  745.     See  also  ante  S 

6Unite4  States   v.   Rand,  4   Sa^vy.  509. 
272,    Fed.    Cas.    No.    16,116;    United 

C2G 


Procedure]  SALARIES    IN    PARTICULAR    CASES.  §  634 

§  634.     Marshal's  salaries  in  particular  cases. 

The  United  State.s  marshal  for  each  judicial  district  of  the 
United  States  shall  be  paid,  in  lieu  of  the  salaries,  fees,  per  centunis 
and  other  compensation  now  allowed  by  law,  an  annual  salary  as 
follows :  For  the  northern  and  middle  districts  of  the  State  of  Ala- 
bama, each  four  thousand  dollars;  for  the  southern  district  of  the 
State  of  Alabama,  three  thousand  dollars ;  for  the  Territory  of  Ari- 
zona, four  thousand  dollars;  for  the  eastern  district  of  Arkansas, 
four  thousand  dollars;  for  the  western  district  of  Arkansas,  five 
thousand  dollars ;  for  the  northern  district  of  California,  four  thou- 
sand dollars ;  ...  for  the  district  of  Colorado,  four  thousand 
dollars;  for  the  district  of  Connecticut,  tv\-o  thousand  dollars;  for 
the  district  of  Delaware,  two  thousand  dollars;  for  the  District  of 
Columbia,  five  thousand  five  hundred  dollars ;  for  the  northern  and 
southern  districts  of  Florida,  each  three  thousand  dollars;  for  the 
northern  district  of  Georgia,  five  thousand  dollars ;  for  the  southern 
district  of  Georgia,  three  thousand  five  hundred  dollars;  .  .  . 
for  the  northern  district  of  Illinois,  five  thousand  dollars ;  for  the 
southern  district  of  Illinois,  four  thousand  five  hundred  dollars ;  for 
the  district  of  Indiana,  four  thousand  five  hundred  dollars ;  for  the 
northern  and  southern  districts  of  Iowa,  each  four  thousand  dol- 
lars; for  the  district  of  Kansas,  four  thousand  dollars;  for  the 
district  of  Kentucky,  five  thousand  dollars;  for  the  eastern  dis- 
trict of  Louisiana.,  three  thousand  dollars;  for  the  western  dis- 
trict of  Louisian,  two  thousand  five  hundred  dollars;  for  the  dis- 
trict of  Maine,  three  thousand  dollars;  for  the  district  of  ^Maryland, 
three  thousand  five  hundred  dollars;  for  the  district  of  Massa- 
chusetts, five  thousand  dollars;  for  the  eastern  district  of  ]\Iichi- 
gan,  four  thousand  dollars,  for  the  western  district  of  Michigan, 
three  thousand  dollars;  for  the  district  of  Minnesota,  four  thousand 
dollars;  for  the  northern  and  southern  districts  of  Mississippi, 
each  three  thousand  dollars;  for  the  eastern  district  of  Missouri, 
four  thousand  dollars;  for  the  western  district  of  Missouri,  four 
thousand  dollars;  for  the  district  of  Xew  Jersey,  three  thousand 
five  hundred  dollars;  for  the  district  of  Nebraska,  three  thousand 
five  hundred  dollars;  for  the  district  of  ISTev^ada,  two  thousand 
five  hundred  dollars;  for  the  district  of  New  Hampshsire,  two 
thousand  dollars;  for  the  district  of  New  Jersey,  three  thousand 
dollars ;  for  the  district  of  New  Mexico,  four  thousand  dollars ;  for 
the  northern  district  of  New  York,  five  thousand  dollars;  for  the 

027 


§   634  UNITED    STATES    MARSHALS.  [Code  Fed. 

eastern  district  of  New  York,  four  thousand  dollars ;  for  the  south- 
ern disrict  of  Xew  York,  five  thoiisand  dollars ;  for  the  eastern  dis- 
trict of  North  Carolina,  four  thousand  dollars ;  for  the  western  dis- 
trict of  North  Carolina,  four  thousand  five  hundred  dollars ;  for  the 
district  of  North  Dakota,  four  thousand  dollars;  for  the  northern 
and  southern  districts  of  Ohio,  each  four  thoiisand  dollars;  for  the 
district  of  Oklahoma,  five  thousand  dollars ;  for  the  district  of  Ore- 
gon, four  thousand  dollars ;  for  the  eastern  district  of  Pennsylvania, 
four  thousand  dollars ;  for  the  western  district  of  Pennsylvania, 
four  thousand  dollars;  for  the  district  of  Rhode  Island,  two  thou- 
sand dollars ;  for  the  eastern  and  western  districts  of  the  district  of 
South  Carolina,  four  thousand  five  hundred  dollars,  two  thousand 
five  hundred  dollars  of  which  shall  be  for  the  performance  of  the 
duties  of  marshal  of  the  western  district;  for  the  district  of  South 
Dakota,  four  thousand  dollars ;  for  the  eastern,  middle  and  western 
districts  of  Tennessee,  each  four  thousand  dollars ;  for  the  northern 
district  of  Texas,  three  thousand  dollars;  for  the  eastern  district 
of  Texas,  five  thousand  dollars;  for  the  western  district  of  Texas, 
four  thousand  dollars ;  for  the  district  of  Utah,  three  thousand  five 
hundred  dollars;  for  the  district  of  Vermont,  two  thousand  five 
hundred  dollars ;  for  the  eastern  district  of  Virginia,  three  thousand 
five  hundred  dollars ;  for  the  western  district  of  Virginia,  four  thou- 
sand dollars ;  for  the  district  of  Washington,  four  thousand  dollars ; 
for  the  district  of  West  Virginia,  four  thousand  dollars;  for  the 
eastern  district  of  Wisconsin,  four  thousand  dollars ;  for  the  western 
district  of  Wisconsin,  four  thousand  dollars ;  for  the  district  of  Wyo- 
ming, three  thousand  five  hundred  dollars. 

§   9,  act  May  28,  1896,  c.  252,  29  Stat.  181,  U.  S.  Comp.  Stat.  1901,  p. 
613-615. 

The  omitted  portions  of  the  above  section  provide  an  annual  salary  of 
three  thousand  dollars  for  the  marshal  of  the  southera  district  of  Cali- 
fornia and  the  district  of  Idaho.  The  sundry  civil  appropriation  act  of  1906 
raises  the  salary  of  these  officers  to  four  thousand  dollars. 9  By  §  24  of 
the  same  act  it  is  provided  tliat  the  above  section  does  not  apply  to  Alaska. 
The  salaries  of  each  of  the  marshals  in  Oklahoma  are  to  be  tlie  same  aa 
in  other  districts. lo  Tlie  above  enactment  necessarily  superseded  R.  S.  § 
841,  fixing  the  maximum  compensation  allowable  to  marshals  out  of  fees 
collected.     It  also  superseded  R.  S.  §  842 n  in  so  far  as  allowing  marshals 

9Act  June  30,  1906,  c.  3914,  34  loAct  June  19,  1906,  §  13,  c.  3335, 
Stat.  753.  34  Stat.   275. 

iiSee  ante,  §  581. 
628 


Procedure]  SALARIES  AND   EXPENSES.  8   638 

additional  compensation  in  prize  cases;  and  R.  S.  §  84312  in  so  far  as  ap- 
plicable to  marshals.  A  later  law  creating  a  middle  district  in  Pennsylvania 
provides  that  the  marshal's  salary  shall  be  the  same  as  in  the  western 
district,  i.  e.,  $4,000:13  and  in  the  new  eastern  district  of  Kentucky  the 
same  as  in  the  older  Kentucky  district,  i.  e.,  $.5,000  ;14  and  in  the  new 
westejTi  district  of  New  York  the  same  as  in  the  northern  district,  i.  e., 
$6,000. '6  The  marshal  in  the  new  southern  district  of  Texas  is  given  a 
salary  of  $3,500  per  annum,  payable  as  the  marshals  ...  in  other  dis- 
tricts are  paid  under  the  provisions  of  existing  law."i6 

§  635.     Salaries  payable  monthly. 

All  salaries  provided  by  section  six  to  fifteen,  [includes  marshals 
salaries]  inclusive,  of  this  act,  shall  be  paid  monthl}'  by  the  Depart- 
ment of  Justice. 

§  16  of  act  May  28,  1896,  c.  252,  29  Stat.  183,  U.  S.  Comp.  Stat.  1901, 
p.  617. 

§  636.     Certain  compensation  and  fees  denied  to  deputies. 

No  officer  or  field  deputy  shall  receive  compensation  as  bailiff,  and 
no  field  deputy  shall  receive  fees  for  representing  the  marshal  in 
court. 

Proviso  of  §  13,  act  May  28,  1896,  c.  252,  29  Stat.  183,  U.  S.  Comp.  Stat. 
1901,  p.  617. 

§  637.     Office  expenses  of  marshals. 

The  necessary  office  expenses  of  the  .  .  .  marshals  shall  be 
allowed  when  authorized  by  the  Attorney  General. 

§  14  of  act  May  28,  1896,  c.  252,  29  Stat.  183,  U.  S.  Comp.  Stat.  1901, 
p.  617. 

This  provision  applies  to  district  attorneys  also.is 

§  638.     Traveling  expenses  and  for  transportation  of  prisoners. 

The  marshal  when  attending  court,  at  any  place  otlier  than  his 
official  residence,  and  when  engaged  in  the  service  or  attempted 
service  of  any  process,  writ  or  subpoena,  and  when  otherwise  neces- 
sarily absent  from  his  official  residence,  on  official  business,  sliall  be 
allowed  his  necessary  expenses  for  lodging  and  subsistence  not  ex- 

12 Ante.  §  582.  i^Vct   Mav   12.   1900,   c.   391,    §   0, 

isAct  Mar.  2.  1901.  c.  801.  §  5.  31  31  Stat.  176,' U.  S.  Comp.  Stat.  1901, 

Stat.  881,  U.  S.  Comp.  Stat.  1901.  p.  p.  396. 

406.  i«Act   Mar.    11.  1902,  c.   183,   §   15, 

n.Act  Feb.  12,  1901.  c.  355.  S  7,  31  32  Stat.  69.  I".  S.  Comp.  Stat.  1903, 

Stat.  782,  U.  S.  Comp.  Stat.  1901.  p.  p.  73. 

362.  19 Ante,  §  517. 

629 


§   639  UNITED  STATES  MARSHALS.  [Code  Fed. 

ceeding  four  dollars  per  day  and  his  actual  necessary  traveling  ex- 
penses. He  shall  also  be  allowed  the  actual  necessary  expenses  in 
transporting  prisoners,  including  necessary  guard  hire.  An  ac- 
count of  such  expenses  shall  be  made  out  and  paid  as  hereinafter 
provided. 

Part  of  §  12  of  act  May  28,  1896,  c.  25:!!,  29  Stat.  183,  U.  S.  Comp.  Stat. 
1901,  p.  616. 

The  omitted  portion  prescribes  the  official  residence  of  the  marshal.i 
R.  S.  §  5546  and  an  act  of  18912  deal  with  the  duty  of  marshals  in  trans- 
porting prisoners.  The  provision  as  to  expenses  for  transporting  prisoners 
contained  in  the  act  of  1891  would  seem  to  be  superseded  by  the  above 
section. 

§  639.     Certain  expense  allowances  to  marshal. 

There  shall  be  paid  to  the  marshal  his  fees  for  services  rendered 
for  the  United  States,  for  summoning  jurors  and  witnesses  in  be- 
half of  the  United  States,  and  in  behalf  of  any  prisoner  to  be  tried 
for  a  capital  offense,  for  the  maintenance  of  prisoners  of  the  United 
States  confined  in  jail  for  any  criminal  offense;  also,  for  his  rea- 
sonable actual  expense  for  the  transportation  of  criminals,  and  of 
the  marshal  and  guards,  to  prisons  designated  by  the  Attorney  Gen- 
eral, and  for  hire  and  subsistence  in  that  behalf,  as  hereinbefore 
provided ;  also,  his  fees  for  the  commitment  or  discharge  of  prison- 
ers; his  expenses  necessarily  incurred  for  fuel,  lights,  and  other 
contingencies  that  may  accrue  in  holding  the  courts  within  his 
district,  and  providing  the  books  necessary  to  record  the  proceedings 
thereof ;  provided,  that  he  shall  not  incur,  or  be  allowed,  an  expense 
of  more  than  twenty  dollars  in  any  one  year  for  furniture,  or  fifty 
dollars  for  rent  of  a  building  and  making  improvements  thereon, 
without  first  submitting  a  statement  and  estimates  to  the  Attorney 
General  and  getting  his  instructions  in  the  premises. 
R.  S.  §  830,  U.  S.  Comp.  Stat.  1901,  p.  639. 

Much  of  the  above  section  is  superseded  by  later  enactments.  In  so  far 
as  it  provides  fees  payable  by  the  United  States  in  criminal  cases  it  is 
superseded  by  the  law  of  1896,  giving  salaries  in  lieu  of  fees.3  The  provi- 
sion as  to  expense  allowance  for  transportation  of  criminals  is  also  super- 
seded.4     The  clause  as  to  office  expenses  must  be  construed  in  connection 

lAnte,  §  624.  3 Ante.  §§  633,  634. 

2Act  Mar.  3,  1891,  c.   529,  §  5,  26        4Ante,   §   638. 
Stat.  839,  U.  S.  Comp.  Stat.  1901,  p. 
3723,  3726. 

630 


Procedure]  QUARTERLY    EXPENSE    ACCOUNTS.  §   641 

with  the  later  enactment  allowing  office  expenses  only  when  approved  by 
the  Attorney  General. 5  The  provision  regarding  expenses  for  fuel,  light 
and  record  books  for  the  courts  se(?ms  to  be  unaffected  by  later  statutes. 
Hack  and  carriage  hire  have  been  allowed  the  marshal  in  the  transporta- 
tion of  criminals,6  also  the  actual  expenses  incurred  by  hiring  guardsj 
including  money  paid  for  their  meals. ^  He  is  also  allowed  for  the  main- 
tenance of  prisoners  in  custody  awaiting  examination,  but  not  in  jail, 9  and 
for  money  expended  for  meals  to  jurors  while  they  are  deliberating  on 
their  verdict. lo  The  expenses  of  hiring  bailiffs  ordered  by  the  court  have 
been  allowed  as  "other  contingencies  that  may  accrue  in  holding  courts" 
within  the  meaning  of  the  section. n 

§  640.     Allowances  for  expenses  in  case  of  prize. 

The  marshall  be  allowed  his  actual  and  necessary  expenses  for 
the  custody,  care,  preservation,  insurance,  sale  or  other  disposal  of 
the  prize-property,  and  for  executing  any  order  of  the  court  respect- 
ing the  same  .  .  .  No  charges  of  the  marshal  for  expenses  or 
disbursements  shall  be  allowed,  except  upon  his  oath  that  the 
same  have  been  actually  and  necessarily  incurred  for  the  purp  ).-e 
stated. 

Part  of  R.  S.  §  4645,  U.  S.  Comp.  Stat.  1901,  p.    3137. 

The  remainder  of  the  section  confers  certain  commissions  upon  the 
marshal  by  way  of  compensation;  but  it  must  be  regarded  as  superseded 
by  the  act  of  189G12  as  to  salaries. 

§  641.     Quarterly  expense  accounts,  verification,  approval,  allow- 
ance and  returns. 

Whenever  in  this  act  an  officer  [this  includes  marshals  and  their 
deputies]  is  allowed  actual  expenses,  the  account  therefor  shall 
be  made  out  quarterly,  in  accordance  with  rules  and  regulations  pre- 
scribed by  the  Attorney  General.  When  made  out  the  account  shall 
be  verified  on  oath  before  an  officer  authorized  to  administer  oaths. 
The  expense  accounts  of  the  marshals  and  their  office  deputies  and 
the  accounts  of  the  field  deputies  shall  l)e  paid  by  the  marshals ;  said 
accounts     .     .     .     when  made  out  in  accordance  with  this  act,  shall 

sAnte,  §  637.  313.     See  also  Swift  v.  United  States, 

SKinnev  v.  United  States.  .54  Fed.  128  Fed.  763. 

313;    Uni'ted   States   v.   Harmon,   147  sDonahower   v.    United   States,   77 

U.  S.  268,  37  L.  ed.  1G4.  13  Sui).  Ct.  F^d.  153. 

Rep    307  lOIdem.       And     see     Campbell     v. 

,tt'-I  ^    o.  .  r^u       ,n    -c  ^     United  States,  65  Fed.  777,  13  C.  C. 

^United    States    v.    El>bs,    49    Fed.     _^     j.,g 

149;    United   States  v.   Dill,   86   Fed.    '  'nunited  States  v.  Swift,  139  Fed. 

79,  29  C.  C.  A.  5S6.  225,    (C.  C.  A.) 

sKinnev  v.  United  States,  54  Fed.        i2See  ante,  §§  6.33,  634. 

631 


§   642  UNITED  STATES  MAUSHAbS.  [Code  Fed. 

be  submitted  to  and  examined  by  the  circuit  court  or  district  court 
of  the  district,  and  when  approved  by  the  court  shall  be  audited  and 
allowed  as  now  provided  for  by  law.  Each  marshal  shall  make 
such  returns  of  the  earnings  and  expenses  of  his  office  as  shall  be 
required  under  rules  and  regulations  prescribed  by  the  Attorney 
General. 

Part  of  §  13,  act  May  28,  1896,  c.  252,  29  Stat.  183,  U.  S.  Comp.  Stat. 
1901,  p.  616. 

This  seems  to  supersede  R.  S.  833, 1 4  requiring  semiannual  returns  as 
to  fees  and  expenses,  in  so  far  as  applicable  to  marshals.  That  section 
provided  that  "every  .  .  .is  marshal  shall,  on  the  first  days  of  Janu- 
ary and  July  in  each  year,  or  within  thirty  days  thereafter,  make  to  the 
Attorney  General,  in  such  form  as  he  may  prescribe,  a  written  return  for 
the  half  year  ending  on  said  days,  respectively,  of  all  the  fees  and  emolu- 
ments of  his  office,  of  every  name  and  character,  and  of  all  the  necessary 
expenses  of  his  office,  including  necessary  clerk  hire,  together  with  the 
vouchers  for  the  payment  of  the  same  for  such  last  half  year.  He  shall 
state  separately  in  return  the  fees  and  emoluments  received  or  payable 
under  the  bankrupt  act;  and  every  marshal  shall  state  separately  therein 
the  fees  and  emoluments  received  or  payable  for  services  rendered  by  him- 
self personally,  those  received  or  payable  for  services  rendered  by  each  of  his 
deputies,  naming  him,  and  the  proportion  of  such  fees  and  emoluments 
which,  by  the  terms  of  his  service,  each  deputy  is  to  receive.  Said  returns 
shall  be  verified  by  the  oath  of  the  officer  making  them."  But  R.  S.  § 
846,  as  to  inspection  and  approval  of  accounts  by  the  judges,  is  still  in 
force.16 

§  642.     Effect  of  removal  or  expiration  of  term  on  unserved  proc- 
ess. 

The  first  portion  of  E.  S.  §  790  provided  that:  "every  marshal 
or  his  deputy,  when  removed  from  office,  or  when  the  term  for 
which  the  marshal  is  appointed  expires,  shall  have  power,  notwith- 
standing, to  execute  all  such  precepts  as  may  be  in  their  hands 
respectively  at  the  time  of  such  removal  or  expiration  of  office." 
But  this  would  seem  to  be  superseded  by  a  provision  in  a  stat- 
ute of  1899  requiring  that  "hereafter  all  unserved  process  re- 
maining in  the  hands  of  a  United  States  marshal  or  his  deputies, 
when  the  marshal  ceases  to  be  such,  shall  be  immediately  delivered 
to  the  succeeding  marshal  upon  request ;  and  wlien  a  deputy  United 
States  marshal  resigns  or  is  removed  he  shall,  upon  request,  deliver 

14U.   S.   Comp.   Stat.   1901,  p.   642.    ante.  §  520;   and  clerks,  ante,  §  589. 
islncludes  also   district  attorneys,        i^See  Ante  §  448. 

632 


Procedure]  DUTIES    IN    GENERAI^.  |  644 

to  the  United  States  marshal  for  the  district  all  process  remaining 
in  his  hands."^®    The  remaining  portion  of  E.  S.  §  790  is  unaffected 
by  this  law  of  1899  and  is  given  elsewhere.^ ^ 
Author "o  section. 

Although  the  term  of  office  of  a  marshal  has  expired,  it  is  still  his  duty 
to  settle  his  accounts  with  the  government,  which  dutj'  is  discharged  under 
the  sanction  of  his  official  oath  and  the  obligation  of  his  bond. 20 

§  643.  —  effect  upon  persons  in  custody. 

The  marshal  shall  be  held  responsible  for  the  delivery  to  his 
successor  of  all  prisoners  who  may  be  in  his  custody  at  the  time  of 
his  removal,  or  when  the  term  for  which  he  is  appointed  expires; 
and  for  that  purpose  he  may  retain  such  prisoners  in  his  custody 
until  his  successor  is  appointed  and  duly  qualified. 
Part  of  R.  S.  §  790,  U.  S.  Comp.  Stat.  1901,  p.  G09. 

§  644.     Duties  of  marshal  in  general. 

It  shall  be  the  duty  of  the  marshal  of  each  district  to  attend  the 
district  and  circuits  courts  wdien  sitting  therein,  and  to  execute, 
throughout  the  district  all  lawful  precepts  directed  to  him,  and  is- 
sued under  the  authority  of  the  United  States;  and  he  shall  have 
power  to  command  all  necessary  assistance  in  the  execution  of  his 
duty. 

R.  S.  §  787,  U.  S.  Comp.  Stat.  1901,  p.  COS. 

The  authority  of  marshals  to  execute  process  of  the  Federal  courts  is 
derived  from  the  Federal  law.2  They  are,  however,  merely  ministerial 
officers  and  cannot  judge  whether  such  process  shall  be  issued,  3  but  are 
justified  in  acting  if  the  process  is  regular  and  legal  on  its  face.*  In 
making  an  arrest  they  may  use  all  necessary  force  and  summon  assistance 
if  required. 5  On  the  execution  of  an  attachment  the  responsibility  rests 
with  them  and  they  are  liable  to  an  injured  party  for  neglect  or  improper 
performance. 6  Propertj-  seized  by  them  must  be  kept  free  from  injury. 7 
While  a  subpoena  for  a  witness  s  or  a  notice  to  a  party  may  be  served  by 
a  private  person,^  original  process  must  be  served  by  the  marshalio  or  his 

isDeficiency  appropiiation  act  Mar.  afnited  States  v.  Fullhart.  47  Fed. 

3,  ISnn.  c.   427.   30  Stat.   1214.  S02. 

isPnst.  §  643.  CBroderick  v.  Brown.  68  Fed.  346. 

20United    States    v.    Strobach.    48  "Burke  v.  The  Briir  Rich.    1    Cliff. 

Fed.  902.  .109.  Fed.  Cas.  Xo.  2.162. 

2United  States  v.  Fullhart.  47  Fed.  f^Cordon    v.    Scott,    Fed.    Cas.    No. 

802.  5.620.  2  X.  B.  R.  86. 

sLevv  Ct.  V.  Ringgold.  5  Pet.  454.  sSchwabacher  v.  Reillv.  2  Dill.  127, 

8  L.  ed.   188.  Fed.   Cas.  Xo.   12,501. 

lUiiited  States  v.  Harris,  Fed.  Cas.  i  oSchwabaeher    v.    Reillv,    2    Dill. 

No.  15,313.  127.  Fed.  Cas.  Xo.  12,501.  ' 

633 


§   645  UNITED    STATES   MARSHALS.  [Code  Fed. 

deputy.ii  A  marshal  is  liable  for  false  imprisonment  for  the  arrest  of  a 
person  not  named  or  described  in  the  warrant. 12  He  is  liable  also  for  at- 
taching property  of  a  person  not  named  in  the  writ.is  for  the  delivery  of 
attached  property  to  the  wrong  person,!*  and  for  the  death  of  a  prisoner 
whom  he  knowingly  instructed  to  the  care  of  an  unfit  deputy. is  If  he 
receives  bank  notes  in  satisfaction  of  execution  he  is  liable  to  the  judg- 
ment creditor  in  lawful  aoney.is  He  cannot,  however,  be  held  for  the 
escape  of  prisoners  regularly  committed  to  jail. 1 7  The  equity  rules  pro- 
vide for  service  of  process  by  the  marshal. 

§  645.     Duty  to  provide  court  rooms. 

There  are  occasional  provisions  of  law  making  it  the  duty  of 
the  marshal  for  a  district  to  provide  court  rooms  for  the  ocupancy 
of  the  court  and  its  officers.  Thus  the  act  creating  the  circuit  court 
of  appeals  made  it  the  duty  of  the  marshals  of  the  several  districts 
where  that  court  is  held  to  provide  court  rooms  with  the  approval 
of  the  Attorney  General,  and  pay  incidental  expenses,  either  in 
public  buildings  of  the  United  States  where  possible,  or  if  not,  then 
by  leasing  rooms  elsewhere.^''  So  also  another  act  of  the  same  date 
relating  to  the  northern  judicial  district  of  Georgia,  required  the 
marshal  to  provide  suitable  rooms  for  the  occupancy  of  the  circuit 
and  district  courts  and  their  officers.^^ 
Author's  section. 

§  646.     Duty  to  execute  awards  of  foreign  consuls. 

The  marshals  of  the  United  States  shall  serve  all  such  process 
[to  carry  into  effect  awards  or  decrees  of  foreign  consuls],  and 
dc  all  other  acts  necessary  and  proper  to  carry  into  effect  the  prem- 
ises, under  the  authority  of  the  said  courts  and  commissioners  [i. 
e.  district  and  circuit  courts  and  circuit  court  commissioners]. 
Part  of  R.  S.  §  728,  U.  S.  Comp.  Stat.  1901,  p.  584. 

§  647.  —  returns  to  Treasury  on  executions  for  money  due  Unit- 
ed States. 

Every  marshal  shall,  within  thirty  days  before  the  commencement 

11  See     United    States    v.    Tinkle-  leGivin   v.    Breedlove,   2   How.   ,34, 

paugh,  3  Blatchf.  425,  Fed.  Cas.  No.  11  L.  ed.  170. 

16,526.  i^United  States  v.  Hudson,  1  Hask. 

i2West    v.    Cabell,    153    U.    S.    85,  527,  Fed.  Cas.  No.   15,412;   Randolph 

38  L.  ed.  643,  14  Sup.  Ct.  Rep.  752.  v.  Donaldson,  9  Cranch,  76.  3  L.  ed. 

i3Lammon  v.  Feu^ier,  111  U.  S.  18,        T'qo      en       *  tvt  _    o    icm    „    -1- 
00  T       J    00-     1   a         f^i.    T3        .-,Qo  i9See  §  9,  act  Mar.  3,  181)1.  c.  oh, 

28  L.  ed.  33/,  4  Sup.   Ct.  Rep.   286;    op  o.    .    o-yn    tt    q    n^,J^    «+.f    moi 

„,.  T    rr      •         =:i      t:^    j       mi       r>     n       2o    Stat.    0^9,    b.    b.    Lomp.    btat.    I'JUl, 

Wise   V.    Jpffens.   51    Fed.    641,    2    C.  ---,  ' 

^-  ^-  *'^-  2  0 Act  Mar.  3,  1891.  c.  560,  §  41.  2() 

i4Bernard     v.  Bowe,     41   Fed.   31.    gtat.    1110,   U.    S.   Comp.   Stat.    1901, 
i5Asher  v.  Cabell,  50  Fed.  818.  p.  339. 

634 


Procedure]  VARIOUS    DUTIES  §  650 

of  each  term  of  the  circuit  and  district  courts  in  his  district,  make 
returns  to  the  Solicitor  of  the  Treasury  of  the  proceedings  had  upon 
all  writs  of  execution,  or  other  process  which  have  been  placed  in 
his  hands  for  the  collection  of  moneys  adjudged  and  decreed  to  the 
United  States  in  said  courts,  respectively. 
R.  S.  §  791,  U.  S.  Comp.  Stat.  1901,  p.  610. 

§  648.  — returns  to  Postoffice  Department  on  executions  in  post- 
office  cases. 
Every  marshal  to  whom  any  execution  upon  a  judgment  in  any 
suit  for  moneys  due  on  account  of  the  Postoffice  Department  has 
been  directed,  shall  make  returns  to  the  sixth  auditor,  at  such  times 
as  he  may  direct,  of  the  proceedings  which  have  talvon  place  upon 
the  said  process  of  execution. 

R.  S.  §  792,  U.  S.  Comp.  Stat.  1901,  p.  010. 

The  duty  of  the  marshal  in  executing  attachments  in  postal  cases  i; 
provided  in  another  section.2  The  sixth  auditor  above  mentioned  is  desig- 
nated auditor  for  the  Postoffice  Department  by  an  act  of  1894.3 

§  649.  —  returns  to  Department  of  Justice  on  executions  in  post- 
office  cases. 

The  United  States  marshal  to  whom  [execution  on  a  judgment  in 
government  suit  for  postoffice  moneys]  ...  is  directed  shall 
make  returns  of  the  proceedings  thereon  to  the  Department  of  Jus- 
tice at  such  times  as  it  may  direct. 

Part  of  R.  S.  §  775,  U.  S.  Comp.  Stat.  1901,  p.  604. 

§  650.     Duty  as  to  places  of  confinement  of  prisoners. 

In  a  State  where  the  use  of  jails,  penitentiaries,  or  other  houses 
is  not  allowed  for  the  imprisonment  of  persons  arrested  or  commit- 
ted under  the  authority  of  the  United  States,  any  marshal  in  such 
State,  under  direction  of  the  judge  of  the  district,  may  hire,  or 
otherwise  procure,  within  the  limits  of  such  State,  a  convenient 
place  to  serve  as  a  temporary  jail. 

R.  S.  §  5537,  U.  S.  Comp.  Stat.  1901,  p.  3719. 

R.  S.  §  5540  and  an  act  of  1891  <  deal  with  the  duties  of  a  marshal  in  tne 
transportation  of  prisoners  to  the  penitentiary. 

2Post,  §  1401.  ■•Act  Mar.  3,  1891,  c.  529,   §  5,  26 

3§  3,  act  July  1.  1894,  U.  S.  Comp.  Stat.  839,  U.  S.  Comp.  Stat.  1901, 
Stat.  1901,  p.  154.  p.  3726. 

635 


S   651  UNITED    STATES    MARSHALS.  [Code  Fed. 

§  651.  Duty  to  make  other  provision  for  safekeeping  prisoners. 
The  marshal  shall  make  such  other  provision  as  he  may  deem  ex- 
pedient and  necessary  for  the  safe-keeping  of  the  prisoners  arrested 
or  committed  under  the  authority  of  the  United  States,  until  perma- 
nent provision  for  that  purpose  is  made  by  law. 
R.  S.  §  5538,  U.  S.  Comp.  Stat.  1901,  p.  3719. 

§  652.  — to  prosecute  for  violations  of  law  as  to  transport  of 
animals. 

It  shall  be  the  duty  of  all  United  States  marshals,  their  deputies 
and  subordinates,  to  prosecute  all  violations  [of  the  law  requiring 
animals  in  transport  to  be  fed,  watered,  unloaded,  etc.,]  which  come 
to  their  notice  or  knowledge. 

Part  of  R.  S.  §  4389,  U.  S.  Comp.  Stat.  1901,  p.  2997. 

§  653.     Duty  in  deportation  of  Chinese. 

Such  order  of  deportation  [i.  e  of  a  Chinese  laborer]  shall  b'* 
executed  by  the  United  States  marshal  of  the  district  within  which 
such  order  is  made,  and  he  shall  execute  the  same  with  all  con- 
venient dispatch;  and  pending  the  execution  of  such  order  such 
Chinese  person  shall  remain  in  the  custody  of  the  United  States 
marshal,  and  shall  not  be  admitted  to  bail. 

Part  of  §  2,  act  Nov.  3,  1893,  c.  14,  28  Stat.  18,  U.  S.  Comp.  Stat.  1901, 
p.  132.3. 

§  654.     Duty  to  deliver  offender's  body  for  dissection. 

The  marslial  who  executes  such  judgment  [of  death  upon  con- 
viction of  murder,  accompanied  by  an  order  for  the  delivery  of  the 
offender's  body  to  a  surgeon  for  dissection]  shall  deliver  the  body, 
after  execution,  to  such  surgeon  as  the  court  may  direct. 
Part  of  R.  S.  §  5340,  U.  S.  Comp.  Stat.  1901,  p.  362S. 

§  655.     Duty  of  marshal  in  removing  alien  enemies. 

When  an  alien  enemy  is  required  by  the  President,  or  by  order  of 
any  court,  judge  or  justice,  to  depart  and  to  be  removed,  it  shall  be 
the  duty  of  the  marshal  of  the  district  in  which  he  shall  be  appre- 
hended to  provide  therefor,  and  to  execute  such  order  in  person, 
or  by  his  deputy,  or  other  discreet  person  to  be  employed  b\'  him, 
by  causing  a  removal  of  such  alien  out  of  the  territory  of  the  United 
States ;  and  for  such  removal  the  marshal  shall  have  the  warrant  of 

036 


Procedure]  MISCELLANEOUS  DUTIES.  §   637 

the  President,  or  of  the  court,  judge  or  justice  ordering  the  same,  as 
the  case  may  be. 

R.  S.  §  4070,  U.  S.  Comp.  Stat.  1901,  p.  2763. 

§  656.  —  to  seize  piratical  vessels. 

'i'ae collectors  .  .  .  surveyors  .  .  .  and  the  marshals  of 
the  several  judicial  districts  within  the  United  States,  shall  seize 
any  vessel  or  boat  built,  purchased,  fitted  out,  or  held  as  mentioned 
in  section  4297  [regarding  seizure  of  piratical  vessels]  which  may 
be  found  within  their  respective  ports  or  districts,  and  to  cause 
the  same  to  be  proceeded  against  and  disposed  of  as  provided  by  that 
section. 

R.  S.  §  4299,  U.  S.  Comp.  Stat.  1901,  p.  2952. 
This  section  was  enacted  in  1861.7 

§  657.     Miscellaneous  duties  imposed  on  marshals. 

In  addition  to  the  statutory  provisions  already  set  forth,  other 
enactments  prescribe  various  duties  to  be  performed  by  marshals. 
Thus  the  law  governing  the  militia  called  into  actual  service  of  the 
United  States  requires  the  marshal  to  levy  fines  imposed  by  court 
martial,  or  commit  the  offenders  to  jail  in  default  thereof ;  and  to 
pay  over  the  fines  to  the  Treasury.^  The  enactments  subsequent 
to  the  Civil  War  for  the  protection  of  civil  rights,  especially  re- 
quired marshals  and  their  deputies  to  institute  proceedings  against 
every  person  violating  such  laws  and  cause  their  arrest  and  to  obey 
and  execute  all  warrants  or  other  process  in  that  behalf.^  A  section 
of  the  Eevised  Statutes  respecting  seizure  of  American  vessels  un- 
lawfully importing  coolies  requires  any  such  vessel  to  be  delivered 
over  to  the  marshal  of  the  district.^  "^  The  section  providing  for 
the  summary  distress  warrants  against  revenue  collectors  in  default 
imposed  duties  in  the  levy  thereof  and  sale  thereunder,  upon  the 
marshal. ^1  So  also  the  marshal  is  required  to  obliterate  tax-paid 
stamps  on  liquor  forfeited  to  the  government.^  ^  The  law  as  to  pro- 
ceedings in  prize  causes  imposes  a  variety  of  duties  upon  the  mar- 

7 Act  Aug.  5.  1861.  c.  18,  §  3,  12  336,  U.  S.  Comp.  Stat.  1901,  pp.  1260, 
Stat.  315.  1264,  1265,  3713. 

ST.     Q     SR    ^rrn     ^rcn     tt     q     <-  ^"R-    S.       2163,    U.    S.    Comp.    Stat. 

9f!f-;oJ-     utn  ^"P-    1^01'  P-  1284. 

otat.  lym,  p.  ii6V.  iiPost  §§  2419,  2420,  2085. 

9See  R.  S.  §§  1982,  1985,  5517,  also        12R.  S.   §   3334,  U.  S.  Comp.  Stat. 

act  Mar.  1,  1875,  c.  114,  §  3,  18  Stat.    1901,  p.  21&3. 

637 


§  G58  UNITED    STATES   MARSHALS.  [Code   Fed. 

shal,  which  are  not  set  forth  at  length  here/^  as  well  as  a  duty 
to  pay  any  witness  fees  all  owed. i'*  The  marshal  in  the  District  of 
Columbia  is  required  to  post  the  names  of  servants  for  foreign  pub- 
lic ministers  in  an  accessible  place.^'^  Other  duties  imposed  will  be 
found  among  the  cross  refei-ences  in  a  preceding  section.^'' 

§  658.     Treasury  Department  rules  as  to  suits  by  United  States 
for  moneys. 

The  Solicitor  of  the  Treasury  shall  establish  such  regulations,  not 
inconsistent  with  law,  .  .  .  with  the  approbation  of  the  At- 
torney General,  for  the  observance  of  district  attorneys  and  mar- 
shals respecting  suits  in  which  the  United  States  are  parties,  as 
may  be  deemed  necessary  for  the  just  responsibility  of  those  officers, 
and  the  prompt  collection  of  all  revenues  and  debts  due  and  accru- 
ing to  the  United  States.  But  this  section  does  not  apply  to  suits  for 
taxes,  forfeitures  or  penalties  arising  under  the  internal  revenue 
laws. 

R.  S.  §  377,  U.  S.  Comp.  Stat.  1901,  p.  212. 

By  R.  S.  §  32151  s  the  commissioner  of  internal  revenue  has  similar  power 
to  prescribe  rules  in  suits  under  internal  revenue  laws  to  which  the  United 
States  are  parties. 

§  659.     Custody    of   goods    seized    under   revenue   laws. 

Any  goods,  wares,  merchandise,  articles  or  objects  which  may  be 
seized,  under  the  provisions  of  section  thirty-four  hundred  and  fifty- 
tliree  [Eevised  Statutes],  by  any  collector  or  deputy  collector,  may, 
at  the  option  of  the  collector,  be  delivered  to  the  marshal  of  the  dis- 
trict, and  remain  in  the  care  and  custody  and  under  the  control  of 
said  marshal,  until  he  shall  obtain  possession  by  process  of  law. 
Part  of  R.  S.  §  3458,  U.  S.  Comp.  Stat.  1901,  p.  2281. 

§  660.     Powers  of  marshals  in  executing  laws. 

The  marshals  and  their  deputies  shall  have,  in  each  State,  the 
same  powers,  in  executing  the  laws  of  the  United  States,  as  the  sher- 
iffs and  their  deputies  in  such  State  may  have,  by  law,  in  executing 
the  laws  thereof. 

R.  S.  §  788,  U.  S.  Comp.  Stat.   1901,  p.  G08. 

isSee  R.  S.   §§  4623,  4028.  4G29.  leAnte,  §  G13. 

i4See  post,   §  738.  isU.  S.  Comp.  Stat.  1901,  p.  2084. 

isSee   K.   S.    §§   4065,   40GG,   U.   S. 
Comp.  Stat.  1901,  p.  2761. 

638 


Procedure]  POWERS   AND    DUTIES.  §   662 

Under  the  above  provision  a  marshal  in  executing  Federal  laws  has  the 
power  of  a  sheriff  in  executing  State  laws.i  Thus  he  or  his  deputy  may 
make  an  arrest  without  warrants  or  arrest  a  person  with  liquor  in  his 
possession,3  or  appoint  a  person  to  perform  special  service,^  where  the  sheriff 
of  the  particular  State  would  have  such  power.  So  also  he  has  the  same 
power  to  keep  the  peace  of  the  United  States  that  a  sheritY  has  to  keep 
the  peace  of  the  State. 5  The  section  apparently  confers  an  additional 
right  in  the  manner  of  appointment  and  qualification  of  a  deputy  marshal, 
and  such  officer  may  act  without  taking  oath,  where  none  is  required  of 
the  deputy  sheriff. 6  It  should  not  be  construed,  however,  as  restricting  the 
power  of  the  marshal  to  that  of  the  sheriff.  So,  since  under  the  Federal 
law  a  marshal  may  make  a  deputation  for  the  service  of  writs,  the  power 
of  the  sheriff  in  that  respect  is  immaterial."  The  section  refers  only  to  the 
district  in  which  the  marshal  is  appointed,  and  gives  him  no  authority  to 
act  outside  it.s  Thus,  when  found  in  another  district  he  may  be  held  for 
carrying  concealed  w'eapons,  although  priA'ileged  to  do  so  in  his  own  dis- 
trict.9  The  section  does  not  apply  to  policemen. lo  The  removal  of  a 
prisoner  by  the  marshal  from  a  county  jail  to  the  place  of  trial  without 
due  process,  while  unsafe  practice,  is  not  censurable  if  the  practice  of  the 
State  sheriff.ii 

§  661.     Other  powers  of  marshals. 

By  E.  S.  §§  3990,  399113  the  marshal  or  his  deputy  is  empowered 
to  seize,  detain  and  forfeit  letters  carried  contrary  to  law.  The 
bankruptcy  law  confers  certain  powers  as  to  custody  of  bankrupt 
proporty.i^  The  marshal  is  empowered  in  certain  cases  to  stay  a 
warrant  of  arrest  in  proceedings  in  rem  in  admiralty .^^ 
Author's  section. 

§  662.     Forbidden  to  accept  gifts,  etc.,  to  compromise  revenue 

suits. 

Every  district  attorney  or  marshal  who  demands,  or  accepts,  or 

attempts  to  collect,  directly  or  indirectly,  as  payment  or  gift  or 

otherwise,  any  sum  of  money  or  other  property  of  value  for  the 

lEx  parte  Ringgold,  3  Cr.  C.  C.  86,  7The  Tug  Gorgas,  10  Ben.  4G0,  Fed. 

Fed.  Cas.  No.  11.841.  Cas.  Xo.  4,585. 

2ln  re  Acker.  66  Fed.  290.     See  also  *In  re  Anderson,  94  Fed.  487. 

United  States  v.  Fuelhart,   106  Fed.  nValker  v.  Lea.  47  Fed.  649. 

914.  lOBad  Elk  v.  United  State's.  177  U, 

sCarico  v.  Wilmore.  51  Fed.  196.  S.   535,   44   L.   ed.   877,   20    Sup.    Ct. 

Rep    7''9 

4Hyman  v.  Chales,  12  Fed.  855.  /iVnitea  States  v.  Harden,  10  Fed. 

5In  re  Xeagle.  135  U.  S.   1.  34   L.  809. 

ed.  55.  10  Sup.  Ct.  Rep.  658.  isu.  S.  Comp.  Stat.  1901,  p.  2715. 

sPuleston  v.  United  States,  85  Fed.  i^See  port  §  2200,  et  seq. 

677.  1  e; Post,  §  122. 

639 


§   GG3  UNITED    STATES    MARSHALS.  [Code   Fed. 

compromise,  adjustment  or  settlement  of  any  charge  or  complaint 
for  any  violation  or  alleged  violation  of  any  provision  of  the  in- 
ternal revenue  laws,  except  as  expressly  authorized  by  law  to  do 
so,  shall  be  held  to  be  guilty  of  a  misdemeanor,  and  shall  be  fined 
in  double  the  sum  or  value  of  the  money  or  property  received  or 
demanded  and  be  imprisoned  for  not  less  than  one  nor  more  than 
ten  years. 

R.  S.  §  3170,  U.  S.  Comp.  Stat.  1901,  p.  •201)3. 

§  663.  Unserved  process  surrendered  by  retiring  marshal  or  dep- 
uty. 
Hereafter  all  unserved  process  remaining  in  the  hands  of  a 
United  States  marshal  or  his  deputies,  when  the  marshal  ceases  to 
be  such,  shall  be  immediately  delivered  to  the  succeeding  marshal 
upon  request;  and  when  a  deputy  United  States  marshal  resigns  or 
is  removed  he  shall,  upon  request,  deliver  to  the  United  States 
marshal  for  the.  district  all  process  remaining  in  his  hands. 

Act  Mar.  3,  1899,  c.  -127,  30  Stat.  1237,    U.  S.  Comp.  Stat.  1901,  p.  609. 


C40 


CHAPTER  18. 

COMJnSSIO^TERS  AXD  OTHER  JUDICIAL  OFFICERS. 

§  671.  Appointment   and  duties  of  United   States   Commissioners — circuit 

commissioners  abolished. 

§  672.  — seal  of  commissioners. 

§  673.  Persons   disqualified   to   act   as   commissioners. 

§  674.  Are  governed  by  previous  law  applicable  to  circuit  commissioners. 

§  675.  Increase   in   number  of   commissioners,   for  purpose   of   civil   rights 

cases. 

§  676.  Powers  of  commissioners  to  administer  oaths. 

?  677.  Territorial    court    commissioners. 

§  678.  Powers  of  Territorial  commissioners. 

§  679.  Commissioners  to  administer  oaths  to  appraisers. 

§  680.  Power  of  Supreme  Court  to  appoint  a  reporter. 

§  681.  Duties    of    Supreme    Court    reporter — reports. 

§  682.  Reporter's  salary  and  price  of  reports. 

§  683.  Marshal's  assistants  and  messengers  of  Supreme  Court. 

§  684.  Bailiff  and  messenger  of  Court  of  Claims. 

§  68.5.  — their  salaries. 

§  686.  Criers,  bailiffs  and  messenger  of  Court  of  Claims. 

§  687.  Circuit  and  district  court  criers — jury  attendants. 

§  688.  — when  deemed  in  actual  attendance, — not  employed  in  vacation. 

§  689.  Court  stenographers. 

§  690.  Masters  in  chancery. 

§  691.  Referees   and   trustees  in   bankruptcy. 

§  671.     Appointment  and  duties  of  United  States  Commissioners 

— circuit  commissioners  abolished. 

The  terms     ...     of  all  commissioners  of  the  circuit  courts 

.     .     .     shall  expire  on  the  30th  day  of  June,  1897 ;  and  such  office 

shall  on  that  day  cease  to  exist.     ...     It  shall  be  the  duty  of 

the  district  court  of  each  judicial  district  to  appoint  such  number 

of  persons,  to  be  known  as  United  States  commissioners,  at  such 

places  in  the  district  as  may  be  designated  by  the  district  court, 

which  United  States  commissioners  shall  have  the  same  powers  and 

perform  the  same  duties  as  are  now  imposed  upon  commissioners 

tif  the  circuit  courts.     The  appointment  of  such  United   States 

Fed.  Proc— 41.  641 


S   C71    [aj  COMMISSIONERS    AND   OTHER    OFFIOEUS.  [Code  Fed. 

commissioners  shall  be  entered  of  record  in  the  district  courts,  and 
notice  thereof  at  once  given  by  the  clerk  to  the  Attorney  General. 
That  such  United  States  commissioners  shall  hold  their  offices, 
respectively,  for  the  term  of  four  years,  but  they  shall  be  at  any  time 
subject  to  removal  by  the  district  court;  and  no  person  shall  at 
any  time  be  a  clerk  or  deputy  clerk  of  the  United  States  court  and 
a  United  States  commissioner  without  the  approval  of  the  Attor- 
ney General. 

Part  of  §  19  act  May  28,  189G,  c.  252,  29  Stat.  184,  U.  S.  Comp.  Stat. 
1901,  p.  499. 

[a]  In  general. 

By  §  24  of  the  same  act  the  foregoing  provision  was  declared  inapplicable 
to  Alaska  and  Indian  Territory. i  Other  provisions  of  the  act  require  them 
to  keep  records2  and  empower  them  to  issue  search  warrants  and  warrants 
of  arrest  in  internal  revenue  cases.s  The  fees  of  commissioners  are  treated 
of  in  the  chapter  on  fees.*  Provisions  respecting  tha  rendering  and  ap- 
proval of  commissioners'  accounts,5  the  taking  of  depositions  de  bene  esse; 6 
I  heir  power  to  hold  to  security  for  the  peace;'  to  issue  warrants  of  arrest, 
apprehend  fugitives  from  justice,  and  to  imprison  or  admit  to  bail; 9  and 
tlieir  powers  and  duties  in  Chinese  exclusion  casesiP  are  given  elsewhere. 
By  R.  S.  §  177811  circuit  court  commissioners  are  given  the  same  power  as 
justices  of  the  peace  in  the  taking  of  oaths  and  acknowledgments.  They 
may  also  take  final  proofs  in  timber  culture  entries. 12  By  R.  S.  §  728  U. 
S.  Comp.  Stat.  1901,  p.  584,  they  are  given  certain  powers  in  the  execution 
of  awards  of  foreign  consuls. 

[b]  Commissioners  in  Yellowstone  Park. 

The  act  for  the  government  of  the  Yellowstone  Park  provides  for  the  ap- 
pointment by  the  circuit  court  in  the  Wyoming  district,  of  a  commissioner 
resident  of  the  Yellowstone  Park,  and  with  certain  criminal  jurisdiction 
therein. 13  In  addition  to  the  fees  allowed  by  law  to  commissioners,  the 
appointee  in  the  Park  was  entitled  to  a  salary  of  $1,000  annually  by  thai 
act,  afterwards  increased  to  $1,500.1* 

§  672.  —  seal  of  commissioners. 

Each  United  States  commissioner  shall  provide  himself  with  an 

lOther  provisions  were  subsequent-        sPost,  §  1537. 
Iv  made  applicable  to  Indian  Terri-        loPost.    §    2407. 
t'ory.  but  not  this  one.     See  act  Feb.        nU.  S.  Comp.  Stat.  1901.  p.  1211. 
19,"  1897.  c.  265,  29  Stat.  597.  12 Act  Mar.  4.  1896.  c.  40,  29  Stat. 

2Ante,  §  395.  43.  U.  S.  Comp.  Stat.  1901.  p.  1537. 

sPost.  §  1542.  isSee  §  5.  act  Mav  7,  1894.  c.  72, 

4Post,  §  723.  28  Stat.  74.  U.  S.  Comp.  Stat.   1901, 

5 Ante.  §  449.  p.  1503. 

ePost  §  1762.  i4Aet  Apr.  17,  1900,  c.  192,  §  1,  31 

7Post,  §  1593.  Stat.  133. 

642 


II 


Frocedure]  COMMISSIONERS.  §  674 

official  impression  seal,  to  be  prescribed  by  the  Attorne}'  General, 
which  said  seal  shall  be  affixed  to  each  jurat  or  certificate  of  the 
official  acts  of  said  commissioner,  but  no  increase  of  fees  shall  be 
allowed  by  reason  thereof. 

Act  June  28,  1906,  c.  3573,  34  Stat.  546. 

§  673.     Persons  disqualified  to  act  as  commissioners. 

No  marshal  or  deputy  marshal,  attorney  or  assistant  at- 
torney of  any  district,  jury  commissioner,  clerk  of  marshal,  no 
bailiff,  crier,  juror,  janitor  of  any  government  building,  nor  any 
civil  or  military  employee  of  the  government,  except  as  in  this  act 
provided,  and  no  clerk  or  emploA^ee  of  any  United  States  justice  or 
judge,  shall  have,  hold  or  exercise  the  duties  of  the  United  States 
commissioner. 

Part  of  §  20  act  ilay  2S,  1896,  c.  252,  29  Stat.  184,  U,  S.  Comp.  Stat. 
1901,  p.  501. 

The  section  also  forbids  such  officers  acting  as  receivers. is  United  States 
clerks  and  their  deputies  may  act  as  commissioners,  but  only  with  the  ap- 
proval of  the  attorney-general. 16 

§  674.     Are  governed  by  previous  laws  applicable  to  circuit  com- 
missioners. 
All  acts  and  parts  of  acts  applicable  to  commissioners  of  the  cir- 
cuit courts,  except  as  to  appointment  and  fees,  shall  be  applicable 
to  United  States  commissioners  appointed  under  this  act. 

Part  of  §  19,  act  May  28,  1896,  c.  252,  29  Stat.  184,  U.  S.  Comp.  Stat. 
1901,  p.  499. 

The  powers  and  duties  of  United  States  commissioners  are  found  in  the 
earlier  provisions  concerning  circuit  court  commissioners. it  the  above  act 
conferring  no  power  except  authority  to  administer  oaths. is  Their  powers 
are  stricti  juris,  and  there  is  no  provision  conferring  on  them  authority 
to  punish  for  contempt. 1 9  The  Supreme  Court  has  made  the  following 
summary'  of  the  powers  and  duties  of  the  circuit  court  commissioners: 
"To  issue  warrants  for  offenses  against  the  United  States;  to  cause  the 
offenders  to  be  arrested  and  imprisoned  or  bailed  for  trial,  and  to  order 
the  removal  of  offenders  to  other  districts  (Rev.  Stat.  §  1014)  :  to  hold  to 
security  of  the  peace  and  for  good  behavior  (§  727);  to  carry  into  effect 
the  award  or  arbitration  or  decree  of  any  consul  of  any  foreign  nation; 
to  sit  as  judge  or  arbitrator  in  such  differences  as  may  arise  between  the 

isSee  post.  §  1123.  isPost.   §  676. 

ifiSee  "ante.   §  671.  i9In  re  Perkins.  100  Fed.  954;  Unit- 

i7ln  re  P;^rkins,  100  Fed.  953.  ed  States  v.  Beavers,  125  Fed.  778. 

643 


§   675  COMMISSIONERS   AND    OTHER    OFFICERS.  [Corlc   Fed. 

(1  plains  and  crews  of  any  vessels  belonging  to  the  nations  whose  interests 
;ire  committed  to  its  cliarge:  and  to  enforce  obedience  by  imprisonment 
until  such  award,  arbitration  or  decree  is  complied  with  (§  728) ;  to  take 
bail  and  affidavits  in  civil  cases  (8  045);  to  discharge  poor  convicts  im- 
prisoned for  nonpayment  of  fines  (§  1042);  to  take  oaths  and  acknowledg- 
ments (§  177S);  to  institute  prosecutions  under  the  laws  relating  to  crimes 
against  the  elective  francliise.  and  civil  rights  of  citizens,  and  to  appoint 
persons  to  execute  warrants  thereunder  (§§  1982  to  1985);  to  issue  search 
'.\arrants  authorizing  internal  revenue  officers  to  search  premises  where  a 
a'raud  upon  the  revenue  has  been  committed  (§  3462)  ;  to  issue  warrants  for 
deserting  foreign  seamen  (§  5280);  to  summon  masters  of  vessels  to  ap- 
|jear  before  iiim  and  show  cause  why  process  should  not  issue  against  such 
vessel  (§  4546)  ;  to  issue  warrants  for  and  examine  persons  charged  with 
lieing  fugitives  from  justice  (§§  5271  and  5272),  and  to  take  testimonj 
.and  proof  of  debt  in  bankruptcy  proceedings  (§8  5003  and  5076). 20  In 
considering  circuit  court  commissioners  the  courts  have  held  that  while 
(exercising  judicial  functionsi  they  were  not  judges  within  the  constitutional 
..sense,2  and  had  no  fixed  tenure  of  office  being  removable  at  the  court'>. 
legal  discretion. 3  A  United  States  commissioner  is  held  to  be  a  judge  with 
in  the  meaning  of  the  sixth  section  of  the  Chinese  exclusion  act  of  1892,*  and 
;an  order  of  deportation  of  a  Chinese  may  be  made  by  him. 5  The  proceed- 
ings when  begun  before  the  commissioner  in  such  cases  are  independent  of 
any  court  and  hence  a  district  court  has  no  power  to  issue  a  dedinius  potes- 
tatem  to  take  testimony.*! 

§  675.     Increase  in  number  of  commissioners,  for  purpose  of  civil 
rights  cases. 

The  circuit  courts  of  the  United  States  and  tlie  district  courts 
\)f  the  Territories,  from  time  to  time,  shall  increase  the  number 
<if  commissioners,  so  as  to  afford  a  speedy  and  conveni(»nt  means 
for  the  arrest  and  examination  of  persons  charged  with  the  crimes 
referred  to  in  the  preceding  section  [i.  e.,  against  civil  rights],  and 
such  commissionei-s  are  autliorized  and  required  to  exercise  all 
the  powers  and  duties  conferred  on  them  herein  with  regard  to  such 
offenses  in  like  manner  as  they  are  authorized  by  law  to  exercise 
with  regard  to  other  offenses  against  the  laws  of  the  United  States. 
R.  S.  §  1983,  U.  S.  Comp.  Stat.  1901.  p.  1204. 

20United   States  v.   Allred.   155   U.  2Todd  v.  United  States.   158  U.  S. 

S.  pp.  594-595.  39  L.  ed.  274.  15  Sup.  278.  39  L.   ed.  982.   15  Sup.  Ct.  Rei.. 

Ct.  Rep.  231.     See  also  statement  by  889. 

Justice  Field.  United  States  \-.  Sclui-  -Un  re  Coniinissioners.  65  P\^d.  31 -r. 

mann.  2  Abb.  U.  S.  523.  7  Sawy.  2.39.  4 In  re  Wong  Fock.  81   Fed.  558. 

Fed.  Cas.  No.  16,235.  and  note" under  sin  re  Tsu  Mee.  81  Fed.  562. 

U.  S.  V.  Horn  Tling.  48  Fed.  038-640.  eUnited    States    v.    Horn    Hing.    4S 

lUnited  States  v.  Jones.  134  U   8.  Fed.  635. 
486,  33  L.  ed.  1008,  10  Sup.  Ct.  Rep. 
G15. 

644 


riocerlure]  TERRITORIAL   COMMISSIONERS.  §   67S 

This  provision  is  made  applicable  to  United  States  commissioners  under 
the  act  of  1896  by  a  proviso  of  that  act  already  stated.'  By  R.  S.  §  1982 
commissioners  and  otlier  officers  are  specially  charged  with  the  duty  of 
enforcing  the  civil  rights  laws.  This  provision  does  not  authorize  the 
appoiittment  of  commissioners,  such  authorization  already  existing.^  it 
merely  directs  an  increase  in  the  number. 9 

§  676.     Powers  of  commissioners  to  administer  oaths. 

United  States  commissioners  .  .  .  are  hereb}'  authorized  to 
administer  oaths. 

Part  of  §  19  act  May  28,  1896,  c.  252,  29  Stat.  184,  U.  S.  Comp.  Stat. 
1901,  p.  499. 

By  R.  S.  §  945  the  power  to  take  affidavits  was  conferred  upon  circuit 
court  commissioners.! 0 

§  677.     Territorial  court  commissioners. 

The  chief  justice  of  the  court  exercising  Federal  jurisdiction  in 
the  Territories  shall  have  power  to  appoint  commissioners  in  the 
several  judicial  districts,  to  be  known  when  appointed  as  United 
States  court  commissioners.  .  .  .  Xo  commissioner  sliall  be  ap- 
pointed who  resides  within  thirty  miles  of  any  local  land  office,  nor 
shall  any  commissioner  be  appointed  who  resides  within  tliirtv 
miles  of  any  other  commissioner. 

§§  1  and  3  of  act  Mar.  2,  1895,  c.  174,  28  Stat.  744,  U.  S.  Comp.  Stat. 
1901,  p.  1397. 

The  powers  of  these  officers  are  stated  in  the  next  section.  They  are  not 
the  same  as  the  commissioners  authorized  by  the  act  of  1896,  who  are  also 
appointed  in  the  Territories  except  Alaska. 

§  678.     Powers  of  Territorial  commissioners. 

Said  commissioners  [provided  in  the  preceding  section]  sliall 
have  power,  and  it  shall  be  their  duty  on  application  by  proper 
per.son,  to  administer  the  oaths  in  preliminary  affidavits  and  final 
proofs  required  under  tlie  homestead,  pre-emption,  tiiiihn-  culture. 
and  desert-land  laws  in  their  respective  districts,  in  like  manner 
as  provided  for  in  reference  to  United  States  circuit  court  commis- 
sioners, in  the  act  of  May  26,  1890.  Twenty-sixth  Statutes  at 
Large,  page  one  hundred  and  twenty-one. 

§  2,  act  Mar.  2,  1895,  c.  174,  28  Stat.  744,  U.  S.  Comp.  Stat.  1901.  p.  1398. 

'Ante.  §  674.  lOSee  post,  S  1555,  and  eases  there 

8R.  S.  §  627.  cited. 

.     sin  re  Upchurcii.  .38  Fed.  26. 

645 


§   G79  COMMISSIONERS     AND     OTIIEU     OFFICERS.  [Code   Fed. 

§  679.     Commissioners  to  administer   oaths  to   appraisers. 

Any  district  judge  may  appoint  commissioners,  before  whom  ap- 
praisers of  vessels,  or  goods  and  merchandise  seized  for  breaches 
of  any  law  of  the  United  States,  may  be  sworn;  and  such  oaths, 
so  taken,  shall  be  as  effectual  as  if  taken  before  the  judge  in  open 
court. 

R.  S.  §  570,  U.  S.  Comp.  Stat.  1901,  p.  463. 

This  provision  was  enacted  in  1794.12  The  appointment  of  appraisers 
mentioned  herein  is  authorized  by  R.  S.  §  938.1  ^ 

§  680.     Power  of  Supreme  Court  to  appoint  a  reporter. 

The  Supreme  Court  shall  have  power  to  appoint  .  .  .  a  re- 
porter of  its  decisions. 

Part  of  R.  S.  §  677,  U.  S.  Comp.  Stat.  1901,  p.  559. 

The  section  also  empowers  the  court  to  .appoint  a  clerk i*  and  a 
marshal.15 

§  681.     Duties  of  Supreme  Court  reporter — reports. 

The  reporter  shall  cause  the  decisions  of  the  Supreme  Court  made 
during  his  office  to  be  printed  and  published  within  eight  months 
after  they  are  made ;  and  within  the  same  time  shall  deliver  three 
hundred  copies  of  the  volumes  of  said  reports  to  the  Secretary  of 
the  Interior.  And  he  shall,  in  any  year,  when  he  is  so  directed 
by  the  court,  cause  to  be  printed  and  published  a  second  volume  of 
said  decisions,  of  which  he  shall  deliver,  in  like  manner  and  time, 
three  hundred  copies. 

R.  S.  §  681,  U.  S.  Comp.  Stat.  1901,  p.  560. 

By  an  act  of  190216  the  publishers  of  the  official  edition  of  the  Supreme 
Court  reports  are  further  required  to  deliver  to  the  Secretary  of  the  In- 
terior one  hundred  and  four  copies  of  each  volume  since  volume  183;  as 
well  as  to  deliver  the  seventy-six  additional  copies  which  an  act  of  188917 
required  the  reporter  to  deliver,  and  twenty-five  of  them  are  required  to 
be  deposited  in  the  Supreme  Court  library.  Provision  is  made  for  a  per- 
manent appropriation  to  pay  the  reporter  for  the  copies  of  the  second 
volume  above  mentioned. is 

12 Act  June  9,   1794,  c.  64,   §    1.   1  .52  Stat.  631,  U.  S.  Comp.  Stat.  1903, 

Stat.  395.  p.  92. 

13U.   S.   Comp.  Stat.   1901,   p.   690.        ^'A^t  Feb.  12,  1889,  c.  135,  §  2.  25 

,,.,„„„  ^  Stat.  661,  U.  S.  Comp.  Stat.  1901,  p. 

14 Ante,  §  559.  ^p.-,  '  ^  '^ 

15 Ante,  §  614.  TsR.  S.   §   3689,  U.  S.  Comp.  Stat. 

i6Act   July   1,   1902,  c.    1355,    §    3.    1901.  p.  2470. 

646 


Procedure]  REPORTERS,    BAILIFFS    AND    MESSENGERS.  §  684 

§  682.     Reporter's  salary  and  price  of  reports. 

The  reporter  of  the  decisions  of  the  Supreme  Court  of  the 
United  States  shall  be  entitled  to  receive  from  the  Treasury  an 
annual  salary  of  four  thousand  five  hundred  dollars  when  his  report 
of  said  decisions  constitutes  one  volume,  and  an  additional  sura 
of  twelve  hundred  dollars  when,  by  direction  of  the  court,  he  causes 
to  be  printed  and  published,  in  any  year,  a  second  volume.  Said 
reporter  shall  be  annually  entitled  to  clerk-hire  in  the  sura  of  one 
thousand  two  hundred  dollars,  and  to  office  rent,  stationery,  and 
contingent  expenses  in  the  sum  of  six  hundred  dollars.  .  .  . 
The  volumes  of  the  decisions  which  said  court  shall  hereafter  pro- 
nounce shall  be  furnished  by  the  reporter  to  the  public  at  a  sum 
not  exceeding  two  dollars  per  volume,  and  the  number  of  volumes 
now  required  to  be  delivered  to  the  Secretary  of  the  Interior  shall 
be  furnished  by  the  reporter  without  any  charge  therefor. 

Part  of  §  1  act  Aug.  5,  1SS2,  c.  389,  22  Stat.  254,  U.  S.  Comp.  Stat.  1901, 
p.  561. 

This  provision  supersedes  R.  S.  §  682  so  far  as  the  latter  provision 
relates  to  the  salary  of  the  reporter  and  the  price  per  volume  of  reports. 
That  section,  however,  also  contains  a  provision  as  to  the  time  when  the 
salary  shall  be  paid  which  is  apparently  still  operative  and  is  as  follows: 
.  .  .  "Said  salary  and  compensation,  respectively,  shall  be  paid  only 
when  he  causes  such  decisions  to  be  printed,  published  and  delivered  within 
the  time  and  in  the  manner  prescribed  by  law. "20 

§  683.     Marshal's  assistants  and  messengers  of  Supreme  Court. 

With  the  approval  of  the  Chief  Justice  he  [i.  e.,  the  marshal  of 
the  Supreme  Court]  may  appoint  assistants  and  messengers  to 
attend  the  court,  with  the  compensation  allowed  to  officers  of  the 
House  of -Eepresentatives  of  similar  grade- 
Part  of  R.  S.  §  680,  U.  S.  Comp.  Stat.  1901,  p.  5G0. 
The  section  specifies  also  the  salary  which  the  marshal  shall  receive  and 
prescribes  his  duties. 2 

§  684.     Bailiff  and  messenger  of  Court  of  Claims. 

The   said    Court    [of   Claims]    shall   appoint     ...     a   bailiff 
and  a  messenger.     .     .     .     The  bailiff  shall  hold   his  office  for  a 
term  of  four  years,  unless  sooner  removed  by  the  court  for  cause. 
R.  S.  §  10.5.3,  U.  S.  Comp.  Stat.  UH)1.  p.  7:50. 
The  section  also  provides  for  a  clerk. 3 

20U.  S.  Comp.  Stat.  1901,  p.  560.  ^\nU\   §  5G2. 

2 Ante,  §  i;i.'). 

G47 


§  085 


COMMISSIONERS     AND     OTHER     OFFICERS. 


[Code  Fed. 


§  685.  —  their  salaries. 

The  salary  of  the  .  .  .  bailift'  [of  the  Court  of  Claims  shall 
be]  fifteen  hundred  dolllars  a  year,  and  of  the  messenger  eight 
hundi-ed  and  forty  dollars  a  year,  payable  quarterly  from  the 
treasury. 

K.  S.  §  1054,  U.  S.  Comp.  Stat.  1901,  p.  730. 

The  section  prescribes  also  the  salary  of  the  clerk  and  his  assistant.* 

§  686.     Criers,  bailiffs,  and  messenger  of  Circuit  Court  of  Appeals. 

The  marshals  of  the  several  districts  in  which  said  circuit  court 
of  appeals  may  be  held  shall,  under  the  direction  of  the  Attorney 
General  of  the  United  States  and  with  his  approval  .  .  .  pay- 
all  incidental  expenses  of  said  court,  including  criers,  bailiffs  and 
messengers.  .  .  .  The  .  .  .  criers  .  .  .  bailiffs  and 
messengers  [of  the  circuit  court  of  appeals]  shall  be  allowed  the 
same  compensation  for  their  respective  services  as  are  allowed  for 
similar  services  in  the  existing  circuit  courts. 

Part  of  §  9  act  Mar.  3,  1891,  c.  517,  26  Stat.  829,  U.  S.  Comp.  Stat.  1901, 
p.  552. 

The  statute  confers  no  authority  to  appoint  such  officers  other  than  is  to 
be  implied  from  the  foregoing.  Clerks  are  also  mentioned  in  the  section 
and  the  provision  as  to  them  is  considered  elsewhere.  5 

§  687.     Circuit  and  district  court  criers — jury  attendants. 

R.  S.  §  715^  provides  that,  "the  circuit  and  district  courts  may 
appoint  criers  for  their  courts,  to  be  allowed  the  sum  of  two  dol- 
lars per  day,  and  the  marshals  may  appoint  such  a  number  of  per- 
sons, not  exceeding  five,  as  the  judges  of  their  respective  courts 
may  determine,  to  attend  upon  the  grand  and  other  juries,  and 
for  other  necessary  purposes,  who  shall  be  allowed  for  their  services 
the  sum  of  two  dollars  per  day,  to  be  paid  by  and  included  in  the 
accounts  of  the  marshal,  out  of  any  money  of  the  United  States 
in  his  hands.  Such  compensation  shall  be  paid  only  for  actual  at- 
tendance, and  when  both  courts  are  in  session  at  the  same  time,  only 
for  attendance  on  one  court."  By  an  act  of  1905,  however,  it  is 
provided  that  after  the  passage  of  that  act  "the  per  diem  pay  of 
all  persons  employed  in  any  court  of  the  United  States  imder  sec- 


*Ante.  §  .ifi2. 
Bi^nte.  §  577V^ 


6U.  S.  Comp.  Stat.  1901,  p.  579. 


648 


Prcedure]  MASTERS    IX    CHANCERY.  §  690 

tion  seven  hundred  and  fifteen  of  the  Kevised  Statutes,  now  hxed  by 
law  at  two  dollars  a  day.  shall  be  three  dollars  a  day."^ 
Author's  section. 

Bailiffs  and  criers  appointed  under  R.  S.  §  715,  though  not  constitutional 
officers,  are  officers  of  the  court. s  They  are  entitled  to  their  per  dienis  on 
days  to  which  the  court  was  adjourned  by  order  of  the  judge,  although 
the  court  is  not  actually  opened. s  The  appointment  of  six  bailiffs  by  the- 
district  judge  holding  both  courts  is  not  unauthorized  by  R.  S.  §  715,1" 
and  service  of  subpoenas  by  bailiffs,  being  allowed  by  the  law  of  the  par- 
ticular State,  is  permissible.! i 

§  688.  —  when  deemed  in  actual  attendance, — not  employed  in. 
vacation. 

All  persons  employed  under  section  seven  hundred  and  fifteen 
of  the  Kevised  Statutes^-  shall  be  deemed  to  be  in  actual  attendance 
when  tliey  attend  upon  the  order  of  the  court:  Provided  .  .  .. 
no  such  person  shall  be  employed  during  vacation. 

Proviso  of  appropriation  act  June  30,  1906,  c.  3IJ14,  34  Stat.  755. 
This  provision  is  repeated  in  the  appropriation  acts  from  year  to  year.i3 

§  689.     Court  stenographers. 

As  \et  there  is  no  Federal  law  requiring  official  court  stenog- 
raphers in  the  Federal  courts,  although  recommendations  upon  the 
subject  have  been  made  to  Congress.^* 
Author's  section. 

§  690.     Masters  in  chancery. 

The  circuit  courts  may  appoint  standing  masters  in  chancery 
in  their  respective  districts  (a  majority  of  all  the  judges  thereof, 
including  the  justice  of  the  Supreme  Court,  the  circuit  judges,  and 
the  circuit  judge  for  the  districts  concurring  in  the  appointment), 
and  they  may  also  appoint  a  master  pro  hac  vice  in  any  particular 
case.  The  compensation  to  be  allowed  any  master  in  chancery  for 
his  services  in  any  particular  case  shall  be  fixed  by  the  circuit  court. 

7Act  Mar.  3.  1905.  c.  1487.  33  Stat.        i2Ante.  §  687. 
1259.  i3See   United  States  v.  Swift.   139 

^United  States  v.  McCabe,  129  Fed.    Fed.  228,   71   C.  C.  A.   .351. 
708,  64  C.  C.  A.  236.  i4Sce  Report  of  Commissioners  on 

oidem.     See  post,  S  688.  Revision  of  laws  respecting  jurisdic- 

i«United  States  v.  Swift.   139  Fed.    tion  of  courts,  etc.,  p.  22.  205. 
225,  71   C.  C.  A.  351. 

iiSwift  v.  United  Stntes.  12S  Fed. 
763. 

649 


§  G91  COMMISSIONERS   AND   OTHER   OFFICERS.  [Code  Fel. 

in  its  discretion,  having  regard  to  all  the  circumstances  thereof,  and 
the  compensation  shall  be  charged  upon  and  borne  by  such  of  the 
parties  in  the  cause  as  the  court  shall  direct.  The  master  shall  not 
retain  his  report  as  security  for  his  compensation;  but  when  the 
compensation  is  allowed  by  the  court,  he  shall  be  entitled  to  an 
attachment  for  the  amount  against  the  party  who  is  ordered  to  pa}' 
the  same,  if,  upon  notice  thereof,  he  does  not  pay  it  witldn  the 
time  prescribed  by  the  court. 

Supreme  Court  Equity  Rule  No.  82,  amended  April  16,  1894.14 

No  clerk  of  the  district  or  circuit  court  or  deputy  shall  be  appointed 
as  receiver  or  master  in  chancery,  unless  special  reasons  exist  therefor  which 
are  to  be  assigned  in  the  order  of  appointment.is  But  failure  to  assign 
such  reasons  is  not  reversible  error.is  The  appointment  and  compensation 
of  masters  is  considered  at  length  elsewhere. 17 

§  691.     Referees  and  trustees  in  bankruptcy. 

The  officers  of  referee  and  trustee   [in  bankruptcy]  are  hereby 
created. 

§  33  of  act  July  1,  1898,  c.  541,  30  Stat.  555,  U.  S.  Corap.  Stat.  1901, 
p.  3435. 

The  trustee  is  scarcely  a  judicial  officer,  but  is  chosen  by  the  parties  for 
the  particular  case.  Provisions  respecting  trustees  are  contained  in  the 
chapters  on  bankruptcy.  20  Those  chapters  also  contain,  further  provisions 
as  to  referees,  including  appointment  and  removals,  qualifications,  oath  of 
office  and  number  of  referees.  1 

14152  U.  S.  709.  iTPost,  §§   10,  69. 

i5Post,  §  1123.  2opost,  §§  2245.  et  seq. 

leBriggs    v.    Neal,  120    Fed.    227,        iPost,  §§  23<j  et  seq. 
5Q  C.  C.  A.  572. 


650 


§ 

704. 

§ 

705. 

§ 

706. 

§ 

707. 

§ 

708. 

s 

709. 

§ 

710. 

1 

711. 

§ 

712. 

5 

713. 

§ 

714. 

§ 

715. 

§ 

716. 

^ 

717. 

§ 

718. 

§ 

719. 

^ 

720. 

§ 

721. 

§ 

722. 

§ 

723. 

5? 

724. 

§ 

725. 

§  726. 

§ 

727. 

§ 

728. 

§ 

729. 

§ 

730. 

§ 

731. 

§ 

732. 

§ 

733. 

§ 

734. 

§ 

735. 

§ 

736. 

§ 

737. 

CHAPTER  19. 

FEES. 

Cross  references  and  matters  not  treated  herein. 

Fees  to  be  taxed  in  United  States  courts. 

Clerk's  fees. 

Statute   authorizing  Supreme   Court   clerk's   fees. 

Supreme  Court   clerk's   fees. 

Statute  authorizing  circuit  court  of  appeals'  fees. 

Fees  in  circuit  court  of  appeals. 

Circuit  and  district  clerk's  fees  for  admission  to  practice. 

Marshal's  fees. 

Fees   of   marshal   of   Supreme   Court. 

Marshal's  allowance  for  mileage  and  execution  of  writs  of  arrest, 

etc. 
No  clerks  or  marshals  fees  for  arrest  of  persons  under  recognizance. 
Fees  of  attorneys,  solicitors  and  proctors. 
Percentage    of    recovery    for   district    attorneys    in    revenue    cases 

in  lieu  of  fees. 
When  no  district  attorneys   fee  on  bonds. 

Allowance  to  district  attorney  for  defense  of  revenue  officers. 
Double  district  attorney  and  marshal  fees  in  Oregon  and  Nevada. 
No   allowance   to   attorney,   clerk,   or  marshal   for   rule   days,   nor 

double  allowance  when  both  courts  sit  at  same  time. 
Attorneys,  clerks  and  marshal's  fees  under  civil  rights  law. 
Fees  of  United  States  commissioners. 
— in  cases  under  Chinese  exclusion  laws. 
Witness  fees. 

Witness  fees  before  Interstate  Commerce  Commission. 
Witness  fees  for  depositions  in  District  of  Columbia. 
— fees  and  mileage  under  letters  rogatory  from  foreign  country. 
No  officer  of  court  to  have  witness  fees. 
Expenses  allowed  clerks,  etc.  as  witnesses. 
Compensation  of  seamen  sent  home  as  witnesses. 
Fees  of  grand  and  petit  jurors. 
Per  diem  compensation   of  jurors. 
Jurors  and  witnesses  mileage  in  Pacific  States. 
Printer's  fees. 

— meaning  of  term   "folio." 
Fees  of  appraisers  on  execution  sale. 

051 


§ 

739. 

§ 

740. 

g 

741. 

§ 

742. 

§ 

743. 

§ 

744. 

§ 

745. 

s 

746. 

§ 

747. 

§ 

748. 

§ 

749. 

§ 

750. 

§ 

751. 

§ 

752. 

§ 

753. 

§ 

754. 

§   704  FEES.  [Code   Fed, 

§  73S.  Jurors  and  witnesses  paid  by  marshal  where  United  States  an 
parties. 

Payment  of  fees  of  commissioners  on  Court  of  Claims  deposition. 

Payment  of  fees  in  suits  on  postmaster's  bonds. 

— of   witnesses    for    indigent    defendants    in    criminal    cases. 

Payment   of   fees   and   costs    in    extradition    proceedings. 

Payment    of    witness    fees    in    prize    causes. 

— of  clerks,  commissioners,  etc.,  where  United  States  are  liable 
therefor. 

Fees  of  marshals  and  district  attorneys  to  be  covered,  into  Treas- 
ury. 

No  fees  for  arrest  and  prosecutions  under  revenue  laws  unless  from 
defendants. 

When  informer  liable  for  fees  incurred  in  prosecution. 

Penalty  for  accepting  compensation  for  services  other  than  that 
provided. 

Purchase  of  claims  for  fees,  etc.,  prohibited. 

Fees,  how  recovered. 

Attachment  for  fees  in  Supreme  Court. 

Clerk's    fees    in   naturalization    proceedings. 

^duty  to  account  for  one  half. 

— deposit   for  witness  fees — retention  by   clerk — additional   assist 


§  704.     Cross  references  and  matters  not  treated  herein. 

Tlie  fees  of  other  than  judicial  officers,  such  as  land,  revenii*', 
pension,  consular  officers,  etc.,  are  not  within  the  scope  of  this 
work.  Xeither  are  the  fees  for  pension  and  other  proceedings  of 
a  legal  nature  before  the  departments ;  nor  referees'  and  witnesses' 
fees  in  appraisements  of  compensation  for  rights  of  way  over  In- 
dian reservations.  This  chapter  deals  with  the  fees  of  judicial 
officers  for  their  various  duties  as  an  element  of  taxable  costs.  Tho 
rules  and  procedure  for  the  taxation  of  costs  are  treated  elsewliero.^ 
It  is  not  primarily  concerned  with  the  compensation  of  judicial 
officers,  and  the  provisions  of  law  fixing  compensation  by  way  of 
salary  or  a  proportion  of  fees  earned  and  the  expense  allowances 
of  particular  officers,  will  be  found  in  preceding  chapters.  Elsc- 
Avhere  also  will  be  found  provisons  as  to  fees  in  bankruptcy  ;2  per- 
mitting poor  persons  to  sue  without  paying  fees  ;^  regulating  the 
bringing  of  suits  for  fees  in  the  Court  of  Claims.^    There  is  a  spe- 

iPost.  §§  1822  et  seq.  referees   and   trustees    §§   2214,  2242. 

"As  to  order  of  payment  of  fees  in  22.51. 

bankruptcy    post.    §"2221;    marshals  spost.    §    1823. 

fees  §  2222;   eompeiisiUion  of  clerks,  ■«Ante.  §  231. 

^.^2 


Procedure]  FEES   TO   BE  TAXED    IX    FEDERAL    COURTS.  §  70",   [b] 

■cial  provision  for  fees  of  the  clerk  in  the  western  district  of  Arkan- 
sas upon  certifying  the  record  in  cases  transferred  for  trial.-' 
Author's  section. 

§  705.     Fees  to  be  taxed  in  United  States  courts. 

The  following'^  and  no  other  compensation  shall  be  taxed  and 
allowed  to  attorneys,  solicitors,  and  proctors  in  the  courts  of  the 
United  States,  to  district  attorneys,  clerks  of  the  circuit  and  dis- 
trict courts,  marshals,  commissioners,  witnesses,  jurors  and  printers 
in  the  several  States  and  Territories,  except  in  cases  otherwie  ex- 
pressly provided  by  law.'^^^"'^*'^  But  nothing  herein  shall  be  con- 
strued to  prohibit  attorneys,  solicitors  and  proctors  from  charging 
to  and  receiving  from  their  clients,  other  than  the  go^■ernment. 
such  reasonable  compensation  for  their  services,  in  addition  to  the 
taxable  costs,  as  may  be  in  accordance  with  general  usage  in  their 
respective  States,  or  may  be  agreed  upon  between  tlie  parties. f*^^ 

R.  S.  §  823,  U.  S.  Comp.  Stat.  1901,  p.  632. 

[a]  Effect  of  act  of  1896. 

By  ihe  act  of  1896  district  attorneys  and  marshals  are  paid  a  fixed 
salary  instead  of  fees  and  emoluments."  The  act,  however,  provides  that 
such  fees  are  to  be  charged  and  collected  as  far  as  possible,  and  paid  to  the 
ch^rk  of  the  court  having  jurisdiction,  and.  by  him  covered  into  the  Treas- 
uiy  of  the  United  States. s  By  a  proviso  in  §  24  of  the  act,  the  part  of  it 
above  mentioned  does  not  apply  to  the  southern  district  of  New  York  and 
the  District  of  Columbia,  and  bj'^  a  later  act  fees  are  not  allowed  any  dis- 
trict attorney  except  in  the  District  of  Columbia. 9 

[b]  Scope  and  intent  of  ssction. 

Prior  to  an  act  of  1853 10  from  which  the  abo\e  provision  was  taken  the 
taxation  of  fees  and  costs  between  parties  in  civil  suits  conformed  to  the 
practice  of  the  particular  state. n  The  present  practice  is  the  same  ex- 
cept so  far  as  in  terms  restricted  by  this  and  following  sections,! 2  since 
by  R.  S.  §  914.  the  practice  of  the  Federal  courts  shall  conform  as  near 
as  may  be  to  that  of  the  State  courts.is     So  the  fee  bill  is  intended  to 

SAnto.   §  410. fa]  [b]  120'Xeil  v.  Kansas  Citv.  etc.  R.  Co. 

6See  post.  §S  706,  715.  717,  720,  723.  31   Fed.  663;   Primrose  v.  Feuno.  113 

7Antc.  §S  oO!).  633.  Fed.    376:    Shreve    v.    Cheeseman.    69 

8Po<t.  §  745.  Fed.    785.    16   C.   C.   A.   413:    Nichols 

9 Ante.  §  .509.   f d ]  v.   Brunswick.   3    Cliff.   88.   Fed.   Cas. 

lOAct  Feb.  26.  1853.  10  Stat.  161.  No.   10.239:    I'nited   States   v.  Tread- 

iiTlic  r.altitnoro.  8  Wall.  390.  391,  well.  15  Fed.  532:  Jordan  v.  A^awam, 

19  1..  (d.  463:  Primrose  v.  Feuno,  113  etc.    Co.    3    Cliff.    239.    Fed.    Cas.   No. 

IVd.  376.     See  also  Jerman  v.  Stew-  7.516. 
.  art,  12  Fed.  274.  isSee  post.  §  900. 

653 


§  706  FEES.  [Code   Fed. 

regulate  only  those  fees  and  costs  which  are  strictly  chargeable  as  be- 
tween different  parties  and  not  those  fees  of  counsel  and  other  expenses 
as  between  attorney  and  client.i^  Nor  is  it  intended  to  regulate  the  power 
of  a  court  of  equity  to  tax  counsel  fees  out  of  a  fund  in  court, is  nor  the 
costs  of  printing  the  record  in  an  equity  case  under  a  rule  of  court. i& 
Expenses  and  disbursements  if  necessary  and  proper  are  allowable,! ^ 
are  as  stenographers  charges,i8  where  the  judge  directs  that  the  testimony 
be  taken  down. 1 9 

[cj     Attorney  fees. 

The  object  of  the  last  portion  of  the  above  section  is  to  make  it  clear 
that  Congress  did  not  prohibit  attorneys  representing  individuals  from 
charging  reasonable  compensation  in  addition  to  taxable  fees.  But  to 
prevent  the  application  of  the  rule  to  the  United  States  the  words  "other 
than  the  government"  were  inserted. 20  Attorneys  fees  have  been  taxed  in 
favor  of  a  complainant  in  equity  who  sues  to  protect  a  joint  fund  in  the 
hands  of  the  court.i 

§  706.     Clerk's  fees. 

For  issuing  and  entering  every  process,  commission,  summons, 
capias,  execution,  warrant,  attacliment,  or  other  writ,  except  a  writ 
of  venire,  or  a  summons  or  supboena  for  witness,  one  dollar.  For 
issuing  a  writ  of  summons,  or  subpoena,  twenty-five  cents.  For 
filing  and  entering  every  declaration,  plea,  or  other  paper,  ten 
cents. f'^^'t^^  For  administering  an  oath  or  affirmation,  except  to 
a  juror,  ten  cents.  For  taking  an  acknowledgment,  twenty-five 
cents. f'^^  For  taking  and  certifying  depositions  to  file,  twenty  cents 
for  each  folio  of  one  hundred  words.  For  a  copy  of  such  deposition 
furnished  to  a  party  on  request,  ten  cents  a  folio-  For  entering  any 
return,  rule,  order,  continuance,  judgment,  decree,  or  recognizance, 
or  drawing  any  bond,  or  making  any  record,  certificate,  return  or 
report,  for  each  folio,  fifteen  cents.  For  a  copy  of  any  entry  or  rec- 
ord, or  of  any  paper  on  file,  for  each  folio,  ten  cents.f'^^  For  making 
dockets  and  indexes,  issuing  venire,  taxing  costs,  and  all  otlier 
services,  on  the  trial  or  argument  of  a  cause  where  issue  is  joined 

i^Internal.  etc.  Fund  V.  Greenough,  isSee     Indianapolis,     etc.     Co..     v. 

10.5  U.   S.  53.5,  20  L.  ed.  1160.  Strawboard   Co.   05   Fed.  5.34. 

3  5ldem:  see  also  Ex  parte  Jaffrav.  isThe  E.  Luckenback.  m  Fed.  847. 

1    Low.     .321,     Fed.     Cas.    No.     7,170  20United  States  v.  -Tohnson.  173  U. 

ifi.Tordan    v.    Agawam.    etc.    Co.    3  S.  373.  43  L.  ed.  735,  19  Sup.  Ct.  Rep. 

Cliff.  2.30.  Fed.  Cas.  No.  7.516.  427. 

1  "Dennis  v.  Eddv.  12  Blatchf.  198,  iTousleis  v.  Greenough.  105  U.   S. 

Fed.  Cas.  No.  3.793:  Hussey  v.  Brad-  527,  26  L.  ed.  1157:   Cuyler  v.  Atlan- 

ley.    5    Blatchf.    212.    Fed.    Cas.    No.  tic,  etc.  R.  Co.  132  Fed.  570  and  cases 

6,946a  and  see  The  Branfoot,  52  Fed.  cited. 
395,  3  C.  C.  A.  155. 

654 


Proccdnic]  CLERKS'   FEES.  §   706   [a] 

and  testimony  given,  three  dollars.  For  making  dockets  and  in- 
dexes, taxing  costs,  and  all  other  services,  in  a  cause  where  issue  is 
joined,  but  no  testimony  is  given,  two  dollars.  For  making  dockets 
and  indexes,  taxing  costs,  and  other  services,  in  a  cause  which  is  dis- 
missed or  discontinued,  or  where  judgment  or  decree  is  made  or 
rendered  without  issue,  one  dollar.  For  making  dockets  and  taxing 
costs,  in  cases  removed  by  writ  of  error  or  appeal,  one  dollar. ^*^^ 
For  affixing  the  seal  of  the  court  to  any  instrument,  when  required, 
twenty  cents. i^^^  For  every  search  for  any  particular  mortgage, 
judgment,  or  other  lien,  fifteen  cents.  For  searching  the  records  of 
the  court  for  judgments,  decrees,  or  other  instruments  constituting 
a  general  lien  on  real  estate,  and  certifying  the  result  of  such  search, 
fifteen  cents  for  each  person  against  whom  such  search  is  required 
to  be  made.^^^  For  receiving,  keeping,  and  paying  out  money,  in 
pursuance  of  any  statute  or  order  of  court,  one  per  centum  on  the 
amount  so  received,  kept  and  paid.'^*'^  For  traveling  from  the  office 
of  the  clerk,  where  he  is  required  to  reside,  to  the  place  of  holding 
any  court  required  by  law  to  be  held,  five  cents  a  mile  for  going  and 
five  cents  for  returning,  and  five  dollars  a  day  for  his  attendance  on 
the  court  while  actually  in  session. ^'^  All  books  in  the  offices  of 
the  clerks  of  the  circuit  and  district  courts,  containing  the  docket 
or  minute  of  the  judgments,  or  decrees  thereof,  shall,  during  office 
hours,  be  open  to  the  inspection  of  any  person  desiring  to  examine 
the  satne,  without  any  fees  or  charge  therefor. 
R.  S.  §  828,  U.  S.  Comp.  Stat.  1901,  p.  635. 

[a]     In  general — compensation  for  extra  services. 

By  a  proceeding  section  the  amount  which  a  clerk  of  the  circuit  and 
district  court  may  retain  for  his  personal  compensation  over  and  above 
his  expenses,  is  limited  to  three  thousand  five  hundred  dollars  a  year.4  The 
salaries  and  compensation  of  clerks  of  the  circuit  court  of  appeals,  Court  of 
Claims,  and  Supreme  Court  are  also  set  forth  in  preceding  sections.s  The 
above  provision  applies  only  to  ordinary  litigation  in  common  law  equity 
and  admiralty  cases,  having  no  application  to  naturalizations  and  habeas 
corpus  proceedings."  It  applies  to  suits  brought  by  the  government  as  well 
as   by    individuals,    and    the   government   is   liable   for      fees    thereunder.s 

<Ante,  §  579.  Fed.  441.     For  naturalization  fee  see 

5 Ante.    §§    577.    578,    576.  post  §§  752-755. 

eUnited   States   v.  Hill.   120  U.   S.  ^In  re  Mov  Chee  Kee.  33  Fed.  379, 

181,  .30  L.   ed.   627,   7   Sup.  Ct.  Rep.  13    Sawv.    121. 

510;   United  States  v.  McMillan,  105  sSee  United  States  v.  Woltcrs,  51 

U.  S.  .506,  41   L.  ed.  809.  17  Sup.  Ct.  Fed.   896. 
Rep.   .395;   Hill   v.  United   States,  40 

655 


§   70G   [b]  FEES.  [Code   Fed. 

The  clerk  may  demand  payment  of  his  costs  as  they  are  earned  without 
waiting  for  the  final  determination  of  the  suit, 9  and  in  revenue  suits 
where  the  government  is  successful  they  may  retain  their  fees  out  of 
the  money  collected  as  in  other  cases.io  Where  one  person  was  both 
clerk  and  commissionei',  it  was  held  that  he  might  receive  compensation 
for  both, 11  although  since  the  establishment  of  U.  S.  Commissioners  a 
clerk  cannot  be  such  a  commissioner  without  the  eon.sent  of  the  Attorney 
(ieneral.i^  Money  collected  by  the  clerk  is  the  property  of  the  government 
subject  only  to  the  payment  of  his  compensation  and  office  expen.ses.i3 

A  Federal  court  may  allow  extra  compensation  to  the  clerk  for  services 
beyond  those  required  by  lawi'i  and  an  order  of  the  court  for  the  per- 
formance of  such  services  is  sufficient  authority.is  Thus  clerks  may  charge 
where  the  court  orders  copies  of  mittimus  writs, is  or  separate  reports  of 
witness  fees  due,i"  or  the  filing  of  affidavits  for  indigent  defendants. is 
The  clerk  may  charge  for  entering  court  orders, 1 9  as,  an  order  appointing 
an  attorney  to  defend  a  poor  prisoner.20  It  is  held  that  an  additional 
fee  for  a  "combination  docket"  should  not  be  allowed,  although  ordered 
by  the  court  and  of  great  convenience. i 

[b]     Issuing  of  process,  summons,  etc.  and  filing  of  papers. 

The  clerk  is  entitled  under  this  section  to  fees  for  issuing  a  commission 
to  supervisors  of  election,*  or  to  new  commissioners  appointed  by  the 
court. 5  He  is  entitled  also  to  a  fee  for  issuing  a  praecipe,  which  is  in  the 
nature  of  a  summons,  to  a  jury  commissioner; 6  and  to  fees  on  each  of 
several  capias  writs  issued  for  the  arrest  of  several  defendants  jointly 
indicted  for  conspiracy. "?  He  is  entitled  to  a  fee  for  filing  a  marshal's 
accuont  with  vouchers  attached  but  not  to  a  separate  fee  for  each  voucher.!^ 
■Certificates  of  discharge  of  witnesses  need  not  be  filed  and  he  cannot  charge 

9Cavender  v.  Cavender,  10  Fed.  828.        it  Fuller  v.  United  States,  58  Fed. 
loUnited  States  v.   Cigars,  2   Fed.    331. 
494.  isButler  v.  United  States,  87  Fed. 


iiUnited  States  v.  Erwin,  147  U.  S. 


667. 


685.  37  L.   ed.  331,  13  Sup.  Ct.  Rep.        i  "United    States    v.    Converse,    63 

443_  '                 ^     Fed.  424,  11  C.  C.  A.  274. 

i2\nte    §67'^  2or!oodricli    v.    United    States,    42 

'          "■  Fed.  3(13. 


isUnited  States  v.  Mason,  129  Fed. 
742,  64  C.  C.  A.  270. 


lUnited  States  v.  Marsh.  112  Fed. 

^      .  929,  50  C.  C.  A.  621. 

iiTl.e  Advance,  60  Fed.  422;  Erwin  4Clough  v.  United  States,  55  Fed. 

V.  United  States,  37  Fed.  470.  921. 

isUnited  States  v.  Van  Duzen,  140  sMarsh  v.   United   States,    88    Fed. 

U.  S.  170,  35  L.  ed.  399,  11  Sup.  Ct.  S79. 

Rep.  758.     See  also  United  States  v.  eydem. 

Allred.  155  U.  S.  591,  39  L.  ed.  274,  TOlough   v.  United  States,  55  Fed. 

15  Sup.  Ct.  Rep.  232:   United  States  921. 

v.   McCaudless,    147  U.   S.  692.   37  L.  sijnited  States  v.  .Tones.  U7  U.  S. 

ed.  334,  13  Sup.  Ct.  Rep.  465.  672,  37  L.  ed.  325,   13  Sup.  Ct.  Rep. 

ifiClough  v.  United  States,  55  Fed.  437;    Ignited   Slates  v.  Converse,  63 

926.  Fed.  423,  11  C.  C.  A.  274. 

656 


Procedure]  CLKRKS'    FEES.  §   706   [c] 

for  them. 9    His  right  to  charge  for  copies  of  court's  orders  is  uneffected  by 
the  fact  that  they  were  hirge  in  number  and  therefore  printed. lo 

Charges  for  filing  praecipes!!  and  receipts  of  revenue  collectors  for 
fines  paid  by  violators  of  revenue  lawsi2  are  within  the  meaning  of 
clause  three  of  this  section,  as  are  also  reports  of  accounts  of  marshals, 
clerks,  and  commissioners! 3  and  dockets  and  other  papers  of  out-going  cir- 
cuit court  commissioners  under  act  of  18961*  and  receipts  given  by  attor- 
neys for  papers  withdrawn  from  the  clerk's  office.!  5  A  clerk  is  also  en- 
titled to  charge  for  filing  and  marking  depositories  and  exhibits  in  a  crim- 
inal case.! 8  The  clerk  is  not  required  to  fasten  together  all  the  papers 
sent  up  by  a  commissioner  but  may  file  them  as  received  and  charge  there- 
for. 1 7 

[c]     Oaths,  aflSrmations,  acknowledgments. 

The  clerk  is  entitled  to  a  fee  of  ten  cents  for  administering  the  oath  to 
witnesses  respecting  their  mileage  and  attendance,!  to  grand  and  petit 
jurors  when  they  prove  their  attendance  before  him, 2  and  to  bailiffs: 3  and 
for  administering  oaths  to  accounts  of  marshals  and  deputy  marshals.! 
T'he  docket  fee  of  three  dollars  does  not  include  compensation  for  swear- 
ing witnesses,  and  the  clerk  is  entitled  to  his  fee  therefor.5  He  is.  how- 
ever, not  entitled  to  fees  for  swearing  juries^  nor  for  administering  oaths 
to  answers  of  defendants  in  scire  facias  cases;"?  nor  is  he  entitled  to 
charge  the  government  for  taking  oaths  and  executing  bonds  of  judicial 
oificers;8  nor  to  charge  fees  to  those  summoned  as  jurors  to  truly  answer 
questions  concerning  their  qualifications  such  persons  being  within  the 
meaning  the  word  "juror"  as  used  in  the  fourth  paragraph  of  the  above 

aUnited  States  v.  Taylor,  147  U.  S.  lUnited  States   v.   Tavlor.   147   V. 

fifla,  37  L.  ed.  3.35.   13  Sup.  Ct.  Rep.  S.  695,  37  L.  ed.  335,  13  Sup.  Ct.  Rep. 

479:    United   States   v.    Converse,   63  479. 

Fed.  423.  11   C.  C.  A.  274.     But  see,  2 Van   Duzee  v.  United    States,   48 

I'liited  States  v.  Van  Duzee,  52  Fed.  Fed.  643.  Affirmed  in  United  States  v. 

9.30,    3    C.    C.    A.    361;    Goodrich    v.  Van  Duzee.  52  Fed.  930,  3  C.  C.  A. 

United  States,  47  Fed.  267.  361. 

loCudaliv  Packing  Co.  v.  McGuire,  sDavis   v.   United   States.   45    Fed. 

135  Fed.  891.  162. 

iiUnited  States  v.  Van  Duzee,  140  4Miir>h   v.   United   States.   88   Fed. 

U.  S.  109,  35  L.  ed.  399,  11   Sup.  Ct.  879;  Butler  v.  United  States,  87  Fed. 

Rep.  758.  655. 

!2United    States     v.     Van     Duzee,  sUnited    States    v.    Van    Diizoe.   52 

52  Fed.  930.  3  C.  C.  A.  301.  Fed.  9.30.  3  C.  C.  A.  361. 

!  3 Idem.  sUnited   States  v.   Dundy,  76   Fed. 

i4United  States  v.  Mar.sh,  112  Fed.  357.  22  C.  C.  A.  221. 

929.  50  C.  C.  A.  621.  7  Fuller  v.   United   States.   58   Fed. 

isGillum  V.  Stewart,  112  Fed.   30.  329. 

isMarvin  V.  United  States,  114  Fed.  sUnited  States  v.  Van  Duzee,   140 

225.  U.  S.  171,  35  L.  ed.  399,  11  Sup.  Ct. 

i7United  States  v.  Van  Duzee,  140  Rep.  758. 
U.  S.  169.  35  L.  ed.  399,  11  Sup.  Ct. 
Rep.  758. 

Fed.  Proc— 42.  657 


§  706  [d]  FEES.  [Code  Fed- 

provision. 9  The  charge  for  an  oath  does  not  include  a  charge  for  a  jurat 
and  both  may  be  taxed. lo 

The  clerk  is  entitied  to  fifteen  cents  for  making  out  the  accounts  of 
jurors  and  witnesses  in  addition  to  ten  cents  for  swearing  the  witness  or 
juror  and  fifteen  cents  for  the  jurat. n 

A  clerk  is  entitled  to  fees  for  taking  acknowledgments  of  sureties  on 
recognizances.  12  He  can,  however,  charge  only  one  fee  for  taking  an 
acknowledgment  of  a  defendant  in  a  criminal  case  and  his  sureties,  unless, 
it  was  necessary  to  take  them  separately.is 

[d] — Entries  and  records. 

Clerks  are  entitled  to  fees  for  entering  a  recognizance  taken  in  open 
(■ourti6  or  entering  a  record  of  the  names  of  jurors  and  their  residence* 
where  such  is  the  practice  of  the  court,!'?  or  for  entering  orders  approving 
marshal's  account,i8  or  orders  for  trial  and  for  recording  verdicts  in 
criminal  cases.  i9  An  original  entry  distinct  from  all  others  though  less 
than  a  folio,  is  to  be  charged  as  a  full  folio. 20  The  approval  by  the 
clerk  of  a  recognizance,  by  the  certificate  of  approval  on  the  face  or  back 
of  the  bond,  is  an  entry  for  which  a  folio  fee  of  fifteen  cents  is  chargeable.  1 

The  clerk  is  entitled  to  fees  for  services  actually  and  necessarily  per- 
formed in  making  up  a  criminal  record,  where  the  practice  of  a  particular 
State  or  district  requires  such  record  to  be  made. 2  In  the  absence  of  rule 
proceedings  before  a  commissioner  form  no  part  of  the  record,?  nor  do 
affidavits,  warrants,  subpoenas  or  capiases,  except  the  one  on  which  the 
arrest  was  made.'*  But  bonds  taken  after  indictment,  captious  of  terras 
and  days  upon  which  journal  entries  are  made  are  properly  allowed,  and 
the  comptroller  cannot  limit  the  clerk  to  a  certain  number  of  folios.5  The 
clerk  is  not  entitled  to  a  separate   fee  for  entering  the  oral  appearances 

sUnited  States  v.  Marsh,  106  Fed.  isUnited  States  v.  Van  Duzee,  140 

474,  45  C.  C.  A.  436.    But  see  Clough  U.  S.  109,  35  L.  ed.  402,  11  Sup.  Ct. 

V.  United  States,  55  Fed.  921.  Rep.  941. 

lOThe    Schooner   ]\Ierwin,    10   Ben.  2  0Ca.vender   v.    Cavender,    10    Fed. 

403,  Fed.  Cas.  No.  4,893.  828. 

iiUnited  States  V.  Morgan,  66  Fed.  lUnited   States   v.   Van   Duzee,   52 

279.  13  C.  C.  A.  435.  Fed.  934,   3  C.  C.  A.  361. 

i2Goodrich    v.    United    States,    47  2United   States   v.   Tavlor,    147   U. 

Fed.  267 ;  United  States  v.  Goodrich,  S.  69'5,  37  L.  ed.  335.  13  Sup.  Ct.  Rep. 

54  Fed.  21,  4  C.  C.  A.  160.  479;    United    States   v.    Van   Duvzee, 

i3United  States  v.  Tavlor.   147  U.  140  U.  S.  199,  35  L.  ed.  402,  11  Sup. 

S.   695,   37    L.   ed.    335,    13    Sup.    Ct.  Ct.  Rep.  941. 

Rep.   479.      See   also,    United    States  3United   States  v.   Taylor,    147   U. 

V.    King,    147    U.    S.    684,    37    L.    ed.  695,  37  L.  ed.  335,  13  Sup.  Ct.  Rep. 

.328.  13  Sup.  Ct.  Rep.  439.  479:   United   States  v.  King.  147  U. 

leUnited  States  v.   Payne.   147   U.  S.    676,   37   L.    ed.    328,   13   Sup.   Ct. 

S.    687,    37    L.   ed.   332,   13    Sup.    Ct.  Rep.  439. 

Rep.  442.  4United   States  v.   Tavlor,   147   U. 

ivUnited   States  v.  Kurtz.   164  U.  S.  695,  37  L.  ed.  335,  13  Sup.  Ct,  Rep. 

S.    49,    41    L.    ed.    346,    17    Sup.    Ct.  479. 

Rep.  15.  5ldem. 

isUnited  States  v.  Jones,  147  U.  S. 
672,  37  L.  ed.  325,  13  Sup.  Ct.  Rep.  437. 

658 


I 


Procedure]  CLERKS'  FEES.  §   706   [f] 

of  attorneys  in  criminal  cases,  this  being  included  in  the  docket  fee.6  But 
where  under  order  of  the  court,  each  order,  motion,  and  proceeding  is  en- 
tered in  a  paragraph  separate  from  the  others,  the  clerk  may  charge  for 
each  although  they  may  relate  to  the  same  case.7  He  is  entitled  to  a 
fee  of  fifteen  cents  per  folio  for  making  up  the  record  on  writ  of  error.* 

[e]  Docket  fees. 

A  docket  fee  of  three  dollars  claimed  under  clause  ten  of  the  above 
section  allowing  such  fee  "where  issue  is  joined  and  testimony  given,  is 
allowable  although  the  record  fails  to  show  that  testimony  was  given  at 
the"  trial  or  argument.io  A  scire  facies  on  a  recognizance  is  a  "cause" 
within  the  meaning  of  the  section,ii  as  is  also  a  proceeding  against  wit- 
nesses for  contempt.  12  But  a  proceeding  for  the  removal  of  a  prisoner 
from  one  district  to  another  is  not.i3  Criminal  cases  should  not  be 
docketed  until  the  grand  jury  or  district  attorney  have  taken  some  af- 
firmative action,  14  hence  the  clerk's  right  to  a  fee  does  not  attach  where 
the  grand  jury  have  ignored  the  indictmentis  nor  does  the  provision  of 
the  above  section  which  allows  fees  for  making  dockets,  etc.,  in  a  case 
which  is  ''dismissed  or  discontinued"  entitled  the  clerk  to  a  fee  in  cases 
sent  up  by  a  commissioner  where  the  grand  jury  fails  to  find  an  in- 
dictment.1 6  His  right  to  a  fee  "where  issue  is  joined"  attaches  when 
such  issue  is  in  fact  joined,  and  is  not  lost  by  a  subsequent  withdrawal 
of  the  plea  constituting  the  issue. 1 7  The  docket  fee  of  one  dollar  under 
the  above  provision  in  a  case  which  is  dismissed  or  discontinue;!  applies 
onh'  to  dismissal  or  discontinuance  before  issue  joined. is 

[f]  Seals. 

If  a  copy  of  a  clerk's  official  record  is  required  to  be  duly  authenticated, 
the  clerk's  seal  should  be  affixed  and  he  is  entitled  to  his  fees  therefor.i 
Hence  under  a  rule  of  court  he  is  entitled  to  fees  for  attaching  his  seal  to 
copies  of  the  indictment  furnished  to  the  defendant  on  demand, 2  or  to 
copies  of  mittimus  writs  to  be  delivered  to  the  jailer.3  But  charges  for 
placing  seals  on  copies  of  orders  directing  payment  of  witnesses  or  jurors, 

sMarvin  v.  United  States,  44  Fed.  U.  S.  169.  .35  L.  ed.  .309.  11  Sup.  Ct. 

40.5.  Rep.  7.58. 

TMarsh   v.   United   States,  88  Fed.  i5United  States  v.  Pavne,  147  U.  S. 

879.  687.  37  L.  ed.  3.32,  13  Sup.  ^  i.  Rep. 

"Thornton    v.    Insurance    Co.    125  442:    United    States    v.    ^IcCandless, 

Fed.  250.     See  also  Mohrstadt  v.  In-  147  U.  S.  692,  37  L.  ed.  334,  13  Sup. 

surance  Co.  145  Fed.  751.  Ct.  Rep.  465. 

loUnited   States  v.   Pavne,   147  U.  lel'nited  States  v.  Van  Duzee,  140 

S.   G87,   37   L.   ed.   .3.32.   13    Sup.    Ct.  F.  S.  169.  35  L.  ed.  399,  11  Sup.  Ct. 

Rep.  442.  Rep.  758. 

11  Idem.  i7United   States  v.  Kurtz.   1(>4  U. 

i2Erwin  v.  United  States,  37  Fed.  S.  49,  41  L.  ed.  346,  17  Sup.  Ct.  Rep. 

470.     And     see.     Taylor     v.     United  15. 

States,    45    Fed.    5.31;     Goodrich    v.  isTdem. 

T'nited  States.  42  Fed.  392.  i Marsh   v.  United   States.  88  Fed. 

i3United   States  v.   Jones,   147   U.  879. 

S.  676,  37  L.  ed.  328.  13  Sup.  Ct.  Rep.  2United    States   v.   Van   Duzee.   52 

439.  Vvi\.  930,  3  C.  C.  A.  301. 

^United  States  v.  Van  Duzee,  140  sidem. 

659 


§  7U0   [g]  FEES.  [Code  Fed. 

or  approving  the  accounts  of  judicial  officers  will  not  be  allowed  unless  the 
Treasury  Department  requires  such  authentication.*  Xor  will  charges 
be  allowed  for  seals  on  copies  of  orders  on  the  marshal  to  procure  meals 
for  the  jury,5  or  on  commissions  of  supervisors  of  elections.s  or  on  a 
certiticate  of  search  unless  required  by  law  or  by  the  practice  of  the  de- 
part nient.^  Generally  where  there  has  been  no  express  waiver  the  clerk 
nuiy  charge  twenty  cents  for  attixing  his  seal  to  affidavits  taken  before 
him. 8 

[gj     Searches. 

Records  in  the  clerks  office  are  open  to  inspection  by  the  public  and 
he  can  charge  for  searching  the  records  only  when  he  is  required  to  make 
the  search  himself. lo  For  such  search  he  is  entitled  to  a  fee  of  fifteen 
cents. 11  For  his  statement  to  the  Attorney  General  of  judgments,  etc.,  for 
the  preceding  year  he  is  not  entitled  to  the  regular  fee  for  searches  but 
receives  compensation  at  fifteen  cents  per  folio. 12  Compensation  for 
searching  for  petitions  in  bankruptcy  is  not  expressly  provided  for  in 
this  section.  Fifteen  cents  for  each  name  searched  against  has  been  held 
a  reasonable  compensation. is 

[h]    Commissions  on  money  deposited. 

The  clause  of  the  above  section  allowing  the  clerk  a  commission  "for 
receiving,  keeping  and  paying  out  money  in  pursuance  of  any  statute  or 
order  of  the  court"  applies  only  to  money  which  passes  through  his 
hands, 14  either  actually  or  constructively.! 5  Hence  the  clerk  is  not  en- 
titled to  a  commission  under  a  decree  for  salvage,  the  claims  being  paid 
without  saleis  or  under  a  foreclosure  sale  by  a  special  master  who  under 
courts  order  himself  pays  the  proceeds  to  the  mortgagee :i^  or  on  moneys 
of  a  receivership  deposited  and  paid  out  by  the  receiver  under  orders  of 
the  court;  18  or  on  moneys  in  the  hands  of  an  assignee  in  bankruptcy. 1 9 
A  judgment  is  an  order  of  the  court  within  the  meaning  of  the  clause, 
and  the  clerk  is  entitled  to  his  commission  on  money  received  by  him  un- 
der such  judgment. 20  It  is  held  that  he  is  entitled  to  commission  on  money 
collected  by  a  marshal  under  executions,  whether  deposited  to  the  credit  of 

4l"nited    States    v.    .Tones.    147    U.  i^.Tohnson  v.  Soutliern.  etc.  Ass'n. 

S.    672.    37    L.    ed.    .32.5.    1-3    Sup.    Ct.  95  Fed.  922;   Easton  v.  Houston,  etc. 

Rep.  4.37:   United  States  v.  Van  D«  Rv.    44    Fed.    721:    Upton    v.    Trible 

zee.  140  U.  S.  174,  35  L.  ed.  399.  11  cock.  4  Dill.  232.  Fed.  Cas.  No.  5..541 

Sup.    Ct.   Rep.   758.  note:  Tn  re  Goodrich.  4  Dill.  230,  Fed. 

sMarsh  v.   United  States.   88   Fed.  Cas.  No.  5.541. 

879.  isLeech  v.  Kay,  4  Fed.  72. 

eClough  V.  United  States.  55  Fed.  i«Smith   v.    The   Morgan    Citv,    39 

921.  Fed.   572. 

"In  re  Woodbury,  7  Fed.  705.  iv  North  western  Ins.  Co.  v.  Quinii. 

SMarsh   v.  United  States.   88   Fed.  69    Fed.    462:    Michigan    Central    v. 

8'79.  Harsha,  1.34  Fed.  217.  67  C.  C.  A.  145. 

loln  re  Chambers,  44  Fed.  786.  isFarmers  Loan,  etc.   Co.  v.  Dart. 

iiln  re  Woodburv.  7  Fed.   705.  91  Fed.  451.  33  C.  C.  572. 

i2Marvin  v.  United  States.  44  Fed.  isLeech  v.  Kav.  4  Fed.  72. 

405.  2«Blake  v.   Hawkins,   19   Fed.  204. 

13 In  re  Vermenle.   10  Ben.   1.  Fed. 
Cas.  No.   16,916. 

600 


no.edure]  SUPREME    COURT    CLERK'S   FEES.  {   708 

the  court  by  the  marshal  or  by  the  clerk. i  Railroad  bonds  deposited  in 
court  are  not  "money"  and  the  clerk  is  not  entitled  to  commission  thereon. 2 
The  clerk  must  also  be  deemed  to  have  authority  to  receive  money  paid  into 
court  by  a  private  suitor  in  a  pending  case,  with  the  sanction  of  the  court. 3 

[ij     Per  diem  compensation. 

The  allowance  of  five  dollars  a  day  to  the  clerk  "for  his  attendance  in 
the  court  while  actually  in  session"  entitles  him  to  the  fee  not  only  when 
the  judge  is  present  in  person  but  when  under  his  written  order  the  court 
is  adjourned  by  the  marshal  or  clerk.*  He  is  entitled  to  his  fee  whether 
any  business  is  transacted  or  not.s  He  is  entitled  to  his  fees  also  for  days 
between  regular  terms  on  which  he  is  required  to  attend  and  does  attend.*^ 

§  707.     Statute  authorizing  Supreme  Court  clerk's  fees. 

The  Supreme  Court  is  hereby  autliorized  and  empowered  to  pre- 
pare the  tables  of  fees  to  be  charged  by  the  clerk  thereof,  and  until 
the  same  is  thus  prepared  the  fees  therein  charged  for  recording 
or  copying  any  paper  or  record  shall  not  exceed  fourteen  cents  per 
folio. 

From  appropriation  act  Mar.  3,  1883,  c.   143,   §   1,  22  Stat.  631,  U.  S. 
Comp.  Stat.  1901,  p.  650. 

§  708.     Supreme  Court  clerk's  fees. 

In  pursuance  of  the  act  of  March  3,  1883,  authorizing  and 
empowering  this  court  to  prepare  a  table  of  fees  to  be  charged  by 
the  clerk  of  this  court,  the  following  table  is  adopted :  For  docket- 
ing a  case  and  filing  and  indorsing  the  transcript  of  the  record,  five 
dollars.  For  entering  an  appearance,  twenty-five  cents.  For  enter- 
ing a  continuance,  twenty-five  cents.  For  filing  a  motion,  order 
or  other  paper,  twenty-five  cents.  For  entering  any  rule,  or  for 
making  or  copying  any  record  or  other  paper,  twenty-cents  per 
folio  of  each  one  hundred  words.  For  transferring  each  case  to  a 
subsequent  docket  and  indexing  the  same,  one  dollar.  For  enter- 
ing a  judgment  or  decree,  one  dollar.  For  every  search  of  the  rec- 
ords of  the  court,  one  dollar.  For  a  certificate  and  seal,  two  dol- 
lars. For  receiving,  keeping  and  paying  money  in  pursuance  of 
any  statute  or  order  of  court,  two  per  cent  on  the  amount  so  re- 
ceived, kept  and  paid.     For  an  admission  to  the  bar  and  certificate 

iFagan    v.    CuMen.    28    Fed.    843.  S.   GfiO.   .37   L.    ed.    324,    13   Sup.    Ct. 

^.Michigan   Central   R.   Co.  v.  Har-  Rep.  42ii. 

sha,   134   Fed.   217,  67  C.   C.  A.   145.  sGoodrieh  v.  United  States,  35  Fed. 

3Ho\vard  v.  United  States.   184  U.  19'3.    And  see  Erwin  v.  United  States. 

S.  1)76.  46  L.  ed.  7o4.  22  Sup.  Ct.  Rep.  37  Fed.  470. 

543.  fiButler  v.  United   States,  87  Fe.. 

^United   States   v.   Pitman,   147   T'.  ti.io. 

061 


§   709  FEES.  [Code  Fed. 

under  seal,  ten  dollars.  For  preparing  the  record  or  a  transcript 
thereof  for  the  printer,  indexing  the  same,  supervising  the  print- 
ing, and  distributing  the  printed  copies  to  the  justices,  the  reporter, 
the  law  librar}^  and  the  parties  or  their  counsel,  fifteen  cents  per 
folio.  For  making  a  manuscript  copy  of  the  record,  when  required 
under  Kule  10,  twenty  cents  per  folio,  but  nothing  in  addition  for 
supervising  the  printing.  For  issuing  a  writ  of  error  and  ac- 
companying papers,  five  dollars.  For  a  mandate  or  other  process, 
five  dollars.  For  filing  briefs,  five  dollars  for  each  party  appearing. 
For  every  copy  of  an  opinion  of  the  court  or  any  justice  thereof, 
certified  under  seal,  one  dollar  for  every  printed  page,  but  not  to 
t'xceed  five  dollars  in  the  whole  for  any  copy. 

§  7  of  Supreme  Court  rule  24,  promulgated  Mar.  28,  1887.8 

By  a  provision  of  §  9  of  Supreme  Court  rule  10,  it  is  provided,  that,  "The 
tfees  of  the  clerk  under  rule  24,  section  7  shall  be  computed,  as  at  present, 
lon  the  folios  in  the  record  as  filed,  and  shall  be  in  full  for  the  performance 
of  nis  duties  in  the  execution  hereof."  Supreme  Court  rule  38 SV!;  declares 
that  "the  provisions  of  rule  24  of  this  court  in  regard  to  fees  shall  apply 
to  writs  of  error  and  appeals  and  reviews  under  the  provisions  of  sections 
5  and  6  of  the  said  act"  [i.  e.  the  act  of  1891  creating  the  circuit  court  of 
appeals].     This  was  probably  superseded  by  an  order  made  in  1898.8% 

§  709.     Statute  authorizing  circuit  court  of  appeals'  fees. 

The  costs  and  fees  in  each  circuit  court  of  appeals  shall  be  fixed 
and  established  by  said  court  in  a  table  of  fees,  to  be  adopted  within 
three  months  after  the  passage  of  this  act:  Provided,  that  the 
costs  and  fees  so  fixed  by  any  court  of  appeals  shall  not,  with  respect 
to  any  item,  exceed  the  costs  and  fees  now  charged  in  the  Supreme 
Court;  and  the  same  shall  be  expended,  accounted  for,  and  paid  for, 
and  paid  over  to  the  Treasury  Department  of  the  United  States 
in  the  same  manner  as  is  provided  in  respect  to  the  costs  and  fees 
in  the  Supreme  Court.  Eacli  circuit  court  of  appeals  shall,  within 
three  months  after  the  fixing  and  establishing  costs  and  fees  as 
aforesaid,  transmit  such  table  to  the  Chief  Justice  of  the  United 
States,  and  within  one  year  tliereof  the  Supreme  Court  of  the 
United  States  shall  revise  said  table,  making  the  same,  so  far  as 
may  seem   just  and  reasonable,  uniform  throughout   the  United 

8120  U.  S.  7S5. 

8y2Promuloated      May      11,      1891. 
Soe  130  U.  S.  707. 
s%Soe   post,    §    710. 

662 


Procedure]  FEES  IN  CIRCUIT  COURT  OF  APPEALS.  f  710 

States.     The  table  of  fees,  when  so  revised,  shall  thereupon  be  in 
force  in  each  circuit. 

Part  of   §   2  act  Mar.  3  1891,  c.  517,  26  Stat.  826,  amended  Feb.  19, 
1897,  c.  263,  29  Stat.  536,  U.  S.  Comp.  Stat.  1901,  p.  547. 

Prior  to  the  amendment  of  1897  the  act  made  the  costs  and  fees  in  the 
Supreme  Court  the  costs  and  fees  in  the  circuit  court  of  appeals. 

§  710.     Fees  in  circuit  coiirt  of  appeals. 

Ordered  in  pursuance  of  the  Act  of  Congress  of  Febrnary  19, 
1897,^  that  the  following  table  of  fees  and  costs  in  the  circuit 
court  of  appeals  be,  and  the  same  is  hereby  established  to  take 
eTeet  on  the  first  day  of  ]\Iarch,  A.  D.  1898,  and  no  other  fees  and 
costs  than  those  therein  named  shall  thereafter  be  charged : 

Docketing  a  case  and  filing  the  record _ $5.00 

Entering  an  appearance 25 

Transferring  a  case  to  the  printed  calendar _  1.00 

Entering  a  continuance 25 

Filing  a  motion,  order  or  other  paper 25 

Entering  any  rule  or  making  or  copying  any  record  or  other 

paper,  for  each  one  hundred  words 20 

Entering  a  judgment  or  decree  _ 1.00 

Every  search  of  the  records  of  the  court  and  certifying  the 

same 1.00 

Affixing  a  certificate  and  a  seal  to  any  paper 1.00 

Eeceiving,  keeping  and  paying  money,  in  pursuance  of  any 

statute  or  order  of  the  Court,  one  per  cent  on  the  amount 

so  received,  kept  and  paid. 

Preparing  the  record  for  the  printer,  indexing  the  same, 

super%ising  the  printing,  and  distributing  the  copies,  for 

each  printed  page  of  the  record  and  index 25 

Making  a  manuscript  copy  of  the  record,  when  required  by 
the  rules,  for  each  one  hundred  words   (but  nothing  in 

addition   for   supervising  the  printing)    20 

Issuing  a  writ  of  error  and  accompanying  papers  or  a  man- 
date or  other  process 5.00 

Filing  briefs  for  each  party  appearing 5.00 

•Ante,  §  709. 

663 


S   711  FEES.  [Code  Fed. 

Cop3'  of  an  opinion  of  the  court,  eortified  under  seal,  for  eacli 
printed  page  (but  not  to  exceed  $5.00  in  the  whole  for 

any  cop}-)    1.00 

Attorney's  docket  fee 20.00 

Supreme  Court  table  of  fees  established  by  order  of  Jan.   10,  1898,  as 
amended  Feb.  28,  18!)8.io 

The  amendment  above  mentioned  raised  the  fee  for  preparing  the  record 
for  the  printer,  from  fifteen  cents  to  twenty-five  cents.  A  similar  pro- 
vision will  be  found  in  the  ninth  paragraph  of  rule  2.3  of  the  circuit  court 
of  appeals  for  the  ninth  circuit.  Irrelevant  evidence  carried  into  the  rec- 
ord by  a  successful  party  may  be  taxed  against  him.ii  Following  the 
Supreme  Court  practice  an  attorney's  docket  fee  may  be  taxed  where  costs 
are  given. 12 

The  above  order  probably  superseded  the  provisions  of  Rule  .38  quoted 
above,i3  so  far  as  affecting  fees  in  the  circuit  court  of  appeals. 

§  711.     Circuit  and  district  clerk's  fees  for  admission  to  practice. 

No  amount  in  excess  of  one  dollar  shall  be  received  from  any 
attorney  in  connection  with  his  admission  to  practice  in  a  circuit 
or  district  court. 

Part  of  §  1  aet  June  28,  1902,  c.  1301,  32  Stat.  476,  U.  S.  Comp.  Stat. 
1905,  p.  160. 

This  is  a  proviso  to  the  section  requiring  a  semi-annual  accounting  by 
circuit  and  district  court  clerks  as  to  fees  and  expenses.  1* 

§  712.     Marshal's  fees. 

For  service  of  any  warrant,  attachment,  summons,  capias,  or 
other  writ,  except  execution,  venire  or  a  summons  or  subpoena  for 
a  witness,  two  dollars  for  each  person  on  whom  service  is  made. 
For  the  keeping  of  personal  property  attached  on  mesne  process, 
such  compensation  as  the  court,  on  petition  setting  forth  the  facts 
under  oath,  may  allow.  For  serving  venires  and  summoning  every 
twelve  men  as  grand  or  petit  Jurors,  four  dollars,  or  thirty-three 
and  one-third  cents  each.  In  States  where,  by  the  laws  thereof, 
jurors  are  drawn  by  lot,  by  constables  or  other  officers  of  corporate 
places,  the  marshal  shall  receive,  for  each  jury,  two  dollars  for  the 
use  of  the  officers  employed  in  drawing  and  summoning  the  jurors 
and  returning  each  venire,  and  two  dollars  for  his  own  services  in 

10169  U.  S.  740.  iiShilliti  Co.  v.  MeOlung,  66  Fed. 

iiEcaubert.    v.    Appleton.    67    Fed.    22.  13  C.  C.  A.  284. 
925,  15  C.  C.  A.  73.  isSee  ante.  §  708,  note. 

I'^Ante.  §  589. 
664 


I'rocediire]  MAKSIIAl.S'    FEES.  5   712 

distributing  the  venires.  But  the  fees  for  distributing  and  serving 
venires,  drawing  and  summoning  Jurors  by  township  officers,  in- 
chiding  the  mileage  chargeable  by  the  marshal  for  each  service, 
shall  not  at  any  court  exceed  fifty  dollars.  For  holding  a  court  of 
inquiry  or  other  proceedings  before  a  jury,  including  the  summon- 
ing of  a  jury,  five  dollars.  For  serving  a  writ  of  subpoena  on  a  wit- 
ness, fifty  cents;  and  no  further  compensation  shall  be  allowed 
for  any  copy,  summons,  or  notice  for  a  witness.  For  serving  a  writ 
of  possession,  partition,  execution,  or  any  final  process,  the  same 
mileage  as  is  allowed  for  the  service  of  any  other  writ,  and  for 
making  the  service,  seizing  or  levying  on  property,  advertising  and 
disposing  of  the  same  by  sale,  set-off  or  otherwise  according  to  law. 
receiving  and  paying  over  the  money,  the  same  fees  and  poundage 
as  are  or  shall  be  allowed  for  similar  services  to  the  sheriffs  of  the 
States,  respectively,  in  which  the  service  is  rendered.  For  each  bail 
bond,  fifty  cents.  For  summoning  appraisers,  fifty  cents  each.  For 
executing  a  deed  prepared  by  a  party  or  his  attorney,  one  dollar. 
For  drawing  and  executing  a  deed,  five  dollars.  For  copies  of 
writs  or  papers  furnished  at  the  request  of  any  party,  ten  cents  a 
folio.  For  every  proclamation  in  admiralty,  thirty  cents.  For 
serving  an  attachment  in  rem  or  a  libel  in  admiralty,  two  dollars. 
For  the  necessary  expenses  of  keeping  boats,  vessels  or  other  prop- 
erty attached  or  libeled  in  admiralty,  not  exceeding  two  dollai-s 
and  fifty  cents  a  day.  When  the  debt  or  claim  in  admiralty  is  set- 
tled by  the  parties  without  a  sale  of  the  property,  the  marshal  shall 
l)e  entitled  to  a  commission  of  one  per  centum  on  the  first  five 
liundred  dollars  of  the  claim  or  decree,  and  one-half  of  one  per 
centum  on  the  excess  of  any  sum  thereof  over  five  hundred  dollars : 
Provided,  that,  when  the  value  of  the  property  is  less  than  the 
claiiii,  such  commission  shall  be  allowed  only  on  the  appraised 
value  thereof.  For  sale  of  vessels  or  other  property  under  process 
in  admiralty,  or  under  the  order  of  a  court  of  admiralty,  and  for 
receiving  and  paying  over  the  money,  two  and  one  half  per  centum 
on  any  sum  under  five  hundred  dollars,  and  one  and  one-quarter  per 
centum  on  the  excess  of  any  sum  over  five  hundred  dollars.  For 
disbursing  money  to  jurors  and  witnesses,  and  for  other  expenses, 
two  per  centum.  For  expenses  while  employed  in  endeavoring 
to  arrest,  under  process,  any  person  charged  with  or  convicted 
of  a  crime,  the  sum  actually  expended,  not  to  exceed  two 
dollars    a    day    in    addition    to    his    compensation    for    services 

G65 


§  712   [a]  FEES.  [Code  Fed. 

and  travel.  For  every  commitment  or  discharge  of  a  prisoner, 
fifty  cents.  For  transporting  criminals,  ten  cents  a  mile  for  him- 
self and  for  each  prisoner  and  necessary  guard;  except  in  the  case 
provided  for  in  the  next  paragraph.  For  transporting  criminals 
convicted  of  a  crime  in  any  district  or  Territory  where  there  is  no 
.penitentiary  available  for  the  confinement  of  convicts  of  the 
United  States,  to  a  prison  in  another  district  or  Territory  desig- 
nated by  the  Attorney  General,  the  reasonable  actual  expense  of 
transportation  of  the  criminals,  the  marshal,  and  the  guards,  and 
the  necessary  subsistence  and  hire.  For  attending  the  circuit  and 
district  courts,  when  both  are  in  session,  or  either  of  them  when 
only  one  is  in  session  and  for  bringing  in  and  committing  prisoners 
and  witnesses  during  the  term,  five  dollars  a  day.  For  attending 
examinations  before  a  commissioner,  and  bringing  in,  guarding, 
and  returning  prisoners  charged  with  crime,  and  witnesses,  two  dol- 
lars a  day;  and  for  each  deputy  not  exceeding  two,  necessarily  at- 
tending, two  dollars  a  day.  For  traveling  from  his  residence  to 
the  place  of  holding  court,  to  attend  a  term  thereof,  ten  cents  a 
mile  for  going  only.  For  travel,  in  going  only,  to  serve  any  process, 
warrant,  attachment  or  other  writ,  including  writs  of  subpoena 
in  civil  or  criminal  cases,  six  cents  a  mile,  to  be  computed  from  the 
place  where  the  process  is  returned  to  the  place  of  service,  or, 
when  more  than  one  person  is  served  therewith,  to  the  place  of 
service  which  is  most  remote,  adding  thereto  the  extra  travel 
which  is  necessary  to  serve  it  on  the  others.  But  when  more  than 
two  writs  of  any  kind  required  to  be  served  in  behalf  of  the  same 
party  on  the  same  person  might  be  served  at  the  same  time,  the 
marshal  shall  be  entitled  to  compensation  for  travel  on  only  two 
'of  such  writs;  and  to  save  unnecessary  expense,  it  shall  be  the 
duty  of  the  clerk  to  insert  the  names  of  as  many  witnesses  in  a 
cause  in  such  subpoena  as  convenience  in  serving  the  same  will 
permit.  In  all  cases  where  milegage  is  allowed  to  the  marshal 
he  may  elect  to  receive  the  same  or  his  actual  traveling  expenses, 
to  be  proved  on  his  oath,  to  the  satisfaction  of  the  court-^^^''^®^ 
R.  S.  §  829,  U.  S.  Comp.  Stat.  1901,  pp.  636-638. 

[a]     Effect  of  act  of  1896  and  cross  references. 

This  section,  so  far  as  it  operated  to  establish  the  compensation  of 
marshals,  was  superseded  everywhere  except  in  the  southern  district  of 
New  York  and  the  District  of  Columbia,  by  an  act  of  1896.  That  act 
still   required  that   the   fees   be   collected   except   from   the  United  States, 

GG6 


1 


SProcedure]  MARSHALS'    FEES.  §712   [c] 

but  directed  that  the  marshal  turn  them  over  to  the  clerk  to  be  by  hira 
covered  into  the  Treasury.  It  prohibited  the  collection  of  fees  by  the 
marshal,  from  the  United  States,  except  in  the  case  of  field  deputies  under 
certain  restrictions. is  The  act  of  189G  and  various  other  provisions  from 
time  to  time  have  regulated  and  defined  the  allowances  to  marshals  and  ex- 
penses and  disbursements  of  one  kind  and  another  that  might  be  charged 
on  their  accounts  and  be  entitled  to  approval  upon  the  auditing  of  those 
accounts.  These  are  elsewhere  considered.! 9  An  act  of  18792  0  changed 
the  mode  of  drawing  Federal  jurors,  and  made  the  provision  of  R.  S.  §  829, 
supra,  fixing  fees  where  jurors  are  drawn  according  to  certain  local  rules, 
inoperative. 

[b]     Service  of  process,  etc. 

It  is  the  marshals  duty  to  execute  process  of  the  court,  even  if  super- 
tluousS  and  such  duty  is  unaffected  by  the  opinion  of  the  con.ptroller 
that  it  is  unnecessary. 7  He  may  charge  fees  therefore  in  advance. s  but 
cannot  charge  for  unofficial  acts.9  He  may  charge  a  two  dollar  fee  for 
serving  a  summons  under  the  above  section,  and  a  reasonable  compensation 
for  serving  the  complaint. lo  He  may  charge  mileage  also  at  the  rate  of 
.six  cents  per  mile  but  when  two  papers  are  served  on  the  same  party  he 
cannot  charge  separately  for  each.ii 

,[cj     Execution  fees. 

A  marshal  is  entitled  to  his  fees  on  an  irregular  execution.  Under  New 
York  Cases,  however,  he  is  not  entitled  to  poundage,  but  the  court  may 
make  allowance  for  his  trouble  and  expense  in  caring  for  the  property. 12 
An  inventory  for  the  sale  of  property  need  not  be  prepared  by  him  but 
must  be  paid  for  at  the  expense  of  the  party  desiring  it.i3  There  is  no 
authorization  under  the  section  for  the  employment  of  an  auctioneer  to 
.sell  property  under  admiralty  process  or  decree.i*  Under  the  laws  of  the 
State  of  Washington  a  marshal  who  has  offered  or  sold  property  under 
execution  is  entitled  not  only  to  fees  for  levying,  but  also  to  percentages 
on  money  paid  into  his  hands.i  On  an  execution  against  the  person  in 
New  York,  it  is  held  that  the  marshal  is  entitled  to  poundage  on  the  whole 
ii  mount. 2 

isPost.  745,  and  ante,  §  621.  loSwancoat    v.    Remsen.    76    Fed 

isPost,  §  714,  ante,  637,  638,  640,  930. 

•641.  11  Idem. 

20See  post,  §  1703.  i2Amato  v.  Jacobus,  58  Fed.  855, 

cPuleston  v.  United  States  88  Fed.  7  C.  C.  A.  545. 

■970;   Lovering  v.  United  States.   117  isThe   Trial,    1   Blatchf.   &   H.   94, 

Fed.  565.  Fed.   Cas.   No.   14,170. 

^Harmon  v.  United  States,  43  Fed.  ^The    John   E.    Mulford,    18    Fed. 

560.  455. 

8Duy  V.  Knowlton.  14  Fed.  107.  iDexter.    etc.    Co.    v.    Sayward,    7S 

sDoiiahower   v.    United   States,    77  Fed.   275. 

iFed.  153.  2United  States  v.  Haas,  5  Fed.  29. 

667 


S  712   [dj  FEES.  [Code  Fed. 

[dj     Admiralty  services. 

Tlie  inarsliai  is  entitled  only  to  actual  expenses  in  ship  keeping^  whiih 
must  be  established  to  the  satisfaction  of  the  court*  and  which  must  not 
exceed  two  dollars  and  fifty  cents  per  days  except  in  extraordinary  circum- 
stances.6  This  does  not  include  wharfage,'  or  reasonable  dockage  fees,"* 
which  may  be  charged  against  the  vessels.  He  has  no  right  to  insure  the 
vessel  without  consent  of  the  owners,!)  nor  to  direct  repairs  beyond  what 
are  necessary  to  her  preservation lo  where  such  repairs  are  neces^iuy  the 
marshal  is  entitled  to  reimbursement  from  the  proceeds  of  lln-  sale.n 
Where  the  vessel  is  held  under  several  processes,  the  proper  rule  is  to 
etjually  divide  the  per  diem  custody  fee.i2 

[ej     In   Bankruptcy. 

Where  in  a  bankruptcy  case  he  serves  the  petition  and  affidavits,  and  the 
order  to  show  cause,  together,  under  a  rule  of  court,  he  is  entitled  to  a 
reasonable  compensation  for  the  service  of  the  petition  and  affidavit  as 
well  as  for  the  order. is 

§  713.     Fees  of  marshal  of  Supreme  Court. 

The  marshal  of  the  Supreme  Court  of  the  United  States  shall  ht' 
entitled  to  receive  for  the  service  of  any  warrant,  attachment,  sum- 
mons, capias,  or  other  wa-it,  except  execution,  venire,  or  a  summons, 
or  subpoena  for  a  witness,  one  dollar  for  each  person  on  whom  such 
services  may  be  made.  His  fees  for  all  other  services  shall  be  tlie 
same  as  are  herein  allowed  to  other  marshals ;  but  he  shall  pay 
into  the  treasury  of  the  United  States  all  fees  received  by  him, 
and  render  a  true  account  thereof  at  the  close  of  each  term  to  the 
Attorney  General. 

R.  S.  §  832,  U.  S.  Comp.  Stat.  1901,  p.  641. 

The  compensation  and  salary  of  the  Supreme  Court  marshal  are  set 
forth  in  an  earlier  section. 1 7 


3See  The  Vandercook,  77  Fed.  865.  lOThe    SiiltMua.    Brown.    3.";.    Fed. 

4The  Free  Trader.  Brown,  Adm.  72,  Cas.  No.  13,603. 

Fed.  Cas.  No.  5,091.  iiln  re  The  Allegheny,  85  Fed.  463. 

sThe  Steamship  Circassian,  6  Ben  i2The  Circassian.  6  Ben.  512.  Fed. 

512.  Fed.  Cas.  No.  2,725.  Cas.   No.    2.725.     And    see   The   John 

6The    Captain    John.    41    Fed.    147.  Walls,  1   Sprague.  178.  Fed.  Cas.  No. 

TThe    Merwin.    10    Ben.    403.    Fed.  7.432. 

Cas.    4.893.  iBin  re  Damon,  104  Fed.  775      See 

8The  Noveltv,  9  Ben.  195.  Fed.  Cas.  also  In  re  Burnell,  7  Biss.  275.  Fed. 

No.  10,368.       '  Cas.   No.  2.171. 

flBurke   v.  Rich,   1  Cliff.  509,  Fed.  it  Ante,  §  615. 
Cas.  No.  2,162. 

668 


Procedure]  CLERKS'    AND    MARSHALS'    FEES.  §   715 

§  714.     Marshal's  allowance  for  mileage  and  execution  of  writs 
of  arrest,  etc. 

Tlie  sundry  civil  appropriation  act  of  1894  provided  that  "Here- 
after no  marshal  or  deputy  marshal  [shall]  be  allowed  more  than 
one  mileage  for  each  mile  actually  and  necessarily  traveled,  irrespec- 
tive of  the  number  of  writs  he  may  execute  in  making  such  travel ; 
nor  shall  any  marshal  or  deputy  marshal  be  allowed  any  additional 
mileage  incident  to  the  execution  or  return  of  any  writ  of  arrest. 
commitment  or  removal  other  than  the  ten  cents  a  mile  now  al- 
lowed by  law  for  each  deputy,  prisoner,  and  guard ;  and  no  mileage 
shall  be  allowed  upon  any  writ  not  executed  or  when  the  travel  was 
without  cost  to  marshal  or  deputy ."^^  A  later  act  of  1896  provided 
that  only  actual  necessary  traveling  expenses  and  necessary  actiuil 
expenses  in  transporting  prisoners, ^^  might  be  allowed  in  serving- 
process,  etc.,  and  transporting  prisoners,  and  to  that  extent  super- 
seded the  earlier  provision.  In  the  appropriation  act  of  1900  the 
last  clause  of  the  provision  of  1894  is  repeated  with  a  modification 
as  follows :  "'No  mileage  shall  be  allowed  upon  any  writ  not 
execiited  nor  when  the  travel  is  without  cost  to  marshal  or  office 
deputy."^' 

Author's  section. 

Field  deputies  are  still  on  a  fee  basis. is 

§  715.     No  clerks  or  marshals  fees  for  arrest  of  persons  under 
recognizance. 

Hereafter  no  part  of  the  appropriations  made  for  the  payment 
of  fees  for  United  States  marshal  or  clerks  shall  be  used  to  pay 
the  fees  of  United  States  marshals  or  clerks  iipon  any  writ  or  bencli 
warrant  for  the  arrest  of  any  person  or  persons  who  may  l)e  in- 
dicted by  any  United  States  grand  jury,  or  against  whom  an  in- 
formation ma}'  be  field,  where  such  person  or  persons  is  or  are  under 
a  recognizance  taken  by  or  before  any  United  States  commissioner. 

isAct  Aug.  18.  1804.  e.  .301.  28  Stat.  070:    United   States   v.   Dill.  8fi   Fed. 

416.  U.  S.   Comp.   Stat.   IPOl.  p.   039.  79,  29  C.  C.  A.  580;    Nixon  v.  United 

isAnte.  §  6.38.  States.  82  Fed.  2.3:   Hitch    v.  United 

iTAct  June  6,  1900.  c.  701,  31  Stat.  States.   66    Fed.    937;    United    States 

(;;59.  V.    Harmon.    147    U.    S.    2<58,    37    L. 

'**Ante.  §  &21.     For  cases  concern-  ed.  164.  13  Sup.  Ct.  Rep.  327;    United 

inpr  niileap;e  of  marshals  prior  to  act  States    v.    Fletcher,    147    U.    S.    6((4. 

of    ISO;-,,    see    Dnnaliower    v.    United  37  L.  ed.  322.  13  Sup.  Ct.  Rep.  434; 

Stales.  85  Fed.  54.5.  29  C.  C.  A.  3.39;  Campbell   v.   United    States,   Go   Fed. 

I'ul.-Mon    V.    United    States.    88    Fed.  777.    13  C.  C.  A.   128. 


is   71G  FEES  [Code  Fed.. 

or  other  officer  authorized  by  law  to  take  such  recognizance,  requir- 
ing the  appearance  of  such  person  or  persons  before  the  court  in 
whicli  such  indictment  is  found  or  information  is  filed,  and  when 
such  recognizance  has  not  been  forfeited  or  said  defendant  is  not 
in  default,  unless  the  court  in  which  such  indictment  or  informa- 
tion is  pending,  orders  a  warrant  to  issue. 

From  appropriation  act  of  Mar.  3,  1SS7,  c.  362,  24  Stat.  541,  U.  S.  Comp, 
Stat.  1901,  p.  640. 

Similarly  R.  S.  §  1030,  provides  that  no  fee  be  charged  for  bringing  a  per- 
son in  custody  into  court.is  The  charging  of  fees  against  the  United  States 
except  in  certain  districts  was  done  away  with  by  the  act  of  1896.2  0 

§  716.     Fees  of  attorneys,  solicitors  and  proctors. 

On  a  trial  before  a  jury,  in  civil  or  criminal  causes  or  before- 
referees,'^^^"'^'^^  or  on  a  final  hearing  in  equity  or  admiralty, ^^'^  a 
docket  fee  of  twenty  dollars :  Provided,  that  in  cases  of  admiralty 
and  maritime  jurisdiction,  where  the  libelant  recovers  less  than 
fifty  dollars,  the  docket  fee  of  his  proctor  shall  be  but  ten  dollars. 
In  cases  at  law,  when  judgment  is  rendered  without  jury,  ten  dol- 
lars. In  cases  at  law,  when  the  cause  is  discontinued,  five  dollars. 
For  scire  facias,  and  other  proceedings,  on  recognizances,  five  dol- 
lars. For  each  deposition  taken  and  admitted  in  evidence  in  a 
cause,  two  dollars  and  fifty  cents. f*^^  For  services  rendered  in  cases 
removed  from  a  district  to  a  circuit  court  by  writ  of  error  or  ap- 
peal, five  dollars.  For  examination  by  a  district  attorney,  before 
a  judge  or  commissioner,  of  persons  charged  with  crime,  five  dol- 
lars a  day  for  the  time  necessarily  employed.  For  each  day  of 
his  necessary  attendance  in  a  court  of  the  United  States,  on  the 
business  of  the  United  States,  when  the  court  is  held  at  the  place 
of  his  abode,  five  dollars;  and  for  his  attendance  when  the  court  is 
held  elsewhere,  five  dollars  for  each  day  of  the  term.  For  traveling 
from  the  place  of  his  abode  to  the  place  of  holding  any  court  of 
the  United  States  in  his  district,  or  to  the  place  of  any  examina- 
tion before  a  judge  or  commissioner,  of  a  person  charged  with 
crime,  ten  cents  a  mile  for  going  and  ten  cents  a  mile  for  return- 
ing. When  an  indictment  for  crime  is  tried  before  a  jury  and  con- 
viction is  had,  the  district  attorney  may  be  allowed,  in  addition 

19 See  post.  S  1584. 
20Post,  §  745. 

fi70 


I 


Procedure]         OF  ATTORNEYS,  SOLICITORS  AND  PROCTORS.  §   716   [bj 

to  the  attorney's  fees  herein  provided,  a  counsel  fee,  in  proportion  tO' 

the  importance  and  difficulty  of  the  cause,  not  exceeding  thirty 

dollars. 

R.  S.  §  824,  U.  S.  Comp.  Stat.  1901,  p.  632. 

[aj    In  general. 

E,.  S.  §  8381  contains  certain  provision  for  fees  for  district  attorneys  in 
revenue  suits.  The  application  of  this  and  the  three  following  sections 
to  the  compensation  of  district  attorneys  is  superseded  except  in  the  District 
of  Colurabia,2  since  by  an  act  of  1896,  such  officers  now  receive  salaries 
in  lieu  of  fees.3  That  act,  however,  expressly  provides  that  the  fees  of 
such  officers  shall  be  collected  as  far  as  possible,  except  as  against  the 
United  States,  and  covered  into  the  United  States  Treasury. 4  Where 
several  suits  are  brought  instead  of  a  joint  action  the  district  attorney  is 
limited  to  one  bill  of  costs. 5 

Prior  to  an  act  of  1853  from  which  the  above  provision  was  taken,  the 
state  practice  was  followed  in  the  taxing  of  costs,6  and  the  object  of  this 
provision  was  to  secure  a  uniformity  in  such  taxation.^  It  does  not  pre- 
vent attorneys,  solicitors  and  proctors  from  making  a  reasonable  charge  in 
addition.  8 

[bj     Docket  fee  on  trial  before  jury  or  referee. 

A  docket  fee  is  to  be  taxed  upon  a  final  trial  before  a  jury. 12  It  is 
taxable  where  a  verdict  is  reachedi3  and  three  docket  fees  have  been  al- 
lowed in  the  same  suit  where  there  have  been  three  verdicts, 14  but  it  can- 
not be  taxed  where  the  jury  disagrees, 1 5  or  is  waived  by  the  parties. is  An 
action  at  law  referred  by  consent  to  a  special  master  is  a  trial  before 
a  referee  within  the  meaning  of  the  provision.i^  But  an  informal  refer- 
ence to  a  collector  to  adjust  amount  of  recovery  of  excess  duties  is  not. is 

iSee  ante,  §  542.  sPost.  §  1836. 

2Ante,    §    509    [d]  eprimrose  v.  Fenno,  113  Fed.  376. 

3Ante,   §   633.  7Celluloid  Mfg.  Co.  v.  Chandler,  27 

■iPost  §  745;   for  decisions  respect-  Fed.  12. 

ing   district  attornevs   fees   prior   to  ^The    Ealfimore,    8   Wall.    392,    19 

act  of   1896,    see    Bashaw   v.   United  L.  ed.  463. 

States,  47  Fed.  40;  Stanton  V.  United  12  Williams    v.    Morrison,    32   Fed. 

States,    37    Fed.    252;    United    States  682. 

v.  Perry,  50  Fed.  745,  1  C.  C.  A.  648;  isWooster  v.  Handy,  23  Fed.  49. 

United    States    v.    Colman,    76    Fed.  i^Schmieder  v.  Barney,  7  Fed.  451. 

214,  22  C.  C.  A.  135;    Ignited  States  isStrafer    v.    Carr.    6    Fed.    466; 

V.   Jones,    1.34   U.    S.    4S3.   33    L.   ed.  Huntress    v.    Epsom,    15    Fed.    732; 

1007,  10  Sup.  Ct.  Rep.  615;    United  Cleaver  v.  Traders  Ins.  Co.   40  Fed. 

States  V.   Smith.    1,58   U.   S.   346,   39  863. 

L.   ed.    1011,   15   Sup.   Ct.   Rep.   846;  lejones   v.    Schell,    8    Blatchf.    79, 
Sill  V.  United  States.  87  Fed.  699,  31  Fed.  Cas.  No.  7.493. 
C.  C.  A.  200;    United  States  v.  Stan-  ivSt.  Matthews,  etc.  Bank  v.  Fidel- 
ton,  70  Fed.  890.  17  C.  C.  A.  475;  Van  ity,   etc.   Co.    105   Fed.    161. 
Hoorebiker  v.  United  States,  46  Fed.  isField   v.    Schell,   4   Blatchf.   437, 
468.  Fed.  Cas.  No.  4,771. 

671 


§   716   [c]  FEES  (Code  Fed. 

"Referee"  does  not  inulude  masters  in  chancery.  19  A  docket  fee  cannot  be 
taxed  in  favor  of  a  person  appearing  in  his  own  behalf. 20  It  is  the  in- 
dividual property  of  the  attorney  or  proctor.21  The  practice  on  allowance 
of  docket  fees  on  remand  of  removed  causes  to  state  court,  is  not  uniform. 
In  the  seventh  circuit,  they  are  disallowed  under  the  uniform  practice,22 
in  the  western  district  of  Michigan  the  full  fee  has  been  allowed,i  while 
in  South  Carolina  and  in  the  eastern  district  of  Wasliinglon  a  ten  dollar 
fee  has  been  allowed  as  for  a  judgment  rendered  without  a  jury. 2 

[c]     — on  final  hearing  in  equity  or  admiralty. 

A  final  hearing  within  the  meaning  of  the  provision  is  a  submission  of 
a  case  for  determination  upon  its  merits,  or  the  submission  of  some  ques- 
tion the  disposition  of  which  finally  ends  the  case.*  The  sustaining  of  a 
demurrer  and  the  dismissal  of  the  bill  is  a  final  hearing  on  which  a  docket 
fee  may  be  taxed, 5  as  is  also  a  final  decree  on  an  order  pro  eonfesso.6  A 
docket  fee  may  be  charged  in  a  libel  of  intervention  where  the  parties 
stipulate  for  a  decree  in  favor  of  the  intervenors;'  but  it  has  been  re- 
fused an  intervenor  whose  claim  has  been  allowed  against  a  receiver  in  a 
suit. 8  There  apparently  must  be  something  more  than  a  mere  formal  ac- 
tion of  the  court,  to  entitle  a  party  to  a  docket  fee.9  None  may  be  charged 
where  the  defendant  pays  into  court  the  amount  of  the  claim  in  a  suit 
for  salvage, 10  nor  on  a  proceeding  before  a  commissioner  on  reference.il 
No  docket  fee  is  taxable  where  the  suit  is  voluntarily  discontinued  by  the 
plaintiflf;i3  as  upon  a  consent  stipulation  before  decision; i*  or  where  is- 
sue has  been  joined  on  demurrer  only,  no  evidence  having  been  taken; is 
or  after  overruling  of  demurrer  but  before  replication  filed;  16  or  after 
issue  joined  but  before  taking  of  proof, it  or  where  a  decree  is  final  only 
as  to  an  interlocutory  motion. is  But  the  docket  fee  may  be  taxed  where 
the  plaintiff  discontinues  after  the  court  has  substantially  decided  the 
merits  of  the  case,  either  by  an  opinion   expressed  at  the  hearing  on  the 

i9See    Central    Trust    Co.    v.    Wa-  sMerritt,  etc.  Co.  v.   Catskill.  etc. 

bash.  etc.  R.  Co.  32  Fed.  68-5.  Co.  112  Fed.  442;  Kaempfer  v.  Tav- 

20Gorse  v.  Parker,  3G  Fed.  840.  lor.  78  Fed.  795. 

2iThe     Mount     Eden,  87  Fed.  48.'? ;  lOMerritt,  etc.  Co.  v.  Catskill.  etc. 

Aiken    v.    Smith,    57    Fed.    423,    6    C.  Co.  112  Fed.  442. 

C.  A.  414.  iiThe  Mount  Eden.  87   Fed.  483. 

2  2Smith   V.   Western,   etc.   Tel.    Co.  isYiile    Lock.    etc.    Co.    v.    Colvin, 

SI  Fed.  242.  14   Fed.  269;    Luxfer.  etc.   Co.  v.  El- 

iJosslyn    V.   Phillips.    27    Fed.   481.  kins.  99  Fed.  29:   Ryan  v.  Gould,  32 

2Riser    v.    Southern    Ry.    llfi    Fed.  Fed.   754:   but   see  Goodvear  v.  Saw- 

1014;   Pellett  v.  Great  Northern  Rv.  ver,  17  Fed.  2. 

105  Fed.  195.                                           '  "     i4De  Roux  v.  Girard.  92  Fed.  948; 

4See  Wooster  v.  Handy.  23  Fed.  5(5;  Cahn  v.  Qung  Lung.  28  Fed.  396. 

Gov    v.    Perkins,    13    Fed.    112;    The  isCoy  v.   Perkins.   13   Fed.   111. 

Mount  Eden,  87  Fed.  483.  isMercartney  v.  Crittenden,  24  Fed. 

BPrice    v.    Coleman.    22    Fed.    694;  401. 

McLean  v.  Clark,  23  Fed.  861.  1 '^Consolidated,   etc.   Co.  v.  Ameri- 

6Andrews  v.  Cole.  20  Fed.  410.  can.  etc.  Co.  24  Fed.  658. 

7The  H.  C.  Grady.  87  Fed.  483.  is  Peck.   etc.   Co.   v.  Fray,   92  Fed. 

sMissouri,   etc.    Ry.   v.    Texas,   etc  947. 
Ry.  3S   Fed.  775. 

G72 


Procedure]       OF  ATTORNEYS,  SOLICITORS  AND  PROCTORS.  §   716    [dl 

merits,! 9  or  on  a  previous  interlocutory  decree,20  or  where  the  court  on 
the  hearing  of  a  provisional  injunction,  has  expressed  views  unfavorable 
to  complainant. 21  It  has  been  taxed  on  a  motion  by  defendant  to  dis- 
miss, for  want  of  prosecution,  upon  the  death  of  plaintiff. i  \\Tiere  there 
has  been  a  final  hearing  and  a  rehearing  in  an  equity  case  two  docket  fees 
have  been  allowed.3  Docket  fees  are  allowed  also  by  the  Supreme  Court 
to  the  prevailing  party  on  appeal,  and  this  practice  has  been  followed  by 
the  circuit  court  of  appeals.* 

[dj     Taking  of  depositions. 

The  deposition  must  be  taken  in  a  cause  and  admitted  in  evidence,  to 
entitle  an  attorney  to  his  fee  under  this  section. »  It  is  immaterial  before 
what  officer  it  is  taken. 9  Thus,  he  is  entitled  where  evidence  is  taken  by 
a  master,  referee,  or  examiner,  by  courts  order,  and  used  at  a  trial  before 
the  court.io  But  oral  testimony  given  before  a  master,  in  a  case  tried 
by  him,  although  taken  by  a  stenographer  and  returned  with  his  report  is 
not  a  deposition.il  The  deposition  must  have  been  admitted  in  evidence.  12 
Hence  when  a  case  is  dismissed  without  a  hearingis  or  ordered  discon- 
tinued,! •*  or  verdict  is  directed  on  opening  statement  of  the  attorney,!  5 
deposition  fees  cannot  be  allowed;  nor  can  they  be  allowed  where  the  party 
conducts  his  own  litigation.' 6  Since  the  depositions  must  be  "taken"  aa 
well  as  "admitted  in  evidence"  in  the  cause,  it  would  seem  that  fees  can- 
not be  taxed  therefor  when  used  in  another  suit,!  7  especially  where  the 
party  seeking  to  tax  them  has  incurred  no  expense.! «  But  where  a  deposi- 
tion is  entitled  in  each  case  and  the  witness  sworn  in  each,  it  has  been 
held  taxable  in  each.!  9 

Depositions  to  be  taxable,  must  have  been  taken  for  use  in  final  pro- 
ceedings. 20  Those  taken  by  an  intervener  to  support  his  claim  against  a 
receiver,2  or  taken  for  use  on  motion  for  a  preliminary  injunction, 3  or  for  a 
collateral  proceeding  for  contempt,*   or  for  use  in  distribution  of  an  ad- 

isThe  Bay  City,  3  Fed.  47.  isCahn  v.  Qung  Lmng,  28  Fed.  396. 

zoOoodyear,  etc.  Co.  v.  Osgood.  Fed.  i^Kaempler  v.  Tavlor,  78  Fed.  735. 
Cas.  No. '5,594.  isCahn    v.    Monroe.    29    Fed.    675. 

2!Carter  v.  Sweet,  84  Fed.  17.  isGorse  v.  Parker,  36  Fed.  840. 

iPartee  v.  Thomas,  27  Fed.  433.  iTWooster  v.   Handy,   23   Fed.   49; 

sAmerican,  etc.  Co.  v.  Sheldon,  28  American,    etc.    Boring   Co.   v.    Shel- 

Fed.  217.    See  also  Wooster  v.  Handv,  don.  28  Fed.  217;  Carj-  v.  Lovell  Mfg. 

23  Fed.  49.  '  Co.  39  Fed.  163.    But  see  contra  Jer- 

♦Shillito  Co.  V.   McClung,  66   Fed.  man  v.  Stewart,  12  Fed.  271. 
22,  13  C.  C.  A.  284.  isWinegur  v.  Cahn.  29  Fed.  676. 

sindianapolis  Water  Co.  v.  Straw-        19 Wooster   v.   Handy,    23    Fed.    49. 

Board  Co.   65  Fed.   535.  See  also.  Archer  v.  Hartford  Ins.  Co. 

sFerguson  v.  Dent.  46  Fed.  88.  31    Fed.    600. 

lost.   Matthews,   etc.    Bank    v.    Fi-        20Stinipson    v.    Brooks,    3    Blatchf. 

delity,    etc.    Co.    105    Fed.    162 :    The  456,   Fed.    Cas.   No.    13,454. 
Sallie  P.  Linderman,  22  Fed.  557.  2.-,ee  Ferguson  v.  Dent.  46  Fed.  93. 

list.  Matthew,  etc.  Bank  v.  Fidel-        sCentral  Trust  Co.  v.  Wabash,  etc. 

itv  Co.  105  Fed.  161.  Rv.    32    Fed.    684. 

'i2Barnardin    v.    Northall.   83   Fed.  '4Spill    v.    Celluloid    Mfg.    Co.    28 

241.  Fed.  870. 
Fed.  Proc— 43.                                 673 


§   717  FEES.  [Code  Fed. 

miralty  fund,5  have  been  held  nontaxable.  But  depositions  taken  for  hear- 
ing on  a  preliminary  injunction  not  used  except  upon  final  hearing  have 
been  held  taxable. 6  When  taken  separately  each  is  taxable,  although  re- 
turned to  court  in  one  enclosure.^  Informalities  in  the  taking  may  be 
waived. 8 

§  717.  Percentage  of  recovery  for  district  attorneys  in  reve- 
nue cases  in  lieu  of  fees. 
There  shall  be  taxed  and  paid  to  every  district  attorney  two 
per  centum  upon  all  moneys  collected  or  realized  in  any  suit  or 
proceeding  arising  under  the  revenue  laws,  and  conducted  by  him, 
in  which  the  United  States  is  a  party,  which  shall  be  in  lieu  of 
all  costs  and  fees  in  such  proceeding. 

R.  S.  §  825,  U.  S.  Comp.  Stat.  1901,  p.  634. 

In  1896  Congress  inaugurated  the  practice  of  paying  salaries  to  district 
attorneys  in  lieu  of  fees  and  forbidding  the  charging  of  fees  against  the 
United  States,  except  in  the  District  of  Columbia  and  the  southern  district 
of  New  York. 10  In  1905  fees  in  addition  to  salary  were  everywhere  for- 
bidden to  district  attorneys  except  in  the  District  of  Columbia.!!  Hence 
the  above  section  can  only  apply  now  to  the  District  of  Columbia. 

§  718.     When  no  district  attorneys  fee  on  bonds. 

No  fee  shall  accrue  to  any  district  attorney  on  any  bond  left 
with  him  for  collection,  or  in  a  suit  commenced  on  any  bond  for 
the  renewal  of  which  provision  is  made  by  law,  unless  the  party 
neglects  to  apply  for  such  renewal  for  more  than  twenty  days  after 
the  maturity  of  the  bond. 

R.  S.  §  826,  U.  S.  Comp.  Stat.  1901,  p.  634. 

The  provision  is  now  apparently  applicable  only  in  the  District  of  Co- 
lumbia.! 2 

§  719.     Allowance  to  district  attorney  for  defense   of  revenue 

officers. 

When  a  district  attorney  appears  by  direction  of  the  Secretary 

or    Solicitor   of   the    Treasury,   on   behalf   of    any    officer    of    the 

revenue  in  any  suit  against  such  officer,  for  any  act  done  by  him, 

BDalzell   V.   The   Daniel   Kaine,   31  !0See  post,  §  745. 

Fed.  747.  iiAnte,    §    509    [d].      This    provi- 

6 Indianapolis  Water  Co.  v.  Ameri-  sion        was        presumably      directed 

can,  etc.  Co.  65  Fed.  534.  against    the    ofRce    in    the    southern 

TBroyles  v.   Buck,  37  Fed.   137.  district  of  New  York. 

sindianapolis  Water  Co.  v.  Ameri-  i2Ante,  §  717,  note, 
can,  etc.  Co.  65  Fed.  534. 

674 


fl 


Procedure]  NO  ALLOWANCE    FOR   RULE  DAYS.  §   721 

or  for  the  recovery  of  any  money  received  by  him  and  paid  in- 
to the  Treasury  in  the  performance  of  his  official  duty,  he 
shall  receive  such  compensation  as  may  be  certified  to  be  proper 
by  the  court  in  which  the  suit  is  brought,  and  approved  by  the  Sec- 
retary of  the  Treasury. 

R.  S.  §  827,  U.  S.  Comp.  Stat.  1901,  p.  634. 

District  attorneys  are  now  on  a  salary  basis  except  in  the  District  of 
Columbia.  13 

§  720.     Double  district  attorney  and  marshal  fees  in  Oregon  and 
Nevada. 
The  district  attorneys  and  marshals  for  the  districts  of  Oregon 
and  Nevada  shall  be  entitled  to  receive,  for  the  like  services,  double 
the  fees  hereinbefore  provided;  but  neither  of  them  shall  be  allowed 
to  retain  of  such  fees  any  sum  exceeding  the  aggregate  compensa- 
tion of  such  officer  as  hereinbefore  provided. 
R.  S.  §  837,  U.  S.  Comp.  Stat.  1901,  p.  644. 

Marshals  and  district  attorneys  in  the  districts  mentioned  are  now  on  a 
salary  basis,i4  hence  the  section  no  longer  applies  to  their  compensation, 
although  it  would  seem  still  to  fix  the  fees  there  taxable  to  litigants 

§  721.     No  allovi'ance  to   attorney,   clerk,   or  marshal  for  rule 
days,  nor  double  allowance  when  both  courts  sit  at 
same  time. 
No  per  diem  or  other  allowance  shall  be  made  to  any  district 
attorney,  clerk  of  circuit  court,  clerk  of  a  district  court,  marshal  or 
deputy  marshal,  for  attendance  at  rule  days  of  a  circuit  or  district 
court;  and  when  the  circuit  and  district  courts  sit  at  the  same  time 
no  greater  per  diem  or  other  allowance  shall  be  made  to  any  such 
officer  than  for  an  attendance  on  one  court. 
R.  S.  §  831,  U.  S.  Comp.  Stat.  1902,  p.  640. 
Clerks  per  diem  fees  are  set  forth  in  a  previous  section. 1 6     District  at- 
torneys ami  marshals  are  now  paid   salaries,i7   except  in  the  District   of 
Columbia.i?     The  section  does  not  prohibit  a  per  diem  charge  both  by  the 
clerk  and  his  deputy  where  the  former  attends  court  in  one  place  and  the 
latter  in  another,  at  the  same  time.is 

isAnte,  §   717,  note.  isAnte.  §  717  note. 

KAnte,  S§  033.  509.  isUnited    States   v.    King,    147    U. 

i6Ante,  §  706.  S.    676,   37   L.   ed.   328,    13    Sup.   Ct. 

l7Aiite,   §§   633,  509.  Rep.  439. 

675 


i   T^'-i  FEES  [Code  Fed. 

§  722.     Attorneys,  clerks  and  marshal's  fees  under  civil  rights 
law. 

The  district  attorneys,  marshals,  their  deputies,  and  the  clerks 
of  the  courts  of  the  United  States  and  territorial  courts  shall  be 
paid  for  their  services,  in  cases  under  the  foregoing  provisions  [i.  e., 
under  the  civl  rights  law],  the  same  fees  as  are  allowed  to  them  for 
like  services  in  other  cases. 

Part  of  R.  S.  §  198G,  U.  S.  Corap.  Stat.  1901,  p.  1265. 

Clerks  fees  are  set  forth  in  previous  sections. i  District  attorneys  and 
marshals  are  now  paid  sahiries,2  though  the  fees  previously  provided  are 
still  required  to  be  collected  except  in  the  case  of  the  United  States.s  The 
omitted  part  of  the  section  prescribed  a  fee  of  ten  dollars  to  commissionera 
for  services  in  civil  rights  cases,  but  it  may  be  regarded  as  superseded  by 
the  following  section. 

§  723.     Fees   of  United  States   commissioners. 

Each  United  States  commissioner  shall  be  entitled  to  the  follow- 
ing named  fees,  and  none  other:  drawing  a  complaint,  with  oath 
and  jurat  to  same,  fifty  cents;  copy  of  complaint,  with  certificate 
to  same,  thirty  cents;  issuing  warrant  of  arrest,  seventy-five  cents; 
issuing  a  commitment  and  making  copy  of  same,  one  dollar ;  enter- 
ing a  return,  fifteen  cents;  issuing  subpoena  or  subpoenas  in  any 
one  case,  with  five  cents  for  each  necessary  witness  in  addition  to 
the  first,  twenty-five  cents ;  drawing  a  bond  of  defendant  and  ^-u^e- 
ties,  taking  acknowledgment  of  same  and  justification  of  sureties, 
seventy-five  cents;  for  administering  an  oath  (except  to  Avitness 
as  to  attendance  and  travel),  ten  cents;  recognizance  of  all  wit- 
nesses in  a  case,  when  the  defendant  or  defendants  are  held  "for 
court,  fifty  cents;  transcripts  of  proceedings,  when  required  by 
order  of  court  and  transmission  of  orignal  papers  to  court,  sixty 
cents;  copy  of  warrant  of  arrest,  with  certificate  to  same,  when  de- 
fendant is  held  for  court,  and  the  original  papers  are  not  sent  to 
court,  forty  cents ;  order  in  duplicate  to  pay  all  witnesses  in  a  case : 
For  first  witness,  thirty  cents,  and  for  each  additional  witness,  five 
cents,  and  for  oath  to  each  witness  as  to  attendance  and  travel, 
five  cents;  for  hearing  and  deciding  on  criminal  charges  and  re- 
ducing the  testimony  to  writing  when  required  by  law  or  order  of 
court,  five  dollars  a  day  for  the  time  necessarily  employed ;   Pro- 

lAnte.  §§  706.  708,  710.  3Ante,  §   712   [a];   post,  §  745. 

2Ante   §§    509,   633. 

676 


II 


Froeediire]  OF    UNITED   STATES    COMMISSIONERS.  §   723 

vided.  that  not  more  than  one  per  diem  shall  be  allowed  in  a  case, 
unless  the  account  shall  show  that  the  hearing  could  not  be  com- 
pleted in  one  day,  when  one  additional  per  diem  may  be  especially 
approved  and  allowed  by  the  court:  Provided,  further,  that  not 
more  than  one  per  diem  shall  be  allowed  for  any  one  day :  Provided, 
further,  that  no  per  diem  shall  be  allowed  for  taking  a  bond  or 
recognizance  and  passing  on  the  sufficiency  of  the  bond  or  recogni- 
zance and  the  sureties  thereon  when  the  bond  or  recognizance  was 
taken  after  the  defendant  had  been  committed  to  prison  upon  a 
final  commitment,  or  has  given  bond  or  been  recognized  for  his 
appearance  at  court,  or  when  the  defendant  has  been  arrested  on 
a  capias  or  bench  warrant,  or  was  in  custody  under  any  process  or 
order  of  a  court  of  record.  For  the  examination  and  certificate  in 
cases  of  application  for  discharge  of  poor  convicts  imprisoned  for 
nonpayment  of  fine  or  fine  and  costs,  and  all  services  connected 
therewith,  three  dollars ;  for  attending  to  a  reference  in  a  litigated 
matter,  in  a  civil  cause  at  law,  in  efjuity,  or  in  admiralty,  in  pur- 
suance of  an  order  of  the  court,  three  dollars  a  day ;  for  taking  and 
certifying  depositions  to  file  in  civil  cases,  ten  cents  for  each  folio; 
for  each  copy  of  the  same  furnished  to  a  party  on  request,  ten  cents 
for  each  folio ;  for  issuing  any  warrant  under  the  tenth  article  of 
the  treaty  of  August  9,  1842,  between  the  United  States  and  the 
Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland, 
against  any  parties  charged  with  any  crime  or  offense  set  forth  in 
said  article,  two  dollars;  for  issuing  any  warrant  under  the  pro- 
vision of  the  convention  for  the  surrender  of  criminals  between  the 
United  States  and  the  the  King  of  the  French,  concluded  at  Wash- 
ington, November  9,  1843,  two  dollars:  for  hearing  and  deciding 
upon  the  case  of  any  person  charged  with  any  crime  or  offense,  and 
arrested  under  the  provisions  of  said  treaty  or  of  said  convention, 
five  dollars  a  day  for  the  time  necessarily  employed. 

Part  of  §  21,  act  May  28,  1896,  c.  252,  29  Stat.  184,  U.  S.  Comp.  Stat. 
1901,  pp.  652,  653. 

This  section  supersedes  the  provision  of  the  extradition  act  of  1882  as 
to  commissioners  fees,5  also  the  general  provisions  of  R.  S.  §  847,  and  part 
of  R.  S.  §  1986.6  It  supersedes  also  the  provision  of  an  act  of  1886. t  pro- 
scribing compensation  for  issuing  warrants  etc.,  which  superseded  a  chiuse 

6See  §  2,  a«t  Aug.  3,  1882,  c.  378,  ^Act  Aug  4,  1S86,  c.  903,  24  Stat. 
22  Stat.  215.  274. 

6See  ante.  §  722.  note. 

677 


§   724  FEES.  [Code  Fed. 

of  R.  S.  §  8-17.  By  §  24  of  the  act  from  which  this  section  is  taken,  it 
does  not  apply  to  Alaslva,^  nor  does  it  apply  to  the  Indian  Territory. 9  The 
general  provisions  as  to  commissioners,  their  appointment  and  duties,  etc. 
have  already  been  eonsidered.io  Gratuitous  services  are  not  to  be  implied 
in  the  case  of  a  Federal  officer  receiving  compensation  on  a  fee  basis,! i 
and  the  construction  of  a  general  statute  prescribing  compensation  should 
be  in  his  favor.i2  The  old  fee  bill  as  prescribed  in  R.  S.  §  847,  remained 
in  force  until  July  1,  1897,  when  United  States  commissioners  were  ap- 
pointed.is  Some  of  the  leading  cases  construing  that  section  will  be  found 
in  the  foot  note.i* 

§  724.  — in  cases  under  Chinese  exclusion  laws. 

A  United  States  commissioner  shall  be  entitled  to  receive  a  fee 
of  five  dollars  for  hearing  and  deciding  a  case  arising  under  the 
Chinese  exclusion  laws. 

§  2  of  act  Mar.  3,  1901,  c.  845,  31  Stat.  1093,  U.  S.  Comp.  Stat.  1901, 
p.l328. 

§  725.     Witness  fees. 

For  each  day's  attendance  in  court,  or  before  an}^  officer  pur- 
suant to  law,  one  dollar  and  fifty  cents,  and  five  cents  a  mile  for 
going  from  his  place  of  residence  to  the  place  of  trial  or  hearing, 
and  five  cents  a  mile  for  returning.  When  a  witness  is  subpoenaed 
in  more  than  one  cause  beween  the  same  parties,  at  the  same  court, 
only  one  travel  fee  and  one  per  diem  compensation  shall  be  allowed 
for  attendance.  Both  shall  be  taxed  in  the  case  first  disposed  of, 
after  which  the  per  diem  attendance  fee  alone  shall  be  taxed  in  the 
other  cases  in  the  order  in  which  they  are  disposed  of.     When  a 

8Act  May  28,  1896,  c.  252,  §  24,  29  United   States   v.   Allred,   155   U.    S. 

Stat.  186.  591,  39  L.  ed.  273,  15  Sup.  Ct.  Rep. 

9 Act  Feb.  19',  1897,  c.  265,  §  1,  29  231;    In    re    Gourdin,    45    Fed.    842; 

Stat.    577.  Clough  v.  United  States,  55  Fed.  921 ; 

loAnte,  §  672,  et  seq.  United  States  v.  Ewin.  140  U.  S.  142, 

iiPoinier  v  United  States,  40  Fed.  35    L.    ed.    388,    11     Svi«p.    Ct.    Rep. 

141.  743;    United    States    v.    Barber,    140 

i2United  States  v  Morse,  3  Story,  U.  S.  164.  35  L.  ed.  396,  11  Sup.  Ct. 

87,  Fed.  Gas.  No.  15,820.  Rep.    749;    mittimus    writs,    Clough 

isM'Gourin  v.   United  States,   102  v.  United  States,  47  Fed.  791;   Hey- 

Fed  559.  ward  v.  United  States,  37  Fed.  764; 

i^Complaints   and  affidavits.  Rand  Marvin    v.    United    States,    44    Fed. 

v.   United    States,   48    Fed.   357 ;    Mc-  405 ;  recognizances,  Hallett  v.  United 

Dermott   v.    United    States,    40   Fed  States,  63  Fed.  817;  per  diems,  Unit- 

217:   United  States  v.  Ewing.  140  U.  ed    States   v.   Rand,    53   Fed.  348,  3  C. 

S.    142,    .35    L.    ed.    388,    11    Sup.    Ct.  C.     A.     556;      McGourin     v.     United 

Rep.      743;      subpoenas,      McKinstrv  States.   102  Fed.  553;   United   States 

V.     United     States.     34     Fed.     211*;  v.   Ewing,    140   U.    S.    142,   35   L.   ed. 

Jones     V.     Unitea     States,     30     Fed.  S8S,    11    Sup.   Ct.   Rep.    743. 
410;     Oaths    and    acknowledgments, 

678 


I 


Procedure]  WITNESS    FEES.  §  725 

witness  is  detained  in  prison  for  want  of  security  for  his  appear- 
ance, he  shall  be  entitled,  in  addition  to  his  subsistence,  to  a  com- 
pensation of  one  dollar  a  day. 

R.  S.  §  848,  U.  S.  Comp.  Stat.  1901,  p.  654. 

This  provision  was  enacted  in  1853.16  The  extradition  act  of  1882  con- 
tains provision  for  payment  by  United  States  of  fees  of  indigent  defend- 
ant.!^ By  an  act  of  1892,  increased  mileage  is  allowed  witnesses  in  certain 
states.  18  A  witness  is  entitled  to  fees  and  mileage  although  the  attend- 
ance is  voluntary,  if  in  good  faith,  1 9  nor  is  it  necessary  that  he  be  called 
and  sworn. 2  0  A  witness  in  a  civil  suit  cannot  be  compelled  by  subpoena 
to  attend  court  when  living  out  of  the  district  at  a  distance  exceeding  one 
hundred  miles  from  the  place  of  trial, i  and  the  authorities  are  at  variance 
as  to  whether  full  mileage  of  such  a  witness,  living  at  a  greater  distance  is 
taxable  on  his  voluntary  attendance.  In  the  first  circuit  full  mileage  is 
taxed,  2  and  the  same  rule  is  followed  in  the  District  of  Columbia.  3  In  the  sec- 
ond circuit  mileage  is  taxable  in  such  a  case  only  up  to  one  hundred  miles, * 
and  the  same  rule  is  followed  in  the  ninth  circuit, 5  and  in  the  circuit  courts 
in  Tennessee,^  South  Carolina,'^  Wisconsin,s  Iowa,9  and  Arkansas.! o  The 
fact  that  depositions  may  be  taken  in  such  a  case  has  been  the  reason  as- 
signed for  the  latter  rule.n  Whether  taxable  or  not  however,  a  volun- 
tary witness  is  entitled  to  hold  the  party  at  whose  instance  he  comes,  to 
mileage,  whatever  the  distance  traveled,  and  to  fees,i2  in  the  absence  of 
other  agreement.13  Where  under  an  agreement  with  a  witness,  a  party 
secures  his  services  at  less  than  the  statutory  amount,  only  the  amount 

i6Act  Feb.   26,   1853,   c.   80   ,   §   3,  6,213;     United     States    v.    Sanborn, 

10  Stat.  167.  28   Fed.   299. 

iTSee  post,  §  1744.  3 Washington,  etc.  R.  R.  v.  Car  Co. 

IS  Post,  §  734,  witness  for  payment  5  App.  Cas.  528. 

of  fees  in  prize  cases  and  where  Unit-  •iBeckwith   v.   Easton,  4  Ben.  358; 

ed   States    is   a   party,   see    post,    §§  Fed.  Cas.  No.  1.212;  Buffalo  Ins.  Co. 

743,  738.  V.  Providence,  etc.  Co.  29  Fed.  237; 

isPinson   v.   Atchison,    etc.    R.    R.  The  Syracuse  36  Fed.  830. 

54  Fed.   464;   United   States  v.   San-  sRanchett  v.    Humphrey,    93    Fed. 

born,     28     Fed.     299;     Hanchctt     v.  895. 

Humphrey,  93  Fed.  895;  Eastman  v.  sBurrow  v.  Kansas  City  R.  Co.  54 

Sherry,  37  Fed.  845;  Burrow  v.  Kan-  Fed.  278. 

sas,  etc.  R.   Co.   54  Fed.  278;    Sloss,  'In    re    Williams,    37    Fed.    325. 

etc.    Co.   V.    South    Carolina,   etc.    R.  ^Eastman  v.   Sherry,  37   Fed.   844. 

Co.     75    Fed.     106.       See     however,  oSmith    v.    Chicago,    etc.    Ry.    Co. 

Spaulding  v.  Tucker.  2  Sawy.  50,  Fed.  38  Fed.   321. 

Cas.  Xo.  13.221  ;  Haines  v.  McLaugh-  loGriirgsbv   v.   Louisiana,   etc.    Co. 

lin,  29  Fed.  70;   Lillinethall  v.  Rail-  123    Fed.    751. 

way  Co.  61  Fed.  622.  iiSee   Hanchett   v.   Humphrey,   93 

20Clark   v.   American,    etc.   Co.   25  Fed.  895. 

Fed.  641.  i2Smith  v.  Chicago,  etc.  R.  Co.  38 

iPost,  §  1742.  Fed.  321. 

2Proutv   V.    Draper.    2   Storv.    190,  1 3 See  Spaulding  v.  Tucker,  2  Sa^vy. 

Fed.    Cas.    Xo.    11,447;    ^Miipple    v.  50,  Fed.  Cas.  Xo.  11.447;   Burrow  v. 

Cumberland,    etc.     Co.     3    Storv.   84,  Kansas    City,    etc.    R.    Co.    54    Fed. 

Fed.   Cas.   Xo.    17.515;    Hathawav   v.  284. 
Roach.  2  W.  &  M.  63.  Fed.  Cas.  Xo. 

679 


i  726  FEES  [Code  Fed. 

agreed  upon  can  be  taxed.i^  The  claim  of  the  witness  to  fees  is  enforce- 
able onlj'  against  the  party  for  whom  the  services  were  renderel,  and  is 
not  a  debt  due  directly  from  the  losing  party.is  Extra  compensation  for 
expert  witnesses  cannot  be  allowed  or  taxed,i6  nor  fees  for  the  time  used 
in  going  to  and  returning  froTu  court, i'  but  a  witness  is  entitled  to  fees  in 
each  suit  when  between  different  parties.is  Where  unnecessary  witnesses 
are  called  in  an  equity  case,  fees  and  costs  for  the  examination  of  only  a 
reasonable  number  will  be  allowed. 1 9 

§  726.     Witness  fees  before  Interstate  Commerce  Commission. 

Witnesses  summoned  before  the  [Interstate  Commerce]  Com- 
mission shall  be  paid  the  same  fees  and  mileage  that  are  paid  wit- 
nesses in  the  courts  of  the  United  States. 

Part  of  §   18,  act  Feb.  4,  1887,  c.  104,  24  Stat.  386,  U.  S.  Corap.  Stat. 
1901,  p.  3168. 

§  727.     Witness  fees  for  depositions  in  District  of  Columbia. 

Every  witness  appearing  and  testifying  under  the  said  provisions 
[for  taking  depostions,  etc.]  relating  to  the  District  of  Columbia 
shall  be  entitled  to  receive  for  each  day's  attendance,  from  the 
party  at  whose  instance  he  is  summoned,  the  fees  now  provided  by 
law  for  each  day  he  shall  give  attendance. 
R.  S.  §  874,  U.  S.  Comp.  Stat.  1901,  p.  666. 

§  728.  — fees  and  mileage  under  letters  rogatory  from  foreigpi 
country. 

Every  witness  who  shall  so  appear  and  testify  [i.  e.,  in  deposi- 
tions to  be  used  in  suits  for  the  recovery  of  money  or  property,  de- 
pending in  court  of  foreign  country  in  which  the  government  of 
such  country  is  interested]^  shall  be  allowed,  and  shall  receive  from 
the  party  at  whose  instance  he  shall  have  been  summoned,  the  same 
fees  and  mileage  as  are  allowed  to  witnesses  in  suits  depending  in 
the  district  courts  of  the  United  States. 

R.  S.  §  4074,  U.  S.  Comp.  Stat.  1901,  p.  2764. 

§  729.     No  officer  of  court  to  have  witness  fees. 

N^o  officer  of  the  United  States  courts,  in  any  State  or  Territory, 

KBurrow  v.  Kansas  City,  etc.  R.  isWooster  v.   Handy,   23  Fed.   49; 

Co.   54  Fed.   284.  Archer  v.  Hartford  Ins.  Co.  31  Fed. 

150'Neil    V.    Kansas    City,   etc.   R.  660:  see  also  L.  E.  Waterman  Oo.  v. 

Co.  31  Fed.  663.                      '  Lockwood,  128  Fed.  174. 

i6ln  re  Carolina,  etc.  Co.  96  Fed.  isKane  v.  Luckman,  131  Fed.  609. 

604.  iSee  R.  S.  §§  4071-4073. 

iTCarter  v.  Sweet.  84  Fed.  16. 

680 


Procedure]  OF  WITNESSES.  §   731 

or  in  the  District  of  Columbia,  shall  be  entitled  to  witness  fees  for 
attending  before  any  court  or  commissioner  where  he  is  officiating. 
R.  S.  §  849,  U.  S.  Comp.  Stat.  1901,  p.  655. 

A  marshal's  office  clerk  is  not  an  officer  of  the  court  and  is  therefore  en- 
titled to  fees  under  the  section,  but  a  deputy  clerk  of  court  is  not  so  en- 
titled. A  deputy  marshal,  while  an  officer  of  the  court,  may  be  allowed 
witness  fees,  when  not  in  actual  attendance. 3 

§  730.     Expenses  allowed  clerks,  etc.,  as  witnesses. 

When  any  clerk  or  other  officer  of  the  United  States  is  sent  away 
from  his  place  of  business  as  a  witness  for  the  government,  his 
necessary  expenses,  stated  in  items  and  sworn  to,  in  going,  retiirn- 
ing,  and  attendance  on  the  court,  shall  be  audited  and  paid ;  but  no 
mileage,  or  other  compensation  in  addition  to  his  salary,  shall  in 
any  case  be  allowed. 

R.  S.  §  850,  U.  S.  Comp.  Stat.  1901,  p.  655. 

This  provision  was  carried  into  the  Revised  Statutes  from  an  act  of 
1853.5  Army  oflBcers  and  soldiers  have  been  held  to  be  within  its  pro- 
vision3,6  as  have  also  clerks  of  departments,^  and  marshals  clerks.s  A 
clerk  appointed  and  paid  by  a  postmaster  is  not. 9  The  expense  account  of 
a  witness  under  this  provision  is  audited  by  or  under  the  direction  of  the 
court  upon  which  he  attends,  and  when  the  United  States  is  successful  it  is 
taxable  as  costs. lo 

§  731.     Compensation  of  seamen  sent  home  as  witnesses. 

There  shall  be  paid  to  each  seaman  or  other  person  who  is  sent 
to  the  United  States  from  any  foreign  port,  station,  sea,  or  ocean, 
by  any  United  States  minister,  charge  d'affaires,  consul,  captain, 
or  commander,  to  give  testimony  in  any  criminal  case  depending 
in  any  court  of  the  United  States,  such  compensation,  exclusive  of 
subsistence  and  transportation,  as  such  court  may  adjudge  to  be 
proper,  not  exceeding  one  dollar  for  each  day  necessarily  emplo3'ed 
in  such  voyage,  and  in  arriving  at  the  place  of  examination  or  trial. 
In  fixing  such  compensation,  the  court  shall  take  into  consideration 
the  condition  of  said  seaman  or  witness,  and  whether  his  voyage 
has  been  broken  up,  to  his  injury,  by  his  being  sent  to  the  United 

3Ex  parte  Burdell,  32  Fed.  G81.  sDural    v.    United    States,    23    Ct. 

BAct  Feb.  26.   1853,  c.   SO.   §  3,   10  <"'•  ^^^^■ 
Stat    167    168  ^I"  re  Waller,  49  Fed.  271. 

,'    ^  ''     r.        ■,-,»  loUnited    States    v.    Sanborn.    135 

616  Op.  Atty.  Gen.  113.  ;-    g    2S.i,  34  L.  ed.  112,  10  Sup.  Ct. 

721  Op.  Atty.  Gen.  263.  Rep.  812. 

681 


§   732  FEES.  [Code  KeJ. 

States.  When  such  seaman  or  person  is  transported  in  an  armed 
vessel  of  the  United  States,  no  charge  for  subsistence  or  transporta- 
tion shall  be  allowed.  When  he  is  transported  in  any  other  ves- 
sel, the  compensation  for  his  transportation  and  subsistence,  nor 
exceeding  in  an}'  case  fifty  cents  a  day,  may  be  fixed  by  the  court, 
and  shall  be  paid  to  the  captain  of  said  vessel  accordingly. 
R.  S.  §  851,  U.  S.  Comp.  Stat.  1901,  p.  655. 
Tliis  provision  was  talcen  from  an  act  of  1853.1 1 

§  732.     Fees  of  grand  and  petit  jurors. 

For  actual  attendance  at  any  court  or  courts,  and  for  the  time 
necessarily  occupied  in  going  to  and  returning  from  the  same, 
three  dollars  a  day  during  such  attendance.  For  the  distance  neces- 
sarily traveled  from  their  residence  in  going  to  and  returning  from 
said  court  by  the  shortest  practicable  route,  five  cents  a  mile : 
R.  S.  §  852,  U.  S.  Comp.  Stat.  1901,  p.  G56. 

This  section  was  enacted  in  1870. is  By  an  act  of  1879,14  the  per  diem 
compensation  of  jurors  was  changed  to  two  dollars,  but  by  a  later  enact- 
ment it  was  again  placed  at  three  dollars  as  in  the  above  section. 1 5  Pro- 
visions governing  the  qualifications,  and  drawing  of  jurors,  etc.,  are  set 
forth  in  a  following  chapter.ie  Where  the  United  States  are  parties  jurors 
fees  are  paid  by  the  marshal.i"  Grand  jurors  are  entitled  to  double 
mileage  fees  when  summoned,  discharged,  and  again  summoned  to  court.is 

§  733.     Per  diem  compensation  of  jurors. 

On  and  after  the  passage  of  this  act  the  per  diem  pay  of  each 
juror,  grand  and  petit,  in  any  court  of  the  United  States,  shall  be 
three  dollars  a  day  instead  of  two  dollars  a  day,  as  now  provided 
by  law. 

Act  June  21,  1902,  c.  1138,  32  Stat.  390,  U.  S.  Comp.  Stat.  1905,  p.  162. 
This  provision  rendered  R.  S.  §  8522  0  again  operative. 

§  734.     Jurors  and  witnesses  mileage  in  Pacific  states. 

Jurors  and  witnesses  in  the  United  States  courts  in  the  States 
of  Wyoming,  Montana,  Washington,  Oregon,  California,  Nevada, 
Idaho  and  Colorado,  and  in  the  Territories  of  New  Mexico,  Arizona 

iiAct  Aug.  20,  1853.  c.  SO.  §  3.  10  isSee  post,  §  733. 

Stat.   168.  lePost,  §§  1701,  et  seq. 

isAct  July  15,  1870.  c.  29S.  §  1,  10  i^Post,  §  738. 

Stat.  363.  isin  re  Grand  Jurors'  Mileage,  120 

14 Act  June  30,  1879,  c.  52,  §  2,  21  Fed.  .307. 

Stat.  43.  2  0See  ante,  §  732. 

682 


Procedure]  PRINTERS'    FEES.  §  73G 

and  Utah,  shall  be  entitled  to  and  receive  fifteen  cents  for  each  mile 
necessarily  traveled  over  any  stage  line  or  by  private  conveyance, 
and  five  cents  for  each  mile  over  any  railway  in  going  to  and  re- 
turning from  said  courts :  Provided,  that  no  constructive  or  double 
mileage  fees  shall  be  allowed  by  reason  of  any  person  being  sum- 
moned both  as  witness  and  juror,  or  as  witness  in  two  or  more  cases 
pending  in  the  same  court  and  triable  at  the  same  term  thereof. 
Act  Aug.  3,  1892,  c.  361,  27  Stat.  347,  U.  S.  Comp.  Stat.  655. 
This  act  supersedes  an  act  of  1880  making  a  similar  provision  as  to 
mileage  of  jurors  and  witnesses  in  Colorado.i 

§  735.     Printer's  fees. 

For  publishing  any  notice  or  order  required  by  law,  or  the  law- 
ful order  of  any  court,  department,  bureau  or  other  person,  in  any 
newspaper,  except  as  mentioned  in  sections  thirty-eight  hundred 
and  twenty-three,  thirty-eight  hundred  and  twenty-four,  and 
thirty-eight  hundred  and  twenty-five,  title,  "Public  Printing,  Ad- 
vertisements and  Public  Documents,"  forty  cents  per  folio  for  the 
fi.rst  insertion,  and  twenty  cents  per  folio  for  each  subsequent  in- 
sertion. The  compensation  herein  provided  shall  include  the  fur- 
nishing of  lawful  evidence,  under  oath,  of  publication,  to  be  made 
and  furnished  by  the  printer  or  publisher  making  such  publication. 
R.  S.  §  853,  U.  S.  Comp.  Stat.  190L  p.  656. 

This  and  the  following  section  are  taken  from  an  act  of  1853.2  The 
provisions  of  the  Revised  Statutes  to  which  it  refers  provide  for  the  selec- 
tion of  newspapers  in  which  shall  be  published  United  States  treaties  and 
laws  and  also  advertisements  whose  publication  is  ordered.  There  are 
largely  superseded  by  later  statutes. 

§  736.  — meaning  of  term  "folio." 

The  term  folio,  in  this  chapter,  shall  mean  one  hundred  words, 
counting  each  figure  as  a  word.  When  there  are  over  fifty  and 
under  one  hundred  words,  they  shall  be  coimted  as  one  folio;  but 
a  less  number  than  fifty  words  shall  not  be  counted  except  when 
the  whole  statute,  notice  or  order  contains  less  than  fifty  words. 
R.  S.  §  854,  U.  S.  Comp.  Stat.  1901,  p.  657. 

lAct  June  16,  ISSO,  c.  247,  21  Stat.  2Act  Feb.  26,  1853,  c.  80,  §  3,  10 
290.  Stat.  168. 

083 


§   737  FEES.  [Code  Fed. 

Under  this  section  each  separate  or  distinct  order  or  separate  proceeding 
may  be  counted  separately  as  a  folio,  although  containing  less  than  fifty 
words.  3 

?  737.     Fees  of  appraisers  on  execution  sale. 

When  such  appraisers  attend  [i.  e.,  the  appraisers  appointed  for 
the  State  courts  in  States  where  an  appraisal  is  prerequisite  to 
execution  sale  attend  on  an  execution  sale  in  the  Federal  court] 
they  shall  be  entitled  to  the  like  fees  as  in  cases  of  appraisement 
under  the  laws  of  the  State. 

Part  of  R.  S.  §  99.3,  U.  S.  Comp.  Stat.  1901,  p.  710. 

§  738.     Jurors  and    witnesses    paid  by  marshal    where    United 
States  are  parties. 

In  cases  where  the  United  States  are  parties,  the  marshal  shall, 
on  the  order  of  the  court,  to  be  entered  on  its  minutes,  pay  to  the 
jurors  and  witnesses  all  fees  to  which  they  appear  by  such  order  to 
be  entitled,  which  sum  shall  be  allowed  him  at  the  treasury  in  his 
accounts. 

R.  S.  §  855,  U.  S.  Comp.  Stat.  1901,  p.  657. 

The  order  of  the  court  under  the  above  section  is  the  voucher  upon 
which  the  marshal  relies.4  Except  as  above  provided  the  courts  have  no 
authority  to  order  the  payment  of  witness'  or  jurors'  fees. 5 

§  739.     Payment  of  fees  of  commissioners  on  Court  of  Claims  de- 
position. 

When  testimony  is  taken  for  the  claimant  [in  a  case  in  the  Court 
of  Claims],  the  fees  of  the  commissioner  before  whom  it  is  taken, 
and  the  cost  of  the  commission  and  notice,  shall  be  paid  by  such 
claimant;  and  when  it  is  taken  at  the  instance  of  the  government, 
such  fees,  together  with  all  postage  incurred  by  the  Assistant  At- 
torney General,  shall  be  paid  out  of  the  contingent  fund  provided 
for  the  Court  of  Claims,  or  other  appropriation  made  by  Congress 
for  that  purpose. 

R.  S.  §  1085,  U.  S.  Comp.  Stat.  1901,  p.  744. 

§  740.     Payment  of  fees  in  suits  on  postmaster's  bonds. 

Hereafter  all  fees  for  United  States  attorneys,  marshals,  clerks 
of  courts  and  special  counsel  necessarily  employed  in  prosecuting 

sErwin  v.   United  States,  37   Fed.        4Van  Duzee,  59  Fed.  440. 
492.  sstate  v.  Felts,  133  Fed.  95. 

684 


Procedure]  PAYMENT  OF  FEES  AND  COSTS.  !   742 

civil  suits  instituted  by  the  auditor  for  the  Postoffice  Department 
through  the  Solicitor  of  the  Treasury  against  the  sureties  on  the 
official  bonds  of  late  postmasters,  as  provided  for  by  section  two 
hundred  and  ninety-two,  Revised  Statutes  of  the  United  States, 
shall  be  paid  from  the  appropriations  for  expenses  of  the  United 
States  courts. 

From  appropriation  act  Feb.  26,  1S96,  c.  33,  29  Stat.  25,  U.  S.  Comp. 
Stat.  1901,  p.  657. 

The  section  of  the  Revised  Statutes  referred  to  above,  provides  that  the 
auditor  for  the  postoffice  department  shall  superintend  the  collection  of 
debts  of  that  department. 

§  741.  —  of  witnesses  for  indigent  defendants  in  criminal  cases. 

Whenever  any  person  indicted  in  a  court  of  the  United  States 
makes  affidavit,  setting  forth  that  there  are  witnesses  whose  evi- 
dence is  material  to  his  defense;  that  he  cannot  safely  go  to  trial 
without  them ;  what  he  expects  to  prove  by  each  of  them ;  that  they 
are  within  the  district  in  which  the  court  is  held,  or  within  one 
hundred  miles  of  the  place  of  trial ;  and  that  he  is  not  possessed  of 
sufficient  means,  and  is  actually  unable  to  pay  the  fees  of  such  wit- 
nesses, the  court  in  term,  or  any  judge  thereof  in  vacation,  may 
order  that  such  witnesses  be  subpoenaed  if  found  within  the  limits 
aforesaid.  In  such  case  the  costs  incurred  by  the  process  and  the 
fees  of  the  witnesses  shall  be  paid  in  the  same  manner  that  similar 
costs  and  fees  are  paid  in  case  of  witnesses  subpoenaed  in  behalf 
of  the  United  States. 

R.  S.  §  878,  U.  S.  Comp.  Stat.  1901,  p.  668. 

By  an  act  of  1892  poor  persons  may  sue  without  being  liable  for  fees  or 
costs.8  The  summoning  of  witnesses  under  this  section  is  in  the  discretion 
of  the  trial  court,  not  reviewable  on  appeal.9  The  section  gives  no  right  to 
summon  witnesses  before  an  indictment  is  found.io  While  it  does  not 
cover  charges  for  the  transcript  on  writ  of  error,  such  charges  have  been 
allowed  when  ordered  by  the  court.n 

§  742.     Payment  of  fees  and  costs  in  extradition  proceedings. 

All  witnesses   fees  and   costs   of  every  nature   in   cases  of  ex- 

8Se«   post,   §    1823.  loUnited  States  v.  Stewart.  44  Fed. 

9Gkildsby  v.  Ignited  States.  160  U.  483. 
S.   73,    40  "L.   ed.    .343,     16     Sup.    Ct.         nUnited    States  v.    Jones.    193    U. 

Rep.     216;       Crumpton     v.     United  S.    530.   48   L.   ed.    777,   24   Sup.   Ct. 

States,  138  U.  S.  364,  34  L.  ed.  958,  Rep.  561. 
11  Sup.  Ct.  Rep.  355. 

685 


§  743  FEES  [Code  Fed. 

tradition,  including  the  fees  of  the  commissioner,  shall  be  certified 
by  the  judge  or  commissioner  before  whom  the  hearing  shall  take 
place  to  the  Secretary  of  State  of  the  United  States,  who  is  hereby 
authorized  to  allow  the  payment  thereof  out  of  the  appropriation 
to  defray  the  expenses  of  the  judiciary ;  and  the  Secretary  of  State 
shall  cause  the  amount  of  said  fees  and  costs  so  allowed  to  be  re- 
imbursed to  the  government  of  the  United  States  by  the  foreign 
government  by  whom  the  proceedings  for  extradition  may  have 
been  instituted,   ' 

§  4  of  act  Aug.  3,  1882,  22  Stat.  21G,  c.  378,  U.  S.  Comp.  Stat.  1901,  p. 
3595. 

§  743.     Payment  of  witness  fees  in  prize  causes. 

Whenever  the  court  shall  allow  fees  to  any  witness  in  a  prize- 
cause,  or  fees  for  taking  evidence  out  of  the  district  in  which  the 
court  sits,  and  there  is  no  money  subject  to  its  order  in  the  cause, 
the  same  shall  be  paid  by  the  marshal,  and  shall  be  repaid  to  bin 
from  any  money  deposited  to  the  order  of  the  court  in  the  cause ;  and 
any  amount  not  so  repaid  the  marshal  shall  be  allowed  as  witness 
fees  paid  by  him  in  cases  in  which  the  United  States  is  a  party. 
R.  S.  §  4651,  U.  S.  Comp.  Stat.  1901.  p.  3139. 

This  section  was  carried  into  the  Revised  Statutes  from  an  act  of  1864.H 

§  744.  —  of  clerks,  commissioners,  etc.,  where  United  States  are 
liable  therefor. 

The  fees  of  district  attorneys,  clerks,  marshals  and  commissioners, 
in  cases  where  the  United  States  are  liable  to  pay  the  same,  shall 
be  paid  on  settling  their  accounts  at  the  Treasury. 
R.  S.  §  856,  U.  S.  Comp.  Stat.  1901,  p.  657. 

The  above  section  is  taken  from  an  act  of  1853.1*  By  a  later  act  of 
1896,  district  attorneys  and  marshals  are  put  on  an  exclusively  salary 
basis,  except  in  New  York  and  the  District  of  Columbia,! 5  but  they  are 
still  to  charge  and  collect  fees,  except  as  against  the  United  States. 1 6 
The  government  is  liable  for  the  payment  of  services  rendered  by  the  clerk 
whether  it  succeeds  in  collecting  costs  from  the  defendant  or  not.i7 

13 Act  June  30,  1864,  c.  174,  §  25,  the   southern    district   of   New  York 

13  Stat.  313.  gets  only  a  salary. 

i4Act   Feb.  26.  1853,  c  80,  §  3,   10  isPost.  745. 

St.it.  168.  1  "United  States  v.  Wolters,  51  Fed. 

15 Ante.    §§    509.    633,    post,    §    745.  896. 
Since   1905   the   district   attorney   in 

686 


Procedure]  TO    BE    COVERED   INTO    TREASURY.  §   746 

§  745.     Fees  of  marshals  and  district  attorneys  to  be  covered, 
into  Treasury. 

On  and  after  the  first  day  of  July,  1896,  all  fees  and  emoluments 
authorized  by  law  to  be  paid  to  United  States  district  attorneys 
and  United  States  marshals  shall  be  charged  as  hertofore,  and 
shall  be  collected,  as  far  as  possible,  and  paid  to  the  clerk  of  the 
court  having  jurisdiction,  and  by  him  covered  into  the  Treasury  of 
the  United  States ;  and  the  said  officers  shall  be  paid  for  their  official 
services,  which,  in  the  case  of  district  attorneys,  shall  include  serv- 
ices in  the  circuit  court  of  appeals  of  their  respective  circuits 
wherever  sitting,  salaries  and  compensations  hereinafter  provided 
and  not  otherwise :  Provided,  that  this  section  shall  not  be  con- 
strued to  require  or  authorize  fees  to  be  charged  against  or  collected 
from  the  United  States,  except  as  provided  by  sections  eleven  and 
thirteen  of  this  act  relating  to  field  deputies  and  their  payments 
§  6  act  of  May  2S,  189G,  c.  252,  29  Stat.  179,  U.  S.  Comp.  Stat.  lOOL  p. 
611. 

By  §  24  of  the  same  act  it  is  provided  that  none  of  the  provisions  of  the 
above  section  "shall  apply  to  the  office  of  the  United  States  district  at- 
torney and  his  assistants  for  the  southern  district  of  New  York,  or  for  the 
District  of  Columbia,"  or  to  the  Territory  of  Alaska.is  By  a  later  act  the 
provision  of  the  above  section  making  the  services  of  district  attorney's  in- 
clude services  in  the  circuit  court  of  appeals,  is  made  applicable  to  the  dis- 
trict attorney  for  the  southern  district  of  New  York.is'i  By  an  act  of 
1905,  the  salary  of  the  district  attorney  in  the  southern  district  of  Xew 
York  is  fixed  at  $10,000.19 

§  746.  No  fees  for  arrest  and  prosecutions  under  revenue  laws 
unless  from  defendants. 
Hereafter  no  part  of  any  money  appropriated  to  pay  any  fees 
to  the  United  States  commissioners,  marshals  or  clerks  shal'  be 
used  for  any  warrant  issued  or  arrest  made,  or  other  fees  in  prosecu- 
tions under  the  internal  revenue  laws,  unless  said  fees  have  biv-n 
taxed  against  and  collected  from  the  defendant,  or  unless  the  pros- 
ecution has  been  commenced  upon  a  sworn  complaint  setting  forth 
the  facts  constituting  the  offense  and  alleging  them  to  be  within  the 
personal  knowledge  of  the  affiant,  or  upon  a  sworn  complaint  by  a 

i8§   24,  act  May  28.   1896.   c.  252.        iPAnte,    §    512.      See    also    §    509. 
29  Stat.  186,  U.  S.  Comp.  Stat.  1901.    [d] 
p.  618. 

is'/z  Appropriation      act      June      6, 
1900,  31   Stat.  304. 

687 


§   747  FEES.  [Code   Fed. 

United  States  district  attorney,  collector  or  deputy  collector  of  in- 
ternal revenue  or  revenue  agent,  setting  forth  the  facts  upon  in- 
formation and  belief,  and  approved  either  before  or  after  such  arrest 
by  a  circuit  or  district  judge  or  the  attorney  of  the  United  States 
in  the  district  where  the  offense  is  alleged  to  have  been  committed 
or  the  indictment  is  found. 

See  appropriation  acts,  Mar.  3,  1893,  c.  208,  27  Stat.  609;  Aug.  18,  1894, 
c.  301,  28  Stat.  416,  U.  S.  Comp.  Stat.  1901,  p.  641. 

§  747.     When  informer  liable  for  fees  incurred  in  prosecution. 

If  any  informer  on  a  penal  statute,  to  whom  the  penalty  or  any 
part  thereof,  if  recovered,  is  directed  to  accrue,  discontinues  his 
suit  or  prosecution,  or  is  nonsuited  therein,  or  if  upon  trial  judg- 
ment is  rendered  in  favor  of  the  defendant,  such  informer  shall 
be  alone  liable  to  the  clerk,  marshal  and  attorney  for  the  fees  of 
such  proscution,  unless  he  is  an  officer  of  the  United  States  Vt'liose 
duty  it  is  to  commence  such  prosecution,  and  the  court  certifies 
that  there  was  reasonable  cause  for  commencing  the  same ;  in  which 
case  the  United  States  shall  be  responsible  for  such  fees. 
R.  S.  §  976,  U.  S.  Comp.  Stat.  1901,  p.  704. 

Prosecutions  in  the  name  of  the  United  States  for  the  use  of  the  in- 
former are  within  the  meaning  of  the  section. i 

§  748.     Penalty  for  accepting  compensation  for  services   other 
than  that  provided. 

Any  officer  whose  compensation  is  fixed  by  sections  six  to  fifteen, 
inclusive,  of  this  act  who  shall  directly  or  indirectly  demand,  re- 
ceive or  accept  any  fee  or  compensation  for  the  performance  of 
any  official  service  other  than  is  herein  provided,  or  shall  wilfully 
fail  or  neglect  to  account  for  or  pay  over  to  the  proper  officer  any 
fee  received  or  collected  by  him  shall,  upon  conviction  thereof,  be 
punished  by  a  fine  of  not  less  than  fifty  dollars  nor  more  than  five 
hundred  dollars,  or  by  imprisonment,  at  the  discretion  of  the  court, 
not  exceeding  five  years,  or  by  both  such  fine  and  imprisonment. 

§  18  act  May  28,  1896,  c.  252,  29  Stat.  183,  U.  S.  Comp.  Stat.  1901,  p. 
617. 

1  United  States  v.  The  Steamboat 
Planter,  Newb.  Adm.  262,  Fed.  Cas. 
No.  16,054. 

088 


Procedure]  ATTACHMENT   FOR   IX  SUPREME  COURT.  §   751 

The  officers  whose  compensations  are  fixed  by  the  sections  referred  to, 
are  district  attorneyss  and  marshalss  assistant  district  attorneys, <  and 
marshals  office  and  field  deputies. 5 

§  749.     Purchase  of  claims  for  fees,  etc.,  prohibited. 

It  shall  hereafter  be  unlawful  for  any  United  States  marshal  or 
deputy  marshal,  or  any  clerk  or  deputy  clerk  of  any  court  of  the 
United  States  or  of  any  Territory  thereof,  or  any  United  States 
attorney  or  assistant  attorney,  or  any  United  States  judge,  or 
United  States  commissioner,  or  other  person  holding  any  office, 
employment,  or  position  of  trust  or  profit  under  the  government 
of  the  United  States  to  purchase,  at  less  than  the  full  face  value 
thereof,  either  directly  or  indirectly,  any  claim  for  fee,  mileage, 
or  expenses  of  any  witness,  juror,  deputy  marshal,  or  of  any  other 
officer  of  court  whatsoever  against  the  United  States  government. 
§  1  act  Feb.  25,  1897,  c.  316,  29  Stat.  595,  U.  S.  Comp.  Stat.  1901,  p. 
1213. 

§  750.     Fees,  how  recovered. 

The  fees  and  compensations  of  the  officers  and  persons  herein- 
before mentioned,  except  those  which  are  directed  to  be  paid  out  of 
the  Treasury,  shall  be  recovered  in  like  manner  as  the  fees  of  the 
officers  of  the  States  respectively  for  like  services  are  recovered. 
R.  S.  §  857,  U.  S.  Comp.  Stat.  1901,  p.  658. 

Fees  other  than  those  which  are  to  be  paid  out  of  the  treasury  are  those 
which  are-  taxed  and  collected  in  suits  and  these  are  to  be  recovered  as 
like  fees  are  recovered  by  similar  state  officers. 7  Thus  a  marshal  may  be 
reimbursed  for  expenditures  in  caring  for  a  vessel  without  waiting  for  final 
decree. 8  But  a  statute  applying  only  to  part  of  a  state  is  not  made  ap- 
plicable by  this  section. 9  The  section  regulates  only  the  mode  of  recovery, 
not  the  amount. 10 

§  751.     Attachment  for  fees  in  Supreme  Court. 

Upon  the  clerk's  producing  satisfactory  evidence,  by  affivadit 
or  the  acknowledgment  of  the  parties  or  their  sureties,  of  having 
served  a  copy  of  the  bill  of  fees  due  by  them,  respectively,  in  this 
court,  on  such  parties  or  their  sureties,  an  attachment  shall  issue 

2Ante,  §  510.  sThe  Alleghenv,  85  Fed.  463. 

sAnte,  §  634.  sAiken  v.  Smith,  57  Fed.  423,  6  C. 

■»Ante,  §  515.  C.  A.  414. 

sAnte,  §§  620.  621.  lOThe  Mary  H.  Broekway,  49  Fed. 
^United   States   v.   Cigars,   2    Fed.    161. 
496. 

Fed.  Proc— 44.  689 


i  752  FEES.  [Code  Fed. 

against  such  parties  or  sureties,  respectively,  to  compel  payment  of 
the  said  fees. 

Section  8  of  Supreme  Court  rule  10,  as  amended  Mar.  28,  1887. 

§  752.     Clerk's  fees  in  naturalization  proceedings. 

The  clerk  of  each  and  every  court  exercising  jurisdiction  in 
naturalization  cases  shall  charge,  collect,  and  account  for  the  follow- 
ing fees  in  each  proceeding:  For  receiving  and  filing  a  declaration 
of  intention  and  issuing  a  duplicate  theerof,  one  dollar.  For 
making,  filing,  and  docketing  the  petition  of  an  alien  for  admis- 
sion as  a  citizen  of  the  United  States  and  for  the  final  hearing 
thereon,  two  dollars;  and  for  entering  the  final  order  and  the 
issuance  of  the  certificate  of  citizenship  thereunder,  if  granted,  two 
dollars. 

First  part  of  §  13  act  June  29,  1906,  c.  3592,  34  Stat.  600. 

The  provisions  of  the  naturalization  act  respecting  procedure  are  given 
elsewhere.  1 

§  753.  —  duty  to  account  for  one  half. 

The  clerk  of  any  court  collecting  such  fees  is  hereby  authorized 
to  retain  one-half  of  the  fees  collected  by  him  in  such  naturalization 
proceeding;  the  remaining  one-half  of  the  naturalization  fees  in 
each  case  collected  by  such  clerks,  respectively,  shall  be  accounted 
for  in  their  quarterly  accounts,  which  they  are  hereby  required  to 
render  the  Bureau  of  Immigration  and  Naturalization,  and  paid 
over  to  such  Bureau  within  thirty  days  from  the  close  of  each  quar- 
ter in  each  and  every  fiscal  year,  and  the  moneys  so  received  shall 
be  paid  over  to  the  disbursing  clerk  of  the  Department  of  Commerce 
and  Labor,  who  shall  thereupon  deposit  them  in  the  Treasury  of 
the  United  States,  rendering  an  account  therefor  quarterly  to  the 
auditor  for  the  State  and  other  departments,  and  the  said  disburs- 
ing clerk  shall  be  held  responsible  under  his  bond  for  said  fees  so 
received. 

Second  part  of  §  13,  act  June  29,  1906,  c.  3592,  34  Stat.  600. 

§  754,  — deposit  for  witness  fees — retention  by  clerk — addition- 
al assistance. 
In  addition  to  the  fees  herein  required,  the  petitioner  shall,  upon 
the  filing  of  his  petition  to  become  a  citizen  of  the  United  States, 

iPost,  §  2380,  et  seq. 


Procedure]    HOW  SUPRKME  COURT  CLERKS'   FEES    COMPUTED.  §  755 

deposit  with  and  pay  to  the  clerk  of  the  court  a  sum  of  money  suffi- 
cient to  cover  the  expenses  of  subpoenaing  and  paying  the  legal 
fees  of  any  witnesses  for  whom  he  may  request  a  subpoena,  and 
upon  the  final  discharge  of  such  witnesses  they  shall  receive,  if  they 
demand  the  same  from  the  clerk,  the  customary  and  usual  witness 
fees  from  the  moneys  which  the  petitioner  shall  have  paid  to  such 
clerk  for  such  purpose,  and  the  residue,  if  any,  shall  be  returned 
by  the  clerk  to  the  petitioner :  Provided,  That  the  clerks  of  courts 
exercising  jurisdiction  in  naturalization  proceedings  shall  be  per- 
mitted to  retain  one-half  of  the  fees  in  any  fiscal  year  up  to  the 
sum  of  three  thousand  dollars,  and  that  all  fees  received  by  such 
clerks  in  naturalization  proceedings  in  excess  of  such  amount  shall 
be  accounted  for  and  paid  over  to  said  bureau  as  in  case  of  other 
fees  to  which  the  United  States  may  be  entitled  under  the  pro- 
visions of  this  act.  The  clerks  of  the  various  courts  exercising 
jurisdiction  in  naturalization  proceedings  shall  pay  all  additional 
clerical  force  that  may  be  required  in  performing  the  duties  im- 
posed by  this  act  upon  the  clerks  of  courts  from  fees  received  by 
such  clerks  in  naturalization  proceedings.  And  in  case  the  clerk 
of  any  court  collects  fees  in  excess  of  the  sum  of  six  thousand  dol- 
lars in  any  one  year,  the  Secretary  of  Commerce  and  Labor  may 
allow  to  such  clerk  from  the  money  which  the  United  States  shall 
receive  additional  compensation  for  the  employment  of  additional 
clerical  assistance,  but  for  no  other  purpose,  if  in  the  opinion  of 
the  said  Secretary  the  business  of  such  clerk  warrants  such  allow- 
ance. 

Part  of  §  13  act  June  29,  1906,  c.  3592.  34  Stat.  GOO,  601. 

§  755.     Supreme  Court  clerks  fees  computed  on  folios  of  record 
as  filed. 

The  fees  of  the  clerk  under  Rule  24,  section  7,  shall  be  computed, 
as  at  present,  on  the  folios  in  the  record  as  filed,  and  shall  be  in 
full  for  the  performance  of  his  duties  in  the  execution  hereof. 

Last  clause  of  Supreme  Court  rule  10. 

The  table  of  fees  above  referred  to  is  given  in  a  preceding  code  section.3 

3 See  ante,  §  708. 


601 


PART  II. 
FEDERAL  PROCEDURE. 


CHAPTER  21. 

GENERAL  AND  IVnSCELLANEOUS  PROVISIONS. 

§  799.  Source  and  scope  of  power  to  prescribe  Federal  procedure. 

§  800.  The  fundamental  distinction  between  law  and  equity. 

§  801.  General  nature  and  scope  of  Federal  Courts'  power  to  make  rules. 

§  802.  — Supreme  Courts'  power  to  make  equity  and  admiralty  rules  for 
lower  courts. 

§  803.  — to   make   bankruptcy   rules.      ^ 

§  804.  Power  of  circuit  court  of  appeals  to  make  rules. 

§  805.  Power  of  circuit  and  district  courts  to  make  rules. 

§  806.  Circuit  courts'  power  to  make  rules  in  equity. 

§  807.  Power  to  impose  oaths  and  punish  contempts. 

§  808.  Contempt  power  of  Court  of  Claims. 

§  809.  Bankruptcy   courts'  power  to  punish   for  contempt. 

§  810.  Contempts  before  bankruptcy  referees. 

§  811.  Contempt   proceedings   against   defaulting  garnishee. 

§  81"2.  Contempt  of  order  to  appear  before  Commerce  Commission. 

§  813.  Formal   defects   of  procedure  disregarded — amendments   permitted. 

§  814.  Effect  of  death  of  party  before  final  judgment — revivor. 

§  815.  Death  of  one  of  several  parties. 

§  816.  No   abatement   by  officer's   death,   expiration   of   term,   etc. 

§  817.  Non-joinder  of,  or  failure  to  serve  parties  as  ground  of  abatement. 

§  818.  Dismissal  or  remand  for  want  of  jurisdiction  or  collusion  therein. 

§  819.  Either  party  may  notice  cause  for  trial. 

§  820.  Priority  in  hearing  of   State   cases. 

§  821.  Deposit  of  moneys  paid  into  court. 

§  822.  Withdrawal   of   deposit — transfer   to   credit   of   United   States. 

§  823.  Consolidation   of  causes. 

§  824.  Actions  for  mining  claims  governed  by  law  of  possession. 

§  825.  Procedure  upon  arbitration  award  between  carrier  and  its  em- 
ployees— filing    award   and    exceptions. 

§  820.  — judgment  and  appeal. 

§  799.     Source  and  scope  of  power  to  prescribe  Federal  procedure. 

Power  to  prescribe  the  procedure  of  Federal  courts  follows  from 
the  power  of  Congress  to  establish  such  courts. "^^^  It  permits  the 
national  government  to  provide  for  the  practice,  forms  and  modes 
of  court  proceedings  from  the  institution  of  suit  down  to  the  en- 
forcement and  satisfaction  of  the  judgments  rendered. ^^^     But  this 

69i> 


i 


§   7i)9   [a]  GENERAL  AND  MISCELLANEOl/S  PROVISIONS.        [Code  Fed. 

power  to  prescribe  procedure  does  not  authorize  any  declaration 
of  the  substantive  rules  of  law  which  shall  be  administered  in  the 
decision  of  causes  in  Federal  courts. "^^^ 
Author's  section. 

[aj     Origin  of  power  to  provide  Federal  procedure. 

The  clause  of  the  Constitution  enabling  Congress  to  pass  all  laws  neces- 
sary and  proper  to  carry  out  its  granted  powers,i  very  clearly  authorizes 
legislation  which  will  enable  the  courts  it  is  authorized  to  create,  to  exer- 
cise effectively  the  jurisdiction  which  the  Federal  Constitution  confers.2 
As  already  shown  this  power  is  exclusive  in  the  national  government  and 
not  subject  to  state  regulation  or  restraint.3 

[b]     Scope  of  power. 

Since  jurisdiction  does  not  terminate  with  judgment,  but  continues  until 
its  enforcemenf  or  satisfaction  thereafter,5  it  follows  that  the  power  to 
prescribe  procedure,  includes  power  to  make  laws  for  carrying  Federal 
judgments  into  execution. 6  Hence  the  statute  authorizing  Federal  courts  to 
issue  writs  agreeable  to  the  principles  and  usages  of  law,  for  the  effective 
exercise  of  jurisdiction  includes  writs  subsequent  to  judgment,  such  as 
expcutionT  and  mandamus. s  It  would  seem  equally  clear  that  the  power  to 
enforce  judgment  and  direct  execution  includes  the  power  to  designate  the 
property  subject  to  execution; 9  and  hence  that  Congress  in  the  exercise  of 
this  power,  may  extend,  or  qualify,  or  abrogate  the  state  scheme  of  exemp- 
tions from  execution  in  so  far  as  Federal  judgments  are  concerned. lo 

Plainly  the  power  to  prescribe  procedure  is  a  broad  one  and  of  great  im- 
portance. The  vindication  of  rights  is  always  deeply  affected  and  often  con- 
trolled by  the  laws  of  procedure  established  for  their  determination.  Under 
this  power  Congress  might  legislate  independently  of  the  States  and  at  utter 
variance  with  their  practice,  as  to  the  admissibility  of  evidence  or  the  com- 
petency of  parties  and  others  as  witnesses;  as  to  the  form  and  effect  of  judg- 
ments and  their  lien ;  as  to  the  form  and  effect  of  execution,  the  property  on 
which  it  may  be  levied,  the  method  of  sale,  or  imprisonment  of  the  debtor. 
These  considerations  serve  to  emphasize  the  wisdom  of  the  legislation  that 

iCons.  Art.  1.  sec.  8,   CI.  18.  sBank    of    United    States    v.    Hjil- 

2Nayman  v.  Southard,  10    Wheat,  stead.  10  Wheat.  61.  6  L.  ed.  207. 

22,  6   L.   ed.  258;    Bank  of  U.   S.  v.        "See    Fink    v.    O'Neil,    lOG   U.    S. 

Halstead,  10  Wheat.  54.  6  L.  ed.  265.  279,  27  L.   ed.   196.   1    Sup.   Ct.   Rep. 

3 See  ante,  §  5.  ^^^-     Y"^^^   the   legislation   of   Con- 

^ci  xoo       i.rjjT  gress.   however,   the   State  scheme  of 

5See  ante   §3  note[dd].  exemptions  applies  in  Federal  court. 

rr         o;^f  ^1  9*'"'^^  Jo.     .?.'"''■'''"•  ^^  See  also  Nichols  v.  Levy,  5  Wall.  433, 

How.  376,  16  L.  ed.  735;  Wayman  v.  jg  ^    ed.  596;  Spindle  v.  Shreve,  111 

Southard,  10  Wheat,  22,  6  L.  ed.  258;  jj    g    540    9g  ^    eo    51''    4  Sup    Ct 

Bank  of  U.  S.  v.  Halstead,  10  Wheat.  Rep. '522?  First  Nat.  Bank  v.  Glass^ 

53,  6  L.  ed.  265.  79  ppj.  708.  25  C.  C.  A.  151 ;  Thomp- 

''Ibid.  son  V.  McConnell.  107  Fed.  36,  46  C. 

sKnox  Co.  V.  Aspinwall,  24  How.  C.  A.  124;    Manufacturers'  etc.  Bank 

384,  16  L.  ed.  739.  v.  Bayless,  16  Fed.  Case  664. 

696 


i 


Procedure]         DISTINCTIOX    BETWEEN    LAW    AND    EQUITY.  §  800 

has  been  enacted.  In  common  law  causes  the  procedure  in  Federal  courts 
is  required  to  conform  to  the  practice  prevailing  in  the  State  where  the 
court  is  sitting.ii  Rules  as  to  evidence  and  competency  of  witnesses  con- 
form, with  slight  modifications,  to  the  State  laws.12  The  duration  of  the 
judgment,  the  property  subject  thereto,  and  the  execution  issued  for  the 
enforcement  are  all  assimilated  to  the  State  laws  in  such  behalf.  It  is  only 
the  equity  and  admiralty  practice  that  are  distinctively  Federal;  and  the 
admiralty  jurisdiction  being  exclusive  provokes  no  conflict  or  embarrass- 
ment. 

[c]  Substantive  law  in  Federal  courts  not  derivable  from  power  as  to 
procedure. 
The  law  administered  in  the  decision  of  causes  in  Federal  courts  and 
by  which  rights  are  measured  and  adjudged,  is  to  be  distinguished  from  the 
rules  and  modes  of  procedure.i*  It  is  plain  that  the  substantive  law  to 
be  administered  cannot  be  provided  by  Congress  vmder  the  power  to  pre- 
scribe modes  of  procedure.  It  cannot  be  contended,  for  instance,  that  the 
grant  to  Federal  courts  of  jurisdiction  over  suits  between  citizens  of  dif- 
ferent States,  enables  Congress  to  provide  the  rules  of  law  which  shall 
govern  and  determine  such  suits.  To  so  hold  would  be  to  declare  that 
Congress  ca;i  trespass  beyond  the  legislative  powers  granted  to  it,  abrogate 
established  rules  of  property  in  the  States,  and  remove  the  obligation  of 
its  citizens  to  submit  to  the  operation  of  its  laws  passed  within  the  ad- 
mitted scope  of  State  powers.  The  scheme  of  distribution  of  legislative 
powers  between  the  Federal  and  the  State  governments  forbids  any  such 
extension  of  the  powers  of  the  Federal  government. 1^  The  judicial  power 
of  Federal  courts  is  much  broader  than  the  legislative  power  of  the  Fed- 
eral Congress;  16  and  in  consequence  the  courts  are  frequently  called  upon 
to  administer  the  State  laws.17 

§  800.     The  fundamental  distinction  between  law  and  equity. 

In  Federal  practice  the  ancient  distinction  between  common  law 
and  equity  is  fundamental  and  is  consistently  maintained.  ISJ'o 
practitioner  can  properly  conduct  a  cause  in  the  Federal  courts 
without  a  clear  understanding  of  this  fact,  for  the  distinction  con- 
fronts him  at  the  threshold  of  his  proceedings  and  determines  its 
entire  course.  It  makes  no  difference  that  the  State  where  a  Fed- 
eral court  is  sitting  has  modified  or  abolished  the  ancient  distinc- 
tion between  law  and  equity.  The  modes  of  proceeding  in  Federal 
courts  are  independent  of  State  control,  and  it  is  law  and  equity 

11  See  post.  §  000.  leSee  Beauregard  v.  New  Orleans, 

i2See  post,  §§  1776.  1735.  18  How.  497.  15  L.  ed.  469:   Brine  v. 

i4See  McClaskey  v.  Barr.  48  Fed.  Hartford    Ins.   Co.   flfi   U.   S.    634.   24 

130.  L.    ed..     861  :     Independent     Dist.     v. 

isSuvdam  v.  Williamson,  24  How.  Beard,   83   Fed.   16;    ante,  §   1. 
433,  16' L.  ed.  745.  i"Ante.  §  10. 

697 


§   800   [a]  GENERAL  AND  MISCELLANEOUS  PROVISIONS.       [Code  Fed. 

that  the  Federal  courts  administer  as  the  two  were  distinguished 
at  the  time  of  the  Revolution.^  If,  by  that  test,  a  proceeding  is 
properly  at  law.  Congress  has,  it  is  true,  provided  for  its  conduct  in 
the  Federal  court  in  much  the  same  manner  as  in  the  courts  of  the 
State  where  it  is  brought. ^^^  But  if,  by  that  test,  it  is  properly  equi- 
table, then  the  State  practice  is  to  be  ignored  and  the  cause  pro- 
ceeds according  to  rules  of  equity  procedure  that  are  uniform  in 
all  Federal  courts  throughout  the  land.'^'^^  It  is  important  to  bear 
in  mind  that  the  distinction  between  law  and  equity  is  concerned 
with  the  mode  of  enforcing  rights  and  not  with  their  existence.  The 
Federal  government  through  legislation  of  Congress  and  rules  adopt- 
ed by  the  courts  has  full  power  to  regulate  the  procedure  or  mode 
of  enforcing  rights  in  its  courts.-  But  neither  Congress  nor  the 
courts,  under  the  guise  of  regulating  procedure,  can  enlarge  the  leg- 
islative powers  conferred  by  the  Constitution  or  trench  upon  legis- 
lative powers  reserved  by  the  States.  As  to  matters  within  the 
States'  law  making  powers  equitable  rights  are  measured  by  the  local 
laws  in  Federal  courts  as  much  as  in  State  courts;^  and  where  a 
State,  by  enactments  within  its  law  making  power,  enlarges  or 
changes  equitable  rights,  the  Federal  courts  while  they  may  choose 
their  own  mode  of  doing  so,  are  as  much  bound  to  administer  such 
enlargement  or  change  as  are  the  tribunals  of  the  State.'^''^ 
Author's  section. 

[aj     Procedure  in  actions  at  law. 

Subsequent  chapters 5  contain  various  provisions  governing  procedure  in 
common  law  causes,  but  certain  general  principles  may  be  noted  here.  The 
distinction  between  law  and  equity  not  only  requires  the  bringing  of  an 
action  at  law  on  the  law  side  of  the  court,  but  it  forbids  the  pleading  of 
equitable  defenses  therein. 6  It  forbids  the  joinder  of  legal  and  equitable 
causes  of  action  in  one  complaint  though  permissible  by  the  State 
practice; 7  and  an  agreed  statement  of  fact  waiving  questions  of  pleading 
cannot  cure  defects  of  this  character.  8     Similarly  it  forbids  the  pleading  of 

iSee  ante.  §  5[b]  ;  post,  §  935.  513.  7  Sup.  Ct.  Rep.  323;  Johnson  v. 

2See   §   799.  Christian,    128   U.    S.    374,   32   L.   ed. 

3See  ante,  §  10[a].  413.   9    Sup.    Ct.   Rep.    87;    Mulqueen 

sPost,  §  900,  et  seq.  v.    Schlichter  Co.    108   Fed.   931  ;    see 

sRobinson    v.    Campbell,    3   Wheat,  also    Schurmeier   v.   Conn,   etc.;    Ins. 

212,  4  L.  ed.  373;   Bagnell  v.  Erode-  Co.  137  Fed.  42,  69  C.  C.  A.  22. 

rick,  13  Pet.  436.  10  L.  ed.  235;  Foster  ^Phelps    v.    Elliott,    26    Fed.    882: 

V.  Mora,  98  U.  S.  425,  25  L.  ed.  191;  La  Mothe  v.   National  Co.;    Potts  v. 

Hurt    V.    Hollingsworth,     100    U.   S.  A<>cident  Ins.  Co.  35  Fed.  ri^u. 

100,  25  L.  ed.  SeO;  Northern  P.  R.  R.  sWillard  v.   Wood,   135  U.  S.   310, 

V.   Paine,   119   U.    S.   561,   30   L.   ed.  34  L.  ed.  213,  10  Sup.  Ct.  Rep.  831. 

698 


Pocednre]         DISTINCTION    BETWEEN    LAW    AND     EQUITY  §   800   [b] 

equitable  defenses  in  an  action  at  law. a  If  by  Federal  standards  an  action 
should  be  in  equitj',  a  State  statute  permitting  suit  at  law  will  not  be  fol- 
lowed.io  In  most  of  the  States  the  blending  of  law  and  equity  procedure  has 
restdted  in  forms  and  modes  of  pleading  embodying  both  systems  almost  in- 
distinguishably.  Thus  the  modern  counterclaim  comprises  both  the  recoup- 
ment permissible  anciently  at  law  and  the  cross  bill  of  courts  of  equity. 
Hence,  it  is  said,  the  counterclaim  of  the  State  practice  is  only  permissible 
in  the  Federal  court  if  under  the  facts  it  really  represents  the  recoupment 
of  the  ancient  common  law.n  When  a  State  permits  ejectment  to  be  main- 
tained upon  a  merely  equitable  title.is  or  permits  an  equitable  title  to  be 
set  up  as  a  defense  in  ejectment,  this  practice  cannot  prevail  in  the  P'ederal 
court,  and  one  having  an  equitable  title  must  there  go  into  equity  for  due 
recognition  or  enforcement  thereof. 1 3 

[bj     Federal  equity  procedure. 

The  equity  procedure  of  the  Federal  Courts  is  very  largely  governed  by 
the  equity  rules  promulgated  by  the  Supreme  Court,!'*  and  these  are  em- 
bodied in  subsequent  chapters.is  The  equity  practice  is  independent  of,  and 
unaffected  by  State  laws  as  to  procedure  in  the  State  courts. is  Hence  a 
married  woman  must  in  equity  sue  by  prochein  ami  in  the  Federal  court 
even  though  the  state  law  permits  suit  in  her  OAvn  name. 1 7  Proceeding  by 
an  agreed  case  is  not  permissible  in  the  Federal  court  on  its  equity  side 
though  sanctioned  by  State  law. is  Conversely  one  having  merely  an  equit- 
able title  must  proceed  in  equity  and  cannot  maintain  the  legal  action  of 
ejectment  even  though  the  State  practice  so  permits.is  So  where  the  State 
law  forbids  resort  to  an  equitable  remedy  such  as  injunction,  this  will  not 
deprive  a  suitor  of  that  remedy  in  the  Federal  court  if  by  Federal  equity 

sGeorge  v.  Tait,  102  U.  S.  564,  570,  423,  16  L.  ed.  741 ;  Hooper  v.  Seheim- 

26  L.    ed.   232:    Scott   v.   Armstrong,  er,  23  How.  235,  16  L.  ed.  452. 
146  U.  S.  512.  36  L.  ed.  1059,  13  Sup.        i2Greer  v.  Mezes,  24  How.  268,  16 

Ct.    Rep.    148;    Hill    v.    Northern    P.  L.  ed.   661;    Doe  v.  Roe,  31   Fed.  97: 

Rv.   113   Fed.  917,  51    C.   C.   A.   544;  Schoolfield    v.    Riiodes,    82    Fed.    153, 

Kosztelnik    v.    Bethlehem    I.    Co.    91  27   C.   C.  A.   95;   Daniel  v.  Felt,   100 

Fed.  606;   Wilcox,  etc.  Co.  v.  Phenix  Fed.  727. 

Ins.    Co.   61    Fed.    199,    Vandervelden        i3Norttiern  P.  R.  R.  v.  Paine,  119 

V.  Chicago,  etc.  Ry.  61  Fed.  57.     See  U.  S.  502,  30  L.  ed.  513,  7   Sup.  Ct. 

however,      Cheatham      v.      Edgefield  Rep.  323. 
Mfg.     Co.     131     Fed.    121,   and   cases        i4Post,  §  935,  et  seq. 
cited,     where     facts     setting    up   an        isPost,  §§  935.  et  seq. 
equitable  estoppel  were  alloaved  in  a        i6Payne  v.  Hoolc.   7   Wall.  430,   19 

legal  action  of  eieetment.  L.  ed.  201  ;   Scott  v.  Neelv,  140  U.  S. 

loSheffield  F.  Co.  v.  Witherow,  149  106.  .35  L.  ed.  35S.   11   Sup.  Ct.  Rep. 

U.  S.  579,  37  L.  ed.  853,  13  Sup.  Ct.  712:   see  ante.   S  5[bl. 
Rep.  9.36.  17 Wills  v.  Pauly,  51  Fed.  257. 

ii.Iewett   Car   Co.    v.   Kirkpatrick,        isXickerson   v.   Atchison,   etc.   Rv. 

etc.  Co.  107  Fed.  622;  but  see  Snvder  30  Fed.  85. 

v.    Pharo.   25   Fed.   .398:     Church     v.        laQibson    v.    Chouteau.    13    Wall, 

Spiegelburg,  31  Fed.  601,  24  Blatchf.  102,  20  L.  ed.  534;  Langdon  v.  Sher- 

540;  Herklotz  v.  Chase.  32  Fed.  433;  wood.  124  U.   S.   74.  31   L.  ed.  344,  8 

and   see  post,    §   903     [d]  :     Fenn    v.  Sup.  Ct.  Rep.  429:  Redfield  v.  Parks, 

Holme,  21   How.  488.  16  L.  ed.  201;  132  U.  S.  239,  33  L.  ed.  327,  10  Sup. 

Sheirboum    v.    DeCordova,   24    How.  Ct.  Rep.  83. 

699 


§  801  GENERAL  AND  MISCELLANEOUS  PROVISIONS.       [Code   Fed. 

staiitlards  lie  is  entitled  thereto. 20  All  these  are  mere  questions  of  the 
mode  of  procedure.  Where  the  State  law  affects  substantive  rights  and  not 
mere  modes  of  procedure,  other  considerations  control.  It  has  been  re- 
peatedly decided  that  an  enlargement  of  equitable  rights  created  by  a 
State  will  be  as  fully  respected  and  administered  in  the  Federal  as  in  the 
State  courts. 2  Thus  the  modern  action  to  quiet  title  is  essentially  equit- 
able and  akin  to  the  equitable  bill,  maintainable  by  one  in  possession,  to 
remove  a  cloud.  If  the  State  permit  its  statutory  action  to  quiet  title  to  be 
maintained  by  one  out  of  possession,  this  enlargement  of  a  right  essential- 
ly equitable,  will  prevail  in  the  Federal  court  in  that  State,  which  will  ac- 
cordingly entertain  a  bill  in  the  absence  of  adequate  remedy  at  law,  by 
one  out  of  possession. 3  The  essential  nature  of  new  statutory  rights  de- 
termines the  jurisdiction  as  between  law  and  equity. ^  But  if  by  Federal 
equity  standards,  there  is  an  adequate  remedy  at  law  in  the  Federal  court, 
the  fact  that  a  State  gives  a  new  equitable  remedy  will  not  justify  the 
Federal  court  in  enforcing  it. 5 

§  801.     General  nature  and  scope  of  Federal  Courts'  power  to 
make  rules. 

Courts  undoubtedly  possess  a  certain  inherent  power  to  mals(' 
rules  not  inconsistent  with  law,  for  the  purpose  of  promoting  the  or- 
derl)'  administration  of  justice.  The  legislature,  also,  may  authorize 
courts  to  make  rules  of  practice  without  violating  the  constitutional 
principle  which  forbids  them  to  delegate  legislative  powers  to  the 
courts ;  and  in  the  case  of  the  Federal  courts  a  very  large  power  in 
the  making  of  rules  to  govern  practice  therein  has  been  conferred  by 
Congress.^  A  legislative  enumeration  of  the  matters  which  courts 
are  authorized  to  provide  for  by  rule  would  seem  to  limit  the  power 
to  make  rules  to  such  matters  and  exclude  other s.^^^'i^^^ 
Author's  section. 

[a]     Power  of  Federal  Courts  to  make  rules. 

The  power  of  courts  to  make  rules  to  promote  the  orderly  administration 
of  justice  is  inherent. 9  There  is  no  existing  statute  conferring  authority 
upon  the  Supreme  Court  to  make  rules  to  govern  practice  therein,  although 
there  were  provisions  in  early  statutes  conferring  general  authority  on  all 

20Tavlor   v.    Louisville,   etc.   R.   R.        sWhitehead    v.    Shattuck,    138    U. 

88  Fed.'  357,  31  C.  C.  A.  537.  S.  152,  34  L.  ed.  873,  11  Sup.  Ct.  Rep. 

2Antp.  §  10  [aa].  276;    Scott   v.   Neelv,   140  U.    S.   117, 

sHolland  v.  Challen,  110  U.  S.  15.  35  L.  ed.  362.  11   Sup.  Ct.  Rep.  716; 

28   L.   ed.   52,   3    Sup.    Ct.  Rep.    495;  Cates  v.  Allen.   149  U.   S.  459.  37  L. 

Wehrman  v.  Conklin,  155  U.   S.  324,  ed.   808,   13  Sup.  Ct.  Rep.   885.     See 

39  L.  ed.   172.  15  Sup.   Ct.  Rep.   132.  also,  post,   §   935,   et  seq. 

4Van   Norden  v.  Morton,  99  U.   S.         sSee   post,   §   802,   803,   804,  805. 
380.  25  L.  ed.  453;  Cummings  v.  Na-        sDuke  v.  Trippe.  6  Ga.  323;  Crump 

tional  Bank,  101  U.  S.  157,  25  L.  ed.  v.  People,  2  Colo.  319;   see  Washing 

905.  ton.    etc.    Packet    Co.   v.    Sickles,    )9 

Wall.  615,  22  L.  ed.  203. 
700 


Procedure] 


POWER  TO  MAKE  RULES. 


§  801   [b] 


the  Federal  courts  to  make  rules. lo  These  general  provisions  were  not 
carried  forward  into  the  Revised  Statutes.!!  Many  matters  pertaining  to 
appellate  practice  in  that  tribunal  however,  have  been  regulated  by  rules  of 
court  from  the  beginning  and  their  validity  is  not  open  to  question.! 2  The 
procedure  in  original  suits  in  the  Supreme  Court  where  States  are  parties, 
has  been  left  by  Congress  to  the  control  of  the  court,  and  is  regulated  by 
court  rules,  1  3  at  first  adopted  with  hesitation  and  declared  to  be  subject 
to  the  "interposition,  alteration  and  control"  of  Congress. i4  While  rules  do 
not  have  to  be  reduced  to  writing  to  be  effective,!  5  yet  as  the  Supreme 
Court  rules  are  written,  and  accessible  to  all  suitors,! 6  strict  compliance 
therewith  is  insisted  upon.!"*  The  inferior  Federal  courts  have  frequently 
adopted  State  practice  without  formal  rule.!?  Valid  rules  have  the  force 
of  law  binding  both  upon  the  court  and  the  parties  and  may  not  be  dis- 
regarded by  a  trial  court.! 9  Long  practical  construction  of  a  rule  is  per- 
suasive of  the  correctness  of  that  construction. 20  A  court  may  in  its  dis- 
cretion dispense  with  the  requirements  of  a  rule!  or  relieve  against  in- 
justice in  its  operation.  2  The  power  of  Congress  to  direct  the  Federal 
courts  to  frame  i-ules  governing  their  practice,  was  sustained  in  several 
early  cases.3  It  also  has  power  to  alter  rules  adopted  by  or  for  any 
Federal  courts,  at  any  time.'^  And  a  statute  may  abrogate  a  rule  without 
an  order  of  coourt  to  that  effect. 5 

[b]     Limitations  upon  power  to  make  rules. 

It  is  plain  that  courts  have  no  power  to  make  rules  inconsistent  with 


!0See  act  Sept.  24.  1789.  §  17,  1 
Stat.  S3;  act  March  2,  1793,  §  7,  1 
Stat.  335. 

!iSteam  Stone  Cutters  Co.  v. 
Jones,  13  Fed.  579,  21  Blatchf.  138; 
see  Hudson  v.  Parker,  156  U.  S.  281, 
39  L.  ed.  425,  15  Sup.  a.  Rep.  452. 

i2ln  re  Chateaugay,  etc.  Co.  128  U. 
S.  544,  32  L.  ed.  508.  9  Sup.  Ct.  Rep. 
150:  Fishburn  v.  Railwav  Co.  137  U. 
C.  60,  34  L.  ed.  585,  11  Sup.  Ct.  Rep. 
8;  Hudson  v.  Parker,  156  U.  S.  282, 
39  L.  ed.  425,   15   Sup.  Ct.  Rep.  452. 

isFlorida  v.  Georgia.  17  How-.  478, 
15  L.  ed.  189;  California  v.  Southern 
Pac.  Co.  157  U.  S.  248,  39  L.  ed. 
690,  15  Sup.  Ct.  Rep.  591. 

!4Gravson  v.  Virginia,  3  Dall. 
320,  1  L.  ed.  619. 

!5Fullerton  v.  Bank  of  U.  S.  1 
Pet.  613.  7  L.  ed.  280;  Duncan  v. 
United  States,  7  Pet.  451,  8  L.  ed. 
739. 

leRichardson  v.  Green,  130  U.  S. 
112,  32  L.  ed.  872,  9  Sup.  Ct.  Rep. 
443. 

iTSchool  Dist.  V.  Insurance  Co.  101 
U.  S.  472,  25  L.  ed.  868. 


IS  See    post,   §  805.  fc] 

i9Rio  Grande  Irrigation  Co.  v. 
Gildersleeve.  174  U.  S.  608.  43  L.  ed. 
1103,  19  Sup.  Ct.  Rep.  761 ;  Sevmour 
V.  Phillips,  7  Biss.  460,  Fed.  Cas.  No. 
12,689. 

2  0Osbom  V.  United  States,  131  U. 
S.  CXXXVII.,  23  L.  ed.  871. 

!United  States  v.  Breitling,  20 
How.  252,  15  L.  ed.  900;  Russell  v. 
McLellan,  3  Wood  &  M.  157,  Fed.  Cas. 
No.  12,158;  Wallace  v.  Clark,  3  Wood. 
&  M.  359,  Fed.  Cas.  No.  17,098; 
Southern  Pac.  Co.  v.  .lohnson,  69  Fed. 
5.59,  16  C.  C.  A.  317. 

sPoultney  v.  La  Fayette.  12  Pet. 
472.  9  L.  ed.  1161. 

sWayman  v.  Southard,  10  Wheat. 
48,  6  L.  ed.  264;  Bank  of  U.  S.  v. 
Halstead.  10  Wheat.  64.  6  L.  ed.  268; 
Beers  v.  Haughton,  9  Pet.  359,  9  L. 
ed.  157. 

^United  States  v.  Union  Pac.  R.  R. 
98  U.  S.  604.  25  L.  ed.  143. 

5 Connecticut,  etc.  Ins.  Co.  v.  Cush- 
man,  108  U.  S.  66,  27  L.  ed.  648,  2 
Sup.  Ct.  Rep.  236. 


701 


§   802  GENERAL  AND  MISCELLANEOUS   PROVISIONS.      [Code  Fed. 

existing  laws,"  nor  to  alter  or  impair  their  operation.  The  district  court 
may  not  by  rule  declare  that  among  admiralty  claims  of  equal  dignity, 
the  first  libelling  shall  be  paid  first. «  The  Supreme  Court  would  have  no 
right  to  enlarge  or  restrict  the  jurisdiction  conferred  by  law  upon  that 
court  or  any  other.9  Competent  evidence  may  not  be  excluded.io  The 
statutory  right  to  plead  to  statute  of  limitations  cannot  be  made  to  de- 
pend upon  the  pleasure  or  discretion  of  the  court  expressed  in  its  rules.n 
Yet  the  time  and  manner  of  filing  pleas  in  a  cause  may  be  regulated  by 
rule;  12  and  a  regulation  of  the  character  of  the  process  to  be  used  in  ad- 
miralty is  not  a  regulation  of  the  court's  jurisdiction.! 3 

§  802.  —  Supreme  Courts'  power  to  make  equity  and  admiralty 
rules  for  lower  courts- 

The  Supreme  court  shall  have  power  to  prescribe,  from  time  to 
time,  and  in  any  manner  not  inconsistent  with  any  law  of  the 
United  States,  the  forms  of  writs  and  other  process,  the  modes  of 
framing  and  filing  proceedings  and  pleadings,  of  taking  and  obtain- 
ing evidence,  of  obtaining  discovery,  of  proceeding  to  obtain  relief, 
of  drawing  up,  entering,  and  enrolling  decrees,  and  of  proceeding 
before  trustees  appointed  by  the  court,  and  generally  to  regulate  the 
whole  practice,  to  be  used,  in  suits  in  equity  or  admiralty,  by  the  cir- 
cuit and  district  court. ^^^'i^^^ 

R.  S.  §  917,  U.  S.  Comp.  Stat.  1901,  p.  684. 


[a]     Scope  and  exercise  of  the  power. 

R.  S.  §  91315  also  recognizes  the  power  of  the  Supreme  Court  to  control 
the  forms  and  modes  of  proceeding  in  equity  and  admiralty.  The  above 
section  of  the  revised  statutes,  is  carried  forward  from  an  act  of  August, 
1842.16  Prior  to  the  law  of  August,  1842,  there  was  a  statute  of  1792,i7 
upon  which  the  Supreme  Court  expressly  rested  its  authority  to  make  the 
equity  rules  of  1822; is  and  under  which  early  statute  it  further  promulgat- 
ed the  equity  rules  now  in  force.  Curiously  enough  the  equity  rules  were 
promulgated  in  March,  1842,  only  five  months  prior  to  the  enactment  of 
the  very  comprehensive  provision  of  the  act  of  August,  1842,  which  is  now 

vThe  Kentucky,  4  Blatchf.  448,  Fed.        loPatterson  v.    Winn,  5  Pet.   233, 

Cas.  No.  7,717;  Gray  v.  Chicago,  etc.  8  L.  ed.  108. 

R.   R.    1    Woolw.   63,    Fed.    Cas.    Xo.        n Washington,   etc.   Co.  v.  Sickles, 

5,713.  19  Wall.  611,  22  L.  ed.  203. 

sSaylor  v.  Taylor,  77  Fed.  476,  23        lll^^^-  rp  i    t>i     i      .oa 

n    n    \    343  isMeyer  v.   Tupper,   1   Black,   526, 

17  L.  ed.  183. 

sPoultney  v.   La   Favette,   12   Pet.        is  See  post,  §  936. 

472,  9  L.  e'd.  1161;  Meyer  v.  Tupper,        iBAct  Aug.  23,   1842,  §  6,  5  Stat. 

1   Black,  526,  17  L.  ed.   182;  Hudson    518. 

V.   Parker.   156  U.   S.   284.   39   L.   ed.        i^See  act  May  8,  1792,  c.  36,  §  2. 

426,  15  Sup.  Ct.  Rep.  450.  isSee  7  Wheat.  5,  5  L.  ed.  375. 

702 


irTocedure]         SUPREME  COURTS'  POWER  TO  MAKE  RULES.  §  802   [b] 

R.  S.  §  917,  supra.  The  present  admiralty  rules  are  of  date  subsequent  to 
the  law  of  1842,  and  hence  were  promulgated  pursuant  thereto.  The  equity 
and  admiralty  rules  constitute  a  very  complete  code  of  equity  and  ad- 
miralty procedure  and  will  be  found  herein,  in  the  chapters  treating  those 
topics.  19 

The  above  provision  authorizes  the  promulgation  of  rules  of  practice, 
but  docs  not  permit  the  Supreme  Court  to  declare  the  rule  of  decision 
which  the  courts  shall  apply. 20  The  validity  of  a  few  of  the  rules  has  been 
challenged,  but  all  have  been  uniformly  sustained.  1  The  power  conferred  is 
not  only  to  make  rules,  but  to  make  them  from  time  to  time.2  The  rules 
so  made  are  obligatory  on  the  circuit  court,3  and  no  practice  in  the  circuit 
court  inconsistent  therewith  is  admissible  to  control  them.4  But  rules  pre- 
scribed by  the  supreme  court  do  not  exclude  other  rules  and  usages  of  the 
circuit  courts,^  though  the  latter  have  no  power  to  make  rules  inconsistent 
with  the  rules  prescribed  by  the  supreme  court; 6  as,  a  rule  adopting  a 
State  law  as  to  the  rights  and  obligations  of  parties  to  injunction  bonds. 
Rules  prescribed  by  the  Supreme  Court  have  the  force  and  effect  of  statu- 
tory provisions. 8  It  is  of  course  not  competent  for  the  courts  to  make  rules 
to  conflict  with  an  act  of  Congress. 9  as  a  rule  making  judgments  or  decrees 
for  money  a  lien  on  land,  or  to  displace  any  lien  where  the  same  is  con- 
ferred by  law.  10  In  New  Jersey  the  circuit  court  has  adopted  the  State 
equity  rules  when  not  in  conflict  with  the  Federal  rules. n 

[b]     History  of  Federal  equity  rules. 

At  the  February,  1822,  term,  the  Supreme  Court  adopted  a  set  of  "Rules 
of  practice  for  the  courts  of  equity  of  the  United  States,"  pursuant  to  the 

i9Sec  post,  §§  935,  et  seq.  §§  llDo,  eStory  v.   Livingston,   13  Pet.  359, 

et  seq.  10  L.  ed.  200:  Oaines  v.  Relf.  15  Pet. 

20The  Selt,  3  Biss.  344.  Fed.   Cas.  9.   10  L.  ed.  fi42 :    Bein  v.  Heath,   12 

No.   12.(i49;  Barron  v.  Locke,  7  Leg.  How.  168,  13  L.  ed.  940;   Jenkins  v. 

Int.  203.  Fed.  Cas.  No.  1,054.  Greenwald.    1    Bond,    126,    Fed.  Cas. 

iln  re  Providence,  etc.  S.  S.  Co.  6  No.  7,270;  see  also  post.  §  805. 

Ben.   124,  Fed.  Cas.  No.   11,451,  Ad-  TBien   v.  Heath,   12   How.   168,   13 

miralty  rule  as  to  limited  liability;  L.   ed.   940. 

Pierpont  v.  Fowle.  2  Wood.  &  M.  23,  sThe   Delaware,    Olcott,    240,   Fed. 

Fed.  Cas.  No.  11,152,  equity  rule  32;  Cas.   No.   3,762;   Scott  v.  The  Young 

Hodge  V.  Bemis,  Fed.  Cas.  No.  6,557 ;  American.  Newb.  Adm.  107.  Fed.  Cas. 

Gardner  v.  Isaacson,  Abb.  Adm.  141,  No.    12,550:    Russell    v.   The   Asa   R. 

Fed.  Cas.  No.  5.230;  The  Bremena  v.  Swift.    Newb.    Adm.    553.    Fed.    Cas. 

Card,  38  Fed.  144;  Louisiana  Ins.  Co.  No.    12,144;    Gaines    v.    Travis,    Abb. 

v.  Niekerson.  2  Low.   310,  Fed.  Cas.  Adm.  422,   Fed.  Cas.  No.  5,180;   The 

No.  8,539;    all    respecting   admiralty  Illinois,  1  Brown  Adm.  13,  Fed.  Cas. 

rules  on   arrest  and  attachment.  No.    7.003 ;    Northwestern   M.    L.    Co. 

2Meyer  v.  Tupper,  1  Black,  522,  17  v.    Keith.    77    Fed.    374,   23    C.    C.   A. 

L.  ed.  180.  196;  American  G.  Co.  v.  National  P. 

sPoultnev  v.   La   Favette.   12  Pet.  Co.  127  Fed.  349. 

472,  9  L.  ed.   1161;   Ex  parte  Whit-  9Grav  v.  Chicago.  I  &  N.  R.  R.  Co. 

ney,  13  Pet.  404,  10  L.  ed.  221.  1    Wool.   63,    Fed.    Cas.   No.    5.173. 

4Bank  v.   White,  8  Pet.  2G2,  8  L.  10 Ward    v.    Chamberlain,  2  Black, 

ed.  9.38.  4.':;0.  17  L.  ed.  319. 

5Van  Hook  v.  Pendleton,  2  Blatchf.  nMeader  v.  Wild  West  Show,  132 

85,  Fed.  Cas.  No.  16,852.  Fed.  281. 

703 


§   803  GENERAL  AND  MISCELLANEOUS  TROVISIONS.        [Code  Fed. 

authority  conferred  by  an  act  of  1792.12  There  were  thirty-three  rules 
then  adopted  and  they  went  into  force  July  1st,  1822.13  The  present  equity 
rules  were  promulgated  in  March,  1842,  and  in  August  of  that  same  year 
the  provision  which  is  now  R.  S.  §  017,  supra,  was  enacted  conferring  very 
ample  powers  upon  the  courts  to  make  such  rules.  As  originally  adopted 
there  were  ninety-two  rules,  the  last  merely  providing  "These  rules  shall 
take  effect  and  be  of  force  in  all  the  circuit  courts  of  the  United  States 
from  and  after  the  first  day  of  August  next;  but  they  may  be  previously 
adopted  by  an  circuit  court  in  its  discretion ;  and  when  and  as  soon  as  these 
rules  shall  so  take  effect,  and  be  of  force,  the  rules  of  practice  for  the 
circuit  courts  in  equity  suits  promulgated  and  prescribed  by  this  court  in 
March,  1822,  shall  henceforth  cease  and  be  of  no  further  force  and  effect."i4 
Only  three  general  eqviity  rules  have  since  been  added. is  The  present 
equity  rules  are  many  of  them  modeled  closely  after  certain  English  orders 
in  chancery  drawn  in  1841.16 

§  803.  —  to  make  bankruptcy  rules. 

All  necessary  rules,  forms  and  orders  as  to  procedure  and  for 
carrying  this  act  into  force  and  effect  shall  be  prescribed,  and  may 
be  amended  from  time  to  time,  by  the  Supreme  Court  of  the  United 
States. 

§  30  of  act  .July  1,  1898,  c.  541,  30  Stat.  554,  U.  S.  Comp.  Stat.  1901, 
p.  3434. 

General  orders  and  forms  in  bankruptcy  were  adopted  pursuant  to  the 
above  authority,  on  Nov.  28,  1898  to  take  effect  January  2,  1899.  This 
section  has  not  been  deemed  to  exclude  power  in  the  district  courts  and  the 
circuit  court.s  of  appeals  to  adopt  further  bankruptcy  rules,  and  such  have 
been  adopted  in  some  districts  and  circuits.  The  Supreme  C!ourts  orders 
and  forms  in  bankruptcy  will  be  found  elsewhere.is 

§  804.     Power  of  circuit  court  of  appeals  to  make  rules. 

The  [circuit]  court  [of  appeals]  shall  have  power  to  establish  all 
rules  and  regulations  for  the  conduct  of  the  business  of  the  court 
within  its  jurisdiction  as  conferred  by  law. 

12 Act   May   8,   1792,  c.   3G,   §   2,   1    Manual,  p.  4.     The  rules  are  also  to 

Stat.  .  be  found  in  1  How.  1. 

I'jQ^^  "7   \n7;,^„f    K  (3    K  T     ^A    o""  isRulc    92.    Dec.    term,    186,3,    post. 

isfeee   /    Wheat.  5-b,  5  L.  ed.  6io-    „  ,„„.t  ^      u-       xu         •   •      i  J>r.   j 

« —  g   lOn.i.  supplanting  the  origmal  92nd 

rule.     Rule  93,  Oct.  term.  1878,  post, 

i4The  rules  were  printed  by  Rich-    §    2022.      Rule    94,    Oct.    term,    1881. 

ard  Peters  in  the  ajipendix  to  17  Pet.    post.   §    9.53. 

U.  S.  Rep.  61.  wliioh,  however,  is  not        isPor  reference  to  the  sources  from 

part  of  the  official  set  because  How-    which  the  equity    rules   were    drawn, 

ard  had  then  succeeded  Peters  as  re-    see  post,  §  937  [b]. 

porter  and  the  matter  in  17  Pet.  is  all        isSee    title    bankruptcy,    post,    §§ 

contained  in  1  How.     See  Lawy.  Ref.    2200,  et  seq,  and  see  Index. 

704 


I 


Procedure]  CIRCUIT  AND  DISTRICT  COURT  RULES.  §  803   [a] 

Part  of  §  2  act  of  Mar.  3,  1891,  c.  517,  26  Stat.  S27,  §  2,  cl.  2,  U.  S. 
Ck)mp.  Stat.  1901,  p.  547. 

A  set  of  thirty-four  rules  was  drawn  up  shortly  after  the  passage  of  the 
act  of  1891,  for  the  courts  in  several  circuits.  These  are  the  basis  of  ex- 
isting rules  in  the  several  circuits,  although  they  have  been  supplemented 
and  amended  in  various  ways  in  different  circuits. 20 

§  805.     Power  of  circuit  and  district  courts  to  make  rules. 

The  several  circuit  and  district  courts  may,  from  time  to  time, 
.and  in  any  maner  not  inconsistent  with  any  law  of  the  United 
States,  or  with  any  rule  prescribed  by  the  Supreme  Court  under  the 
preceding  section,^  make  rules  and  orders  directing  the  returning  of 
writs  and  processes,  the  filing  of  pleadings,  the  taking  of  rules,  the 
■entering  and  malcing  up  of  judgments  by  default,  and  other  matters 
in  vacation,  and  otherwise  regulate  their  own  practice  as  may  be 
necessary  or  convenient  for  the  advancement  of  justice  and  the  pre- 
vention of  delays  in  proceedings.  t^^"[<^i 
E.  S.  §  918,  U.  S.  Comp.  Stat.  1901,  p.  685. 

I^a]     Related  statutory  provisions. 

This  section  is  carried  forward  from  acts  of  1793  and  1842.3  A  statute 
creating  two  divisions  in  the  western  judicial  district  of  Michigan,  recog- 
nizes the  power  of  the  circuit  and  district  court  therein  to  regulate  "by 
general  rule  the  venue  of  transitory  actions,  either  in  law  or  in  equity,'' 
and  to  change  the  same  for  cause. 4  The  circuit  courts  are  expressly  au- 
thorized to  formulate  rules  governing  appeals  from  the  board  of  general 
appraisers. s  R.  S.  §  915  regarding  attachment  and  other  process  in  Federal 
courts  provides  that  the  circuit  and  district  courts  may  "by  general  rules" 
adopt  any  changes  that  may  be  made  in  the  local  law  on  the  subject. 6 
R.  S.  §  916"  confers  a  similar  discretion  in  the  matter  of  State  executive 
laws.  Both  these  provisions  give  the  Federal  court  a  discretion,  and  there- 
fore a  latitude  in  the  making  of  rules,  when  the  State  "-'langes  its  laws 
touching  execution  and  attachment.8  So  also  R.  S.  §  914,  with  which  the 
above  provision  must  be  construed,^  respecting  Federal  common  law  pro- 
•cedure  in  general,  recognizes  the  power  of  the  circuit  and  district  courts  to 
make  rules  by  requiring  conformity  only  "as  near  as  may  be,"  to  the  local 
State  practice  "any  rule  of  court  to  the  contrary  notwithstanding."! 0    This 

20See  Index.  sSce  post.  ^  nO.T. 

2See  ante,  §  802.  ^See  post.  §  925. 

3 Act   Mar.   2,    17'93.   c.    22,   §    7,    1  sSee   Lancaster   v.   Keeler.    123   U. 

Stat.  3.35:   act  Aug.  23,  1842.  c.   188.  S.  376.  31  L.  ed.  238.  8  Sup.  Ct.  Rep. 

§  6.  5  Stat.  518.  197. 

4Soe  act  June   19,   1878.   c.   326.   §  aimporters.  etc.  Co.  v.  Lyons,   134 

-2.   20   Stat.    176.  U.   S.   Comp.   Stat.  Fed.  510. 

1901.  p.  572.  loSee  post.  §  900. 

sPost,    §    1447. 
Fed.  Proc— 45.  705 


§   80r.    [b]         GENERAT-    AND    MISCBI-LANEOI'S    rilOVISlONS.       [Code    Fed. 

last  provision,  however,  whicli  was  lirst  enacted  in  1872,  I'eslriets  the  powei- 
of  making  rules  for  common  law  causes  which  had  previously  been  granted 
to  the  lower  Federal  courts  except  as  respects  attachment  and  executions, 
which  are  governed  by  R.  S.  §§  915,  !)l(j.  The  early  process  acts  pursued 
the  policy  of  adopting  the  State  procedure  a.s  existing  at  a  given  date,  and 
permitted  the  Federal  courts  by  rule  to  adopt  later  charges  in  the  State 
practice  if  they  saw  fit.n  The  power  to  make  rules  was  consequently 
broader.i2  The  effect  of  R.  S.  §  914  is  to  make  changes  in  State  practice 
operative  in  the  Federal  courts  forthwith,  if  at  all,  "any  rule  of  court  to 
the  contrary  notwithstanding."! 3  I^  the  requirement  as  to  conformity  ap- 
plies at  all,  it  applies  at  once  upon  tne  adoption  of  the  change  in  the  State 
practice,  a  conflicting  rule  of  court  is  abrogated  ipso  facto. i*  This  is 
not  true  as  to  change  in  the  State  law  respecting  attachment  or  executioTi.i* 
[b]     Scope  of  power  to  make  rules. 

The  extent  to  which  Federal  circuit  and  district  courts  can  still  make 
rules  for  their  practice  in  common  law  causes,  notwithstanding  R.  S.  §  914, 
IS  not  susceptible  of  precise  statement. is  As  to  matters  which  are  covered 
by  specific  State  statutes  or  rules  of  the  State  courts,  it  depends  upon  the 
phrase  "as  near  as  may  be,"  and  merges  itself  in  the  broader  question  of  the 
interpretation  of  R.  S.  §  914.1"  If  the  subject  matter  of  a  State  law  or 
State  rule  of  practice  is  such  that  it  is  not  in  force  in  Federal  courts  under 
the  conformity  clause,  then  the  fact  of  its  existence  does  not  prevent  the 
making  of  a  Federal  rule  on  the  same  subject,  or  abrogate  one  already 
made.  Many  cases  deal  with  State  provisions  respecting  practice  that  are 
or  are  not  held  in  force  in  the  Federal  courts,i8  but  few  have  involved  an 
existing  ai»d  divergent  Federal  rule.  In  one  case  a  State  law  changing  and 
regulating  the  return  time  of  process  was  held  not  to  supersede  the  rules 
as  to  the  time  and  place  of  return  of  process  in  the  Federal  court  there 
sitting.19  Where  the  Federal  court  makes  a  rule  notwith.standing  an  ex- 
isting State  law  or  State  rule,  the  practitioner  is  justified  in  following  such 
rule,  because  the  adoption  of  the  rule  evinces  an  opinion  that  it  is  within 
the  discretion  conferred  by  "as  near  as  may  be."  But  every  change  in  the 
local  practice  subsequent  to  a  rule  raises,  anew,  the  question  whether  such 
change  does  not,  under  R.  S.  §  914,  change  the  Federal  practice  and  abrogate 
the  rule.  20 

iiSee  act  May  19,  1828,  c.  OS,  §  1,    L.   ed.  425.     15    Sup.     Ct.   Rep.    4.52; 

4  Stat.  278.         "  Osborne  v.  Detroit.  28  Fed.  385. 

1  oc-      ^T-11         T)     111  Aii7u„„+    ^oi  I'lRppoiblic  Ins.  Co.  v.  Williams.  S 

i2See  Mills  v.  Bank.  11  Wheat.  4J],  ^.        .,L„    ^^   ,     ^        -vt      n  ~r.T 

y,    T        1     -i.T         J-    •    •  1       ]•  Biss.   ,](0.   Fed.    Cas.   No.   11, /07:    see 

6   L.    ed.   .t12.    sutaming   a   rule    dis-  t.,       •  r>  i     t-  n-    t-    i 

.,,  r     f  i.-        „;  .Morrison    v.    Bernards   Twp.   3o    Ped. 

pensing   with    proof   of   execution   of  „„  ^ 

a  bond,  not  denied  under  oath ;  Pome-  .\y            ,              ^^     ,         ,_„    ,,     ., 

oi   4     r)   „,i     1  \n7„ii    n(\o    17  T  i'J..amaster    v.    Keeler.    123    L.    S. 

rov  V.  State  Bank.  1  Wall.  5!)2.  1/  L.  .,_,,    „.  ^       ,    £,„„    _  „        r<4.  t>       o/it 

V    ^oo        1           i                      If  -^'b.  31  L.  ed.  238.  8  Sup.  Ct.  Rep.  247. 

ed.  638,  rule  as  to  common  law  form  ,.c                  n      oi           i         *  i 

of  bill  of  excentions  ^^^  generally,  Shepard  v.  Adams, 

ot  Dill  ot  exceptions.  ^^g  ^^   ^    ^^5.  42  L.  ed.  604,  18  Sup. 

isRosenbach    v.    Dreyfuss.    2    Fed.    Ct.  Rep.  214. 
23:  Ricard  v.  New  Provid'ence.  5  Fed.        iTSee  post.  §  900. 
433;    Republic    Ins.   Co.  v.    Williams,         ispost,    §    900. 

3  Biss.  370,  Fed.  Cas.  No.  11.707:  1  "Ewing  v.  Burnham,  74  Fed.  384. 
Hudson  v.  Parker,  156  U.  S.  281,  39        2  "Republic  Ins.  Co.  v.  Williams,  3 

706 


I'loeiHluie] 


CIRCT'lT  AND  DISTIUOT  COL'UT  RULES. 


§   80.J    [bl 


As  respects  matters  not  tovered  by  specilic  State  statute  or  State  rule, 
the  Federal  circuit  and  district  courts  undoubtedly  have  power  to  adopt 
rules  of  practice  in  common  law  causes  not  inconsistent  with  the  Federal 
Constitution  and  laws.  Congress  did  not  intend  "to  place  the  courts  of  the 
United  States  in  each  State,  in  reference  to  their  own  practice  and  pro- 
cedure, upon  the  footing  merely  of  subordinate  State  courts,  required  to 
look  from  time  to  time  to  the  Supreme  Court  of  the  State  for  authoritative 
niles  for  their  guidance  in  those  details."2  They  may  adopt  a  rule  for  hear- 
ing issues  of  law  within  five  days  instead  of  at  the  next  term,  if  there  be 
no  State  statute  to  the  contrary, 3  and  merely  a  State  practice  not  based 
upon  statute  or  written  rule.*  They  are  not  bound  by  the  construction  a 
State  supreme  court  puts  upon  a  law  regarding  practice.s  Xor  are  they 
bound  by  general  State  decisions  upon  questions  of  practice  which  are  not 
in  construction  of  specific  statutes. 6  They  have  power,  in  the  absence  of 
any  State  law,  to  make  a  rule  respecting  special  appearance  providing  that 
the  party  agree  to  appear  generally  if  the  piirpose  of  the  special  appear- 
ance is  not  sanctioned  or  allowed  by  the  court. v  They  may  adopt  a  rule 
which  includes  and  goes  further  than  the  State  law  as  to  mode  of  service 
of  process. 8  The  details  of  the  methods  of  doing  the  business  of  Federal 
'■ourts  is  still  under  their  control  and  may  be  governed  by  their  rules. 9 
The  power  to  require  printed  briefs  has  been  upheld ;io  and  to  dispense  with 
proof  of  instruments  in  suit  where  execution  not  denied. n  The  power  of 
tlie  circuit  courts  to  make  rules  in  equity  is  considered  elsewhere. 12 
Power  to  make  admiralty  rules  is  derivable  from  R.  S.  §  918.13  Undoubted- 
ly these  must  be  consistent  with  the  admiralty  rules  promulgated  by  the 
Supreme  Court.  Rules  respecting  the  making  up  of  the  trial  calendar  :i-» 
and  for  the  collection  and  disposition  of  moneysis  have  been  upheld  by 
nisi  prius  decisions. 


Bi.ss.  370.  Fed.  Cas.  No.  11.707.  TTpon 
appeal  the  suprcTue  court  lias  as- 
siimed  that  a  failure  to  change  a  rule 
after  change  in  tne  State  law  was 
nursiiant  to  the  discretion  conferred 
by  "as  near  as  mav  be."  Shepard  v. 
Adams,  IfiS  U.  S.  627,  42  L.  ed.  002. 
IS'  Sup.  Ct.  Rep.  214. 

2Erstein  v.  Rothschild,  22  Fed.  (51. 

3But  if  there  is  a  statute,  it  should 
be  followed:  Rosenbacli  v.  Drevfuss. 
2  Fed.  2.3:  Republic  Ins.  Co.  v."  Wil- 
liams. .3  Biss.  370.  Fed.  Cas.  No.  11,- 
707:  Osborne  v.  Detroit.  28  Fed.  385. 

4T-:rstein  v.  Rothschild.  22  Fed.  01. 

5 See  ante.  §  10  [    1 

fiWall  V.  Chesai)eake  &  O.  Rv.  95 
Fed.  398.  ihi  C.  C.  A.  308;  Sanford  v. 


^Alahr  v.  Union  P.  R.  R.  140  Fed. 
925. 

sLowry  \\  Story.  31   Fed.  771. 

sEwing  V.  Buriiliam,  74  Fed.  384. 

lONefT  V.  Pennover,  3  Sawv.  335, 
Fed.   Cas.   No.   10. 184. 

11  Mills  V.  Ignited  States  Bank.  11 
Wheat.  431.  6  L.  ed.  512. 

i2Post,  S   S06. 

13 Norton  v.  Rich.  3  ^ilason.  443. 
Fed.  Cas.  No.  10.352;  The  Epsilon.  0 
Ben.  378.  Fed.  Tas.  No.  4.50(i ;  The 
Alice  Tainter.  14  Blatchf.  225.  Fed. 
Cas.  No.  196. 

KScott  V.  The  Young  Ainerican. 
Newb.  107.  Fed.  Cas.  No.  12.5.30: 
Ward  V.  Chamberlain.  Fed.  Cas.  No. 
17.152. 

isThe    Alice    Tainter,    14   Blatchf. 


Portsmnnth,   2   Flipp.    105,    Fed.   C^is.    225.  Fed.  Cas.  No.  196;  The  Laurens, 
No.  12.315.  1  Abb.  Adm.  508,  Fed.  Cas.  No.  8,1_2. 

707 


§   8051/2  GENERAL    AND    MISCELLANEOUS    PROVISIONS.       [Code  Fed. 

[c]     Rules  need  not  be  in  writing. 

The  rules  of  tlie  circuit  and  district  courts  have  not  always  been  formal 
or  in  writing.i"  Uniform  practice  through  a  series  of  years,  and  judicial 
decision  may  constitute  suflicient  evidence  of  the  existence  of  a  rule. is 

§  8051/2-  —  to  make  rules  in  admiralty. 

In  all  cases  not  provided  for  in  the  foregoing  rules,  [i.  e.  the 
general  admiralty  rules  promulgated  by  the  Supreme  Court]  the 
district  and  circuit  courts  are  to  regulate  the  practice  of  the  said 
courts  respectively  in  such  manner  as  they  shall  deem  most  expedient 
for  the  due  administration  of  justice  in  suits  in  admiralty. 
4Gth  admiralty  rule. 

§  806.     Circuit  courts'  power  to  make  rules  in  equity. 

The  circuit  courts  (a  majority  of  all  the  judges  thereof,  including 
the  justice  of  the  Supreme  Court,  the  circuit  judges,  and  the  district 
judge  for  the  district  concurring  therein)  may  make  any  other  and 
iurther  rules  and  regulations  for  the  practice,  proceedings  and 
process,  mesne  and  final,  in  their  respective  districts,  not  inconsist- 
ent with  the  rules  hereby  prescribed,  in  their  discretion,  and  from 
time  to  time  alter  and  amend  the  same. 

89th  equity  rule,  as  amended  Apr.  16,  1894,  152  U.  S.  710. 

R.  S.  §  9181  applies  to  equity  cases  as  well  as  common  law  causes.  Tn 
addition  the  equity  rules  promulgated  by  the  Supreme  Court  contain  the 
above  delegation  to  the  circuit  courts  of  power  to  make  further  regulations. 
The  power  would  seem  to  flow  more  logically  from  R.  S.  §  918,  than  from 
the  above  rule,  as  it  is  not  perceived  that  the  section  authorizing  the  Su- 
preme Ck)urt  to  make  equity  rules  empowers  them  to  delegate  that  function 
to  the  circuit  courts.  In  any  event  the  existence  of  power  in  the  circuit 
courts  to  make  rules  in  equity  not  inconsistent  with  any  law  of  the  United 
States  or  with  any  rule  of  the  Supreme  Court  and  subject  to  the 
right  of  the  Supreme  Court  to  supersede  or  alter  the  same  at  any 
time,  cannot  be  questioned. 2  The  scope  of  the  circuit  court's  power 
to  establish  rules  in  equity  is  quite  carfully  examined  by  Blatch- 
ford,  J.,  in  a  case  sustaining  the  power  to  adopt  the  State  attachment  law 

iTLowrv  V.  Story.  31   Fed.  771.  7.924:  Sellers  v.  Corwin.  5  Ohio.  398; 

isFullerton    v.   'Bank.    1    Pet.   604.  24  Am.  Doc.  .301  ;  Wall  v.  Chesapeake 

613,  7  L.  ed.  280;   Duncan  v.  United  &    0.   Rv.   m   Fed.   403:    Valorino    v. 

States.  7  Pet.  43.5.  4.il.  8  L.  ed.  739:  Thompson.  28  Fed.  Cas.  867:  Citizens 

United  States  v.  Douglass.  2  Blatchf.  Bank  v.  Farwell.  56  Fed.  574,  6  C.  C. 

214.   Fed.     Cas.     No.     14.989;    United  A.  24. 

States  V.  Stevenson,  1  Abb.  U.  S.  495,  lAnte,  §  805. 

Fed.     Cas.     No.     16.395;     Koning   v.  2Steam  S.  C.  Co.  v.  Jones,  13  Fed. 

Bayard,  2  Paine,  251,  Fed.  Cas.  No.  581,  21  Blatchf.  138. 

708 


Proceduiej  I'OWER  TO   I'UXISH   CONTEMPTS.  §   807    [a] 

to  govern  the  issue  of  writ  of  sequestration  as  mesne  process  in  equity. a 
The  circ-uit  court  cannot,  however,  make  equity  rules  inconsistent  with  those 
of  the  Supreme  Court; 4  nor  has  it  power  to  rescind  the  rules  made  by  the 
Supreme  Court. 5  Yet  it  has  power  to  relieve  a  party  in  a  particular  case 
against  a  requirement  of  the  rules,  as  to  time  for  pleading,  that  would 
work  a  hardship; 6  and  it  may  refuse  to  dismiss  though  complainant  is 
technically  in  default  under  the  equity  rules." 

§  807.     Power  to  impose  oaths  and  punish  contempts. 

The  said  courts  [i.  e.  courts  of  the  United  States]  shall  have  pow- 
er to  impose  and  administer  all  necessary  oaths,  and  to  punish.  l)y 
fine  or  imprisonment,  at  the  discretion  of  the  court,  contempts  of 
their  authority  if^^'f"^^  provided,  that  such  power  to  punish  contempt- 
shall  not  be  construed  to  extend  to  any  cases  except  the  misl^ehavior 
of  any  person  in  tlieii-  presence,  or  so  near  thereto  as  to  obstruct  the 
administration  of  justice,"^*^]  the  misbehavior  of  any  of  the  officers  of 
said  courts  in  their  official  transaction,^'^^  and  the  disobedience  or 
resistance  by  any  such  officer,  or  by  any  party,  juror,  witness  or 
other  person,  to  any  lawful  writ,  process,  order,  rule,  decree  or 
command  of  the  said  courts. '^^^"'^'^ 

R.  S.   §   725,  U.   S.  Comp.   Stat.   1901,  p.  583. 

[a]     History  of  the  statutory  provision. 

The  original  judiciary  act  invested  the  Federal  courts  with  "power  to 
punish  by  fine  or  imprisonment  at  the  discretion  of  said  courts,  all  con- 
tempts of  authority  in  any  cause  or  hearing  before  the  same."io  An  act 
of  183111  qualified  the  broad  language  of  the  original  provision  by  declar- 
ing that  •"tiie  power  of  the  several  courts  of  the  United  States  to  issue  at- 
tachments and  inflict  summary  punishments  for  contempt"  should  not  ex- 
tend to  the  cases  mentioned  in  the  foregoing  proviso  of  R.  S.  §  725.  R.  S. 
§  725  is  framed  from  these  two  enactments,  though  it  will  be  noted  that 
the  word  "summary"  is  omitted  from  the  present  law.  It  has  been  decided 
however,  that  the  courts  may  still  proceed  summarily  notwithstanding  the 
omission.i2  The  purpose  of  the  qualification  introduced  by  the  act  of  1831 
has  been  said  to  be  the  prevention  of  punishment  of  newspaper  criticism  as 

"Steam    Stone   L.   Co.   v.  Jones.    13  TRyan  v.  Seaboard  &  R.  R.  Co.  SO 

Fed.  581.  21  Blatchf.  138.  Fed. '403:     Electrolibration     Co.     v. 

■«Bank  of  U.  S.  v.  Wliito.  8  Pet.  202,  Jackson.  .52  Fed.  773. 

26<>.  8  L.  ed.  940.  941  :   Northwestern  lOAct    Sept.   24.   1789.   c.   20.   §    17. 

M.  L.  I.  Co.  V.  Keith.  77  Fed.  375,  23  1   Stat.  83. 

C.  C.  A.  196.  and  cases  cited.  iiAct  March  2.  1831.  c.  99.  4  Stat. 

s.Tenkins  v.  Greenwald.  1  Bond,  127,  487. 

Fed.  Cas.  No.  7.270.  isEilenbccker  v.  Plvmouth  Co.   134 

fiPoultnev  v.    La    Fayette,  12  Pet.  U.    S.    37.    33    T>.    ed.'  804.     10     Sup. 

472.  9  L  (>d.  IIGI.  Ct.    Rep.    420:    Ex    parte   Terry,    128 

709 


S   SOT    LbJ         GI:\I:i;A1,    and    .MISCELLAXKOIS     I'UOVISIONS.       [Code  Fed. 

a  conteiu])!  ot'  court, i"  pursuant  to  early  decisions. n  The  act  of  1831  also 
made  the  offense  of  obstructing  the  administration  of  justice  a  crime  against 
the  United  States  and  that  provision  is  now  R.  S.  §  53!)y.  The  statutory 
provisions  respecting  letters  rogatory  provide  that  "If  any  person  shall  re- 
fuse or  neglect  to  appear  at  the  time  and  place  mentioned  in  the  summons 
issued,  in  accordance  with  section  forty  hundred  and  seventy-one,  or  if  upon 
his  appearance  he  shall  refuse  to  testify,  he  shall  be  liable  to  the  same 
penalties  as  would  bo  incurred  for  a  like  offense  on  the  trial  of  a  suit  in 
the  district  court  of  the  Llnited  States."i5  Other  provisions  for  enforcing 
attendance  and  testimony  of  witnesses  are  contained  in  another  chapter  of 
this  work.ifi 

[bj     Nature  and  limitations  of  Federal  contempt  power. 

The  Federal  courts  possess  inherently  a  power  to  punish  for  contempt, 
just  as  do  other  courts. is  The  above  section,  hawever,  defines  and  limits 
the  extent  of  the  power  exercisable  by  them. 19  It  has  been  doubted 
whether  those  limitations  apply  to  the  Supreme  Court,  since  its  powers  are 
tlerived  from  the  Constitution  and  not  from  Congress. 20  But  they  apply 
to  the  courts  created  by  Congress  and  as  much  when  sitting  in  equity,  as 
at  law.i  Since  it  provides  punishment  by  line  or  imprisonment,  the  court 
has  no  power  to  punish  in  other  manner,  as,  by  disbarment; 2  although  the 
same  acts  might  constitute  ground  for  disbarment  proceedings. 3  The  fact 
that  the  act  committed  is  also  indictable,  does  not  oust  the  right  to  punish 
it  as  a  contempt  if  within  the  terms  of  R.  S.  §  725.4  The  section  should  not 
be  construed  as  extending  the  inherent  contempt  power  of  the  courts  to 
matters   which    do    not   constitute   contempt,   although   possibly    within    its 


r.  S.  289,  32  L.  ed.  405,  9  Sup.  Ct. 
Rep.  77:  Ex  parte  Savin,  131  U.  S. 
267.  33  L.  ed.  153.  9  Sup.  Ct.  Rep. 
(599:  In  re  Neagle.  14  Sawv.  267.  3£> 
Fed.  857,  5  L.R.A.  91. 

isUnited  States  v.  Anon.  21  Fed. 
768;  In  re  Mav,  2  Flip  562.  1  Fed. 
742;  Ex  parte  McLeod,  120  Fed.  130. 
14  See  Hollingsworth  v.  Duane. 
Wall.  C.  C.  77.  Fed.  Cas.  No.  6.616; 
Ex  parte  Poulson,  Fed.  Cas.  No.  11,- 
350:  Morse  v.  Montana  Op.  Co.  105 
Fed.  337. 

15R.  S.  §  40.  73.  U.  S.  Comp.  Stat. 
1901.  p.  2764. 

i6See  generally,  post.  SS  1742.  et 
seq. 

isUnited  States  v.  Hudson.  7 
Cranch.  32,  34.  3  L.  ed.  260;  In  re 
Nevitt,  117  Fed.  455,  54  C.  C.  A.  622: 
Ex  parte  Robinson,  19  Wall.  506.  22 
Tj.  ed.  205 ;  United  States  v.  New 
Bedford  Bridge.  1  Wood.  &  M.  401, 
Fed.  Cas.  No.  15,867;    In  re  Neagle. 


14  Sawv.  267.  39  Fed.  S57.  5  L.R.A. 
91. 

i9Ex  parte  Robinson,  19  Wall.  506. 
22  L.  ed.  205;  Savin.  Petitioner.  131 
U.  S.  276,  33  L.  ed.  153,  9  Sup.  Ct. 
Rep.  701 ;  Kirk  v.  Milwaukee,  etc.  Co. 
26  Fed.  505;  Hovey  v.  Elliott,  145  N. 
Y.  136,  39  N.  E.  842.  39  L.R.A.  460: 
Bridges  v.  Sheldon,  18  Blatchf.  518. 
7  Fed.  17. 

20Ex  parte  Robinson.  19  Wall.  506. 
22  L.   ed.  205. 

iKirk  V.  Milwaukee,  etc.  Co.  26 
Fed.  505. 

2Ex  parte  Robinson.  19  Wall.  506. 
22  L.  ed.  205. 

^United  States  v.  Green.  85  Fed. 
860. 

4Ex  parte  Savin,  131  U.  S.  275,  33 
L.  ed.  153.  9  Sup.  Ct.  Rep.  699;  In  re 
Brule,  71  Fed.  946;  United  States  v. 
Terry.  14  Sawy.  427,  41  Fed.  773: 
Hillmon  v.  Mutual  L.  I,  Co.  79  Fed. 
750. 


710 


Procedure] 


POWER  TO  PL'MSIi   COXTKMl-TS. 


S   807    [c] 


terms.5  Subordinate  tribunals  or  officers  such  as  commissioners  have  no 
power  to  punish  for  contempt, 6  nor  is  there  such  a  thing  as  contempt  of 
an  administrative  body  or  officer  in  the  absence  of  statute.'  A  commis- 
sioner has  no  power  to  deny  parties  a  right  to  be  represented  by  counsel  in 
advance  of  any  judicial  ascertainment  of  an  alleged  contempt. *>  Xo  other 
court  than  the  one  whose  dignity  is  offended  by  the  disobedience  or  mis- 
behavior, has  jurisdiction  to  punish  a  contempt. 9  Hence  a  contempt  prior 
to  removal  must  be  adjudged  in  the  State  court. lo 

[c]     Misbehaviour  in  courts  presence  or  obstructing  its  functions. 

The  Supreme  Court  has  decided  that  the  court  while  in  session  is  present, 
within  the  meaning  of  this  section,  in  every  part  of  the  place  set  apart  for 
its  use  and  the  use  of  its  officers,  jurors  and  witnesses.  12  So  that  there 
may  be  contempts  in  the  presence  of  the  court  in  this  sense  which  are  not 
actually  under  the  eye  or  within  the  view  of  the  judge.  Accordingly  an  at- 
tempt to  bribe  a  witness  from  testifying,  made  in  the  hallway  adjoining  the 
court  room  and  repeated  in  the  w'itness  room  has  been  punished  as  con- 
tempt in  the  court's  presence.is  Abusive  language  in  the  court  room.i-t  or 
resisting  removal  from  the  court  room  by  the  marshal  acting  by  the  court'.s 
nrder,i5  or  oommitting  an  assault  at  the  entrance, 1 6  or  misbehavior  of  a 
witness  before  a  jury.i"  all  present  plain  cases  of  misbehavior  in  court. 
Misbehavior  upon  a  piazza  into  which  the  windows  of  the  court  room  open 
has  also  been  held  to  be  in  the  court's  presence.is  Service  of  process  in 
an;^ther  cause  upon  a  suitor  attending  a  term  of  court,  is  contempt  if  in 
the  actual  or  constructive  presence  of  the  court,  but  not   otherwise. i" 


5Matter  of  Atlantic  M.  L.  Ins.  Co. 
n  Ben.  337.  Fed.  Cas.  Xo.  629. 

sin  re  Perkins.  100  Fed.  950:  Ex- 
pa  rte  Perkins,  29  Fed.  905. 

"Interstate  Com.  Comrs.  v.  Brim- 
son,  154  U.  S.  447.  38  L.  ed.  1047,  14 
Sup.  Ct.  Rep.  1125:  see  In  re  Chad- 
wick.  1  Low.  439,  Fed.  Cas.  Xo. 
2,  570;  Matter  of  :Meador.  1  Abb.  317, 
Fed.  Cas.  Xo.  9.375. 

^Johnson  v.  Southern  Bldg.  Co.  99 
Fed.  64f). 

•'X"ew  Orleans  v.  Xew  York  M.  Co. 
20  Wall.  387.  22  L.  ed.  354:  Bovd  v. 
I'nited  States.  116  U.  S.  610.  29  L. 
ed.  746.  6  Sup.  Ct.  Rep.  524;  In  re 
Debs.  158  U.  S.  564.  39  L.  ed.  1092. 
15  Sup.  Ct.  Rep.  900:  In  re  Ellerbe.  4 
McCrarv,  449.  13  Fed.  nZO:  Ex  parte 
Broadley.  7  W:ill.  364,  19  L.  ed.  214: 
United  States  v.  (Ireen,  85  Fed.  859; 
In  re  Litchtield.  13  Fed.  S63;  In  re 
X'evitt,  117  Fed.  448.  54  C.  C.  A.  622. 

loKirk  V.  Milwaukee.  D.  C.  Co.  26 
Fed.  501  ;  Voorliees  v.  Albright.  2  X. 
J.  L.  J.  57.  Fed.  Cas.  Xo.   l(i.999. 

12E.X  parte  Savin.  131   l".  S.  277.  33 


L.  ed.  153,  9  Sup.  Ct.  Rep.  699 :  Tn  re 
Brule.  71  Fed.  947. 

i3Ex  parte  Savin.  131  V .  S.  276. 
33  L.  ed.  153.  9  Sup.  Ct.  Rep.  699; 
see  In  re  Cuddv.  131  U.  S.  280.  33 
L.  ed.  154,  9  Sup.  Ct.  Rep.  703. 

i^United  States  v.  Emers(m.  4 
Cranoh.  C.  C.  188.  Fed.  Cas.  Xo.  15.- 
050:  United  States  v.  Carter.  3 
Cranr-h.  C.  C.  423.  Fed.  Cas.  Xo.  14.- 
740. 

i3ln  re  Terrv.  13  Sawv.  456.  36 
Fed.  419. 

isUnited  States  v.  Emerson.  4 
Cranch.  188.  Fed.  Cas.  Xo.  15.050. 

1  "United  States  v.  Caton.  1  Cranch. 
C.  C.  150.  Fed.  Cas.  Xo.  14.758. 

iJ^United  States  v.  Carter.  3 
Cranch.   423.   Fed.   Cas.   Xo.    14.740. 

1 'Blight  V.  Fisher.  Pet.  C.  C.  41, 
Fed.  Cas.  Xo.  1.542.  In  Bridges  \. 
Sheldon.  7  Fed.  43.  46.  service  in  a 
new  case  was  made  upon  a  suitor  at- 
tending the  taking  of  depositions  oe- 
fore  a  court  commissioner:  and  the 
court  held  it  a  conteii'pt  in>r)ii  the 
thoorv    that     it     was    virtiiallv    dis- 


■11 


§  SOT   [d] 


GENERAL  AND  MISCELLANEOUS  PROVISIONS.        [Code  Fea. 


There  is  some  question  whether  misbehavior  so  near  '"as  to  obstruct  the 
administration  of  justice"  means  merely  physical  disturbance  in  the  vicinity, 
interrupting  the  quiet  of  the  court  while  in  session,  and  hindering  the 
transaction  of  its  business,  or  would  include  misbehavior  tending  to  ob- 
struct justice  in  a  more  figurative  sense. 2  In  the  latter  view  it  has  been 
lield  a  contempt  to  bribe  a  witness  in  a  cause  though  the  bribery  was  not 
in  or  near  the  court  rooms  and  to  assault  a  court  commissioner  upon  the 
highway,  for  official  acts; 4  and  perhaps  contempt  for  a  juror  to  talk  about 
a  case  though  the  court  has  failed  to  admonish  him  not  to; 5  or  to  form  an 
opinion  after  subpoena  in  order  to  disqualify  himself. 6  While  another  case 
has  held  that  writing  of  letters  by  a  State  insurance  commissioner  re- 
specting the  fairness  of  litigation  cairied  on  by  certain  companies  could  not 
be  deemed  an  obstruction  of  the  administration  of  justice  within  this 
section;''  and  another  that  publication  of  libelous  or  slanderous  matter  re- 
specting the  court  or  its  proceedings  is  not  contempt  within  this  clause,  s 
The  supreme  Court  has  declared  that  the  bringing  of  a  pretended  and 
fictitious  controversy  before  it  for  decision  is  a  grave  contempt  of  court. 9 
The  fact  that  the  misbehavior  primarily  involved  merely  a  court  examiner 
or  commissioner,!  0  or  the  baliff,ii  or  the  grand  jury,i2  or  a  bankruptcy 
register  or  referee,  13  does  not  make  it  any  the  less  a  contempt  of  court. 

[d]     Omcial  misbehavior  of  court  officers. 

The  cases  holding  that  attorneys  may  be  punished  by  contempt  proceed- 
ings for  failure  to  pay  over  or  account  to  clients  for  money  received  or  col- 
lected,! 5  and  for  insulting  an  examiner  with  abusive  language  upon  the 
street  and  fittempting  to  control  the  testimony  given.!  6  would  seem  to  come 
within   this  clause.       In   other   words   attorneys   are   court   officers.! 7      So 


obedience  of  the  order  for  taking  the 
depositions,  and  not  upon  the  theory 
of  misbehavior  in  the  court's  pres- 
ence. This  question  is  to  be  distin- 
guislied  from  the  question  of  privi- 
lege and  the  remedy  by  quashing  the 
service:  Atchison  v.  iMorris.  11  Fed. 
583.  11  Biss.  191:  Lamed  v.  Griffin. 
12  Fed.  502:  Parker  v.  Hotchkiss, 
1   Wall.  269,  Fed.  Cas.  No.   10.739. 

2See  United  States  v  Anon,  21  Fed. 
769. 

3 In   re   Brule.  71    Fed.  948. 

4 Ex  parte  McLeod,  120  Fed.  130. 

5ln  re  May,  2  Flip.  562,  1  Fed.  737. 

sUnited  States  v.  Devaughan,  3 
('ranch.  C.  C.  84.  Fed.  Cas.  No.  14, 
952. 

"Hillmon  v.  Mutual  L.  I.  Co.  79 
Fed.  749. 

sMorse  v.  Montana  0.  P.  Co.  105 
Fed.  337.  See  supra,  note[a].  How- 
ever, the  court  may  exclude  reporters 
from    the    courtroom :    United   States 

71 


V.   Holmes,   1   Wall.  Jr.    1.   Fed   Cas. 
No.  15.383. 

fTxjrd  V.  Veazie.  8  How.  254,  12 
L.  ed.  1070;  Cleveland  v.  Chamber- 
lain, 1  Black,  419,  17  L.  ed.  93. 

lOUnited  States  v.  Anon,  21  Fed. 
770:  Ex  parte  McLeod.  120  Fed.  141. 

iiOffutt  V.  Parrott,  1  Cranch,  C.  C. 
154,  Fed.  Cas.  No.  10.453. 

!2United  States  v.  Caton,  1  Cranch, 
C,  C.  150.  Fed.  Cas.  No.  14.758. 

!3ln  re  Allen  .  13  Blatchf.  271,  Fed. 
Cas.  No.  208:  In  re  Spever,  G  Nat. 
Bank  Reg.  255,  Fed.  Cas." No.  13,239. 

!5.Jefrnes  v.  Laurie,  27  Fed.  199; 
In  re  Paschal,  10  Wall.  491,  19  L. 
ed.  992.  But  an  order  which  in  ef- 
fect is  a  final  judgment  for  money 
cannot  be  enforced  bv  contempt:  In 
re  Atlantic  M.  Ins.  Co.  17  Nat.  Bank 
B.  Reg.  .3.118.  Fed.  Cas.  No.  629. 

leUnited  States  v.  Anon.  21  Fed. 
771. 

17  See  United  States  v.  Anon,  21 
2 


rrocedurej 


I'OWEK  TO  I'UNISH   CONTKMl'TS. 


S   807    [ei- 


deputy  marshals  may  be  attached  for  failure  to  pay  over  moneys  received 
where  there  is  no  disobedience  of  any  specific  order,  but  mere  misbehavior.i^ 
And  grand  jurors  as  court  officers  may  be  punished  by  contempt  for  mis- 
behavior,! 9  such  as  discussing  matters  with  persons  outside  the  grand  jury 
room. 2  0  It  is  also  held  that  jailers  may  be  punished  for  contempt,  for  in- 
flicting cruel  punishment; 2  and  that  a  bank  which  is  a  court  depository 
may  be  liable  for  contempt,  though  not  its  servants  or  agents.s  Resig- 
nation from  office  does  not  oust  jurisdiction  to  proceed  for  a  prior  con- 
tempts 

[ej     Disobedience  of  or  resistance  to  writ,  process,  order,  etc. 

These  are  the  most  frequent  occasions  for  contempt  proceedings.  It  is- 
contempt  for  witnesses  to  disobey  the  subpoena  summoning  them  to  appear 
before  a  court,6  or  before  a  master  or  commissioner,"  and  it  may  be  a  con- 
tempt to  refuse  to  answer  proper  questions. 8  But  failure  to  attend  may  be 
excused  bj'  showing  sickness; 9  and  an  interpreter  or  expert  will  not  be  com- 
mitted except  in  case  of  necessity.io  Contempt  proceedings  will  also  lie 
under  this  section  for  disobedience  by  court  oftieers  and  attorneys  of  ordcr-^ 
to  pay  costsii  or  to  pay  over  moneys  collected. 12  Orders  to  a  bankrupt  to 
surrender  up  property  may  be  enforced  by  contempt  proceedings,! s  and  a 
bankrupt  receiving  money  which  should  be  paid  to  the  assignee  is  guilty 
of  contempt.! 4  But  a  stipulation  though  made  in  open  court  is  not  an  order 
of  court  within  R.  S.  §  725.15  The  order  disobeyed  must  be  a  valid  one  aiid 
want  of  jurisdiction  will  entitle  a  committed  contemnor  to  release  on  habeas 
corpus.! 6  The  sureties  on  a  stipulation  in  admiralty  cannot  be  compelled 
to  pay  by  contempt  proceedings;!"  and  any  order  for  payment  of  money 


Fed.  771.  and  cases  cited;   Ex  parte 
Davis.  112  Fed.  139. 

isUnited  States  v.  :\rann.  2  Brock, 
n.  Fed.  Cas.  No.  15.716  :Bagley  v. 
Yates.  3  McLean,  46.5.  Fed.  Cas.' No. 
725:  The  Laurens.  Abb.  Adm.  508, 
Fed.  Cas.  No.  8.122. 

!9T"nited  States  v.  Kilpatrick,  16 
Fed.  765. 

20ln  re  Summerhaves.  70  Fed.  769. 
2ln    re    Birdsong,  'sO    Fed.    599.    4 
L.R.A.   628. 

^Southern  Dev.  Co.  v.  Houston,  etc. 
R.  R.  27  Fed.  344. 

■iThe  Laurens.  Abb.  Adm.  50S.  Fed. 
Cas.  No.  8.122. 

6V0SS  V.  Luke.  1  Cranch.  C.  C.  357, 
Fed.  Cas.  No.  17.014:  In  re  Ellerbe, 
4  McCrarv.  449.  13  Fed.  5.30:  Car- 
man V.  Emerson.  71  Fed.  264.  18  C. 
C.A.   38. 

Tin  re  SpofFord.  62  Fed.  443:  In  re 
■Tiidson.  3  Blatchf.  148.  Fed.  Cas.  No. 
7.563:  see  R.  S.  §  4073,  quoted  supra 
note    [a]. 


^Roberts  v.  \Yalley.  14  Fed.  167: 
United  States  v.  Caton.  1  Crancli. 
C.  C.  1.50  Fed.  Cas.  No.  14.758:  see 
Clark  v.  Wilson.  33  Fed.   331. 

9 Ex  parte  Beebes.  2  Wall.  Jr.  127. 
Fed.  Cas.  No.  1.220. 

iPin  re  Roelker.  1  Sprague,  276. 
Fed.  Cas.  No.  11.905. 

i!Boorart  v.  Electrical  S.  Co.  23 
Blatchf.   552,   27   Fed.   722. 

mLatter  of  Pitman,  1  Curt.  186. 
Fed.  Cas.  No.  11,184. 

i3ln  re  Purvine.  96  Fed.  194.  37 
C.  C.  A.  446:  Wayne  K.  Mills  v. 
Nugent.  104  Fed.  530:  In  re  Dresser. 
3  Nat.  Bank  Reg.  557,  Fed.  Cas.  No. 
4.077. 

i4Tn  re  Havden,  7  Nat.  Bank  Reg. 
192.  Fed.  Cas.'  No.  6.257. 

!-.Ex  parte  Buskirk.  72  Fed.  14,  18 
C.  C.  A.  410. 

i6Ex  parte  Fisk.  113  I'.  S.  713,  2S 
L.  ed.  1117.  5  Sup.  Ct.  Rep.  724. 

!7The  Bhniclie  Page,  16  Blatchf.  1, 
Fed.  Cas.  No.   1..-)24. 
13 


S    S(I7    [fj 


(iEXKUAL  AND  MISCELLAxXEOUS  PROVISIONS.        [Code  Fed. 


which  amounts  uuToly  to  a   money  judgment   cannot  be  enforced  by  con- 
tempt proceedings  in  States  where  imprisonment  for  debt  is  abolislied.is 

[f] — injunction  and  mandamus  orders  and  decrees. 

Disobedience  of  an  injunction  order  is  piuiisliable  as  contempt. ^  So  also 
is  disobedience  of  a  mandanuis.2  A  restraining  order  must  be  obeyed  in  its 
fntirety  until  modified. 3  It  is  no  less  a  contempt  that  the  disobedi'-nco  was 
the  result  of  negligence  and  not  deliberate. 4  It  is  necessary  that  th-  parties 
have  actual  notice  or  the  circumstances  be  such  as  to  charge  them  tliere- 
\vith;E>  and  if  there  is  doubt  upon  that  point  the  contempt  proceedings 
should  be  dismissed. 6  All  persons  having  knowledge  of  the  injunction  or- 
<ler  are  bound  by  it  and  punishable  for  disobedience  of  it,  though  they  are 
not  parties  to  the  suit;"  and  were  not  served  with  copy  thereof ;«  and 
though  a  party  is  served  as  one  of  unknown  defendantss  and  persons  who 
advise  aid  or  assist  in  the  acts  of  disobedience  are  equally  in  contempt. i" 
o  it  is  a  violation  of  an  injunction  against  a  partnership  for  the  members 
individually  to  disobey  in  their  capacity  as  servants  of  others. n 

Contempt  proceedings  for  violating  an  injunction  may  be  defected  by 
showing  that  the  court  was  without  jurisdiction  to  grant  the  injunction,!  s 
and  the  injunction  was  unwarranted  by  law;i4  but  not  by  showing  mere 
i-rror  in  the  proceeding.  Immateriality  of  the  evidence  is  no  defense  for  con- 
tempt proceedings  on  refusal  to  testify  before  a  special  examiner.! 5  If 
the  order  was  not  actually  in  existence  its  subsequent  execution  nunc  pro 
tunc  cannot  make  acts  already  committed  piuiishable  as  contempt.! 6 


isin  re  Atlantic  Ins.  Co.  17  Nat. 
Hank  Reg.  368.  Fed.  Cas.  No.  629. 
Contempt  proceedings  are  allowable 
for  attorney's  failure  to  account: 
•Jeffries  v.  Laurie.  27  Fed.  199. 

iln  re  North  B.  G.  Co.  27  Fed.  795; 
T'nited  States  v.  Lancaster.  44  Fed. 
SS5;  In  re  Debs.  I5S  T'.  S.  504.  39 
L.  ed.  1092.  15  Sup.  Ct.  Rep.  900: 
I'nited  States  v.  Debs.  64  Fed.  764. 

2 In  re  Delgado.  140  V.  S.  586.  85 
L.  ed.  579,  11  Sup.  Ct.  Rep.  874:  In 
re  Nevitt,  117  Fed.  448.  .54  C.  C.  A. 
622:   In  re  Copenliaven.  .54  Fed.  660. 

sPokegama.  etc.  Co.  v.  Klamath, 
otc.  Co.  86  Fed.  5.38;  Uliman  v.  Ritter. 
72  Fed.   1000. 

4lndiana])()lis  W.  Co.  v.  American 
S.  Co.  75  Fed.  972. 

sSickels  v.  Borden.  4  Blatchf.  14. 
Fed.  Cas.  No.   12.833. 

eWhipple  v.  Hutchinson,  4  Blatchf. 
190.   Fed.   Cas.  No.   17.517. 

Tin  re  Reese,  107  Fed.  945,  47  C. 
<\  A.  87. 

8Ex  parte  Richards,  117  Fed.  658: 


Ex  parte  Lennon,  64  Fed.  320,  12  C. 
C.    A.    134. 

"United  States  v.  Agler.  62  Fed. 
824.  But  parties  should  be  served: 
In  re  Carv.  10  Fed.  626. 

loBate'R.  Co.  v.  Gillett.  .30  Fed. 
683 :  Societe.  etc.  v.  Western  D.  Co. 
42  Fed.  96:  United  States  v.  Debs. 
64  Fed.  738.  But  legal  advice  in 
good  faith  mav  not  be  contempt:  In 
re  Watts.  190'u.  S.  1.  47  L.  ed.  933. 
23  Sup.  Ct.  Bep.  718. 

"Dadinian  v.  Cullian.  79  Fed. 
784. 

isUnited  States  v.  Debs.  64  Fed. 
739:  Elliott  v.  Pcirsol.  1  Pet.  340,  7 
L.  ed.  170. 

i4Wordpn  v.  Searles.  121  V.  S.  14. 
.30  L.  ed.  853.  7  Sup.  Ct.  Pep.  814. 

ir.Xelson  v.  United  States.  201  U. 
S.  92.  .50  L.  ed.  673,  36  Sup.  Ct. 
Rep.  .358. 

^fiEx  parte  Buskirk.  72  Fed.  14.  18 
C.  C.  A.  410:  United  States  v.  Day. 
6  Am.  L.  Reg.  632,  Fed.  Cas.  No. 
14.9.34. 


714 


j'locedurej  POWER  TO  I'lNISH  CONTEMPTS.  8   807    [h] 

{gj     — in  receivership  matters  ana  affecting  property  in  custody. 

Intertereiite  witli  property  in  custody  or  the  officers  in  control  thereof 
id  puiiishabfe  as  contempt. is  It  is  disobedience  of  the  process  under  which 
ii  was  taken. IS*  This  rule  is  frequently  asserted  and  enforced  in  receiver- 
ship case.s,2  0  and  especially  in  railroad  receiverships. i  The  bringing  of  an 
action  against  a  receiver  without  leave, 2  or  the  levying  upon  pi-operty 
in  custody-  by  process  from  another  court,  constitute  contempt.3  Interfer- 
ence with  the  dominion  of  a  bankruptcy  court  over  the  bankrupt  estate  by 
ju-oceedings  in  a  State  court  is  a  contempt. *  But  where  the  custody  is 
not  actual  but  only  constructive,  it  is  not  always  a  contempt  for  the  own- 
er to  remove  it.^ 

[hj     Procedure — criminal  nature  of  proceeding. 

Ditierent  modes  of  procedure  have  been  adopted  for  different  species  of 
<ontempt.  From  this  viewpoint  contempts  have  been  divided  by  some  au- 
thorities into  those  committed  under  the  eye  or  within  the  view  of  the 
^-•ourt,"  and  those  arising  from  acts  committed  elsewhere.  Other  authori- 
ties distinguish  between  contempts  which  have  disturbed  the  peace  or 
otherwise  offended  against  the  dignity  of  the  court  and  those  which  have 
merely  injured  the  rights  of  parties  litigant,  i.  e.,  between  civil  or  remedial 
and  criminal  or  punitive  contempts.?  The  distinction  between  civil  or 
remedial  .and  criminal  or  punitive  contempts,  has  most  frequently  been 
drawn  in  arguing  the  right  to  review,  to  a  jury  trial,  and  questions  respect- 
ing punishment  and  pardon.  Notwithstanding  decisions  elsewhere  to  the 
contrarj'9  the  Supreae  Court  has  uniformly  declared  that  contempt  pro- 
ceedings are  always  criminal  in  character,  at  least  for  purposes  of  appeal.io 
They  are  however  sui  generis, n  and  there  is  no  right  to  a  jury  trial  even 

isin  re  Higiiins.  27  Fed.  444.  Cas.    Xo.    13,:]30:    In   re  Tift.   11    Fed. 

i^Sabin  v.   Fogarty,  70  Fed.  483.  4(v!. 

20\\'iswall    v.    Sampson,    14    How.  ''L'nited   States    v.    Seelev.   27    Fed. 

■t'M.  14  L,  ed.  322;  In  re  Tvler.  140  V.  Cas.  Xo.   l(V248a. 

S.  181,  37  L.  ed.  69.5,  13  Siip.  Ct.  Rep.  :Fx  parte  Terrv.  128  U.  S.  309,  32 

789:  Cumbel  v.  Pitkin.  124  U.  S.  131,  L,   ed.   410,  9   Sup.   Ct.   Rep.   77;    see 

31  L.  ed.  374,  8  Sup.  Ct.  Rep.  379.  Bessette  v.  Conkev  Co.  194  U.  S.  329. 

iSecor  V.  Toledo,  etc.  R.  R.  7  Biss.  48  L.  ed.  1002.  24  Sup.  Ct.  Rep.  GG.j. 

-513.    Fed.     Cas.    No.     12.(30.5;    United  8See  United  States  v.  Anonymous. 

States   V.    Kane.   23   Fed.   748;    In    re  21    Fed.   765;    In   re  Nevitt.   lU   Fed, 

Doi. little.  23   Fed.  o44:    In  re  .^cker,  448,  54  C.  C.  A.  622. 

116   Fed.  290,  King  v.  Ohio,  etc.  R.  R.  9See   Bovd    v.    Gluoklich,    116    Fed. 

7    Biss.    529,     Fed.     Cas.     No.    7.800;  142,  53  C.  C.  A.  451 ;  Indianapolis  \V. 

Thomas  v.   Cincinnati,  etc.  R.   R.  62  Co.  v.  American  S.  Co.  75  Fed.  975; 

Fed.  803.  In  re  Acker,  66  Fed.  292. 

^Thomjison     v.    Scott.    4   Dill.  .508,  loEx   parte  Kearney.  7  Wheat.  42, 

Fed.  Cas.  No.   13.975.  5    L.    ed.    392;    New   Orleans   v.    New 

3ln   re  Tvler.   149  U.  S.   164.  37   L.  York.  etc.  Co.  20  Wall.  392.  22  L.  ed. 

ed.    689.    1.3    Sup.    Ct.    Rep.    785:    E.\  ,3.57:   O'Neil  v.  United  States,   190  U. 

parte  Huidekojjer.  55   Fed.  709.  S.  36.  47  T.  ed.  945.  23  Sup.  Ct.  Rep. 

4ln     re    Litchfield.     13     Fed.     863;  776;    Bessette    v.    Conkey.    194    U.    S. 

Phelps   v.   Sellick.   S   Xat.   Bank   Reg.  -335.  48  L.  ed.   1005.  24  Sup.  Ct.  Rep. 

390.     Fed.     Cas.     Xo.    11.079;    In    re  HVm. 

Steadman.  8  Xat.  Bank  Reg.  319,  Fe.l.  nO'Xeal   v.   United   States,    190  U. 

715 


§   SOT    [h]  GENERAL  AND  MISCELLANEOUS  i'KOVlSlONS.        [Code   FpiL 

when  arising  in  common  law  caiises.i^  The  classification  of  contompt  in- 
to those  committed  under  the  eye  of  the  court  and  those  committed  else- 
where has  reference  to  the  necessity  for  any  hearing  or  inquiry  into  the 
fact  before  adjudging  the  contempt.  If  committed  under  the  eye  of  the- 
court  it  ina\^  punisli  without  the  formalities  and  inquiry  proper  in  tjthcr 
cases;  13  otherwise  there  must  be  some  proceeding  taken  wliicli  will  a]) 
prise  the  party  of  the  charge  against  him  and  give  him  a  reasonable  op- 
portunity for  explanation,  denial  or  other  defense.i*  The  court  has  con- 
siderable latitude  in  its  choice  of  a  mode  of  procedure.  Interrogatories 
and  citation  or  information  are  not  absolutely  essential. is  A  petition 
duly  verified,  or  an  altidavit,  setting  forth  specifically  the  acts  or  omis- 
sions constituting  the  contempt  is  and  praying  either  for  an  attachment  of 
the  contemner,  or  rule  upon  him  to  show  cause  at  a  given  time  why  ho 
should  not  be  punished  for  contempt,  is  proper  mode  of  proceeding.i"  So 
an  information  might  be  convenient  and  proper  where  the  contempt  Avas  not 
by  a  party  to  a  cause  and  was  rather  criminal  than  civil  in  its  essent^ial  as- 
pects.is  It  is  usual  and  proper  to  entitle  a  contempt  proceeding  arising 
out  of  disobedience  by  a  party  to  a  cause,  of  an  order,  writ  or  process 
therein,  especially  Avhere  merely  civil  and  remedial  in  character,  as  in  the 
principal  suit. is  But  where  the  contempt  is  not  incidental  to  and  does 
not  arise  out  of  proceedings  or  orders  in  a  cause,  and  where  it  is  by  one 
not  a  party, 2  0  and  especially  where  the  criminal  aspects  of  the  act  done 
are  dominant,  it  is  proper  to  entitle  the  proceeding  in  the  name  of  the 
United  States i  upon  the  relation  of  petitioner,  against  the  contemnor.2 
Where  the  contempt  proceeding  is  merely  civil  and  remedial  the  injured 
pai'ty  is  the  proper  complainant  against  the  alleged  contemnor.s  But  where 
the  act  or  omission  has  criminal  aspects  a  party  injured  or  the  United 
State  through  its  law  officers  may  initiate  the  proceeding.4 

S.  36.  47  L.  ed.  945,  23  Sup.  Ct.  Rep.  leParkhurst  v.  Kinsman.  2  Blatchf. 

776;    Bessette   v.    Conkey,   194   U.   S.  76.  Fed.  Cas.  No.  10.750. 

;l.1o.  48  L.  ed.  1005,  24  Sup.  Ct.  Eep.  i7Anierican  C.  Co.  v.  Jacksonville, 

(105.  etc.  Ry.  52  Fed.  938. 

i2Ex   parte  Terry.   128  U.   S.   289,  ^^^^p    United    States    v.  Debs.   G4 

32  L.  ed.  405.  9  Sup.  Ct.  Rep.  77  :  Ex  ^e^^-  ''^^-             „                    ,       , 

parte   Tillinghast.    4   Pet.    108.   7    L.  "Fischer  v.  Hayes,  19  Blatchf.  13. 

ed.  798;  Eilenbecker  v.  Plymouth  Co.  ^  ^^^d.   ,0. 

Dist.  Ct.  134  U.  S.  36,  33*  L.  ed.  803.  20Erwm  v.  United  States.  37  Fed. 

10  Sup.  Ct.  Rep.  426;  In  re  Debs,  158  ■t"f>-  2  L.R.A.  229:  Cioodrich  v.  United 

U.  S.  564.  39  L.  ed.  1092,  15  Sup.  Ct.  States.  42  Fed.   392. 

Ren    900  iFanshawe  v.    Tracv,    4  Biss.    490. 

i3Ex  parte  Terrv.  128  U.  S.  289.  ff-'''%^^:j;^f\t^'''^,f"%"' 
32  L.  ed.  405.  9  Sup.  Ct.  Rep.  77;  Ex  ^l"^^/'  Wa^^-  ^-  C.  134  Fed  Cas  Iso 
parte  bavin,  131  US.  267,  33  L.  ed.     «/f '   J-V""!^   T' r   '^  r-^^i'm     t 

150.  9  Sup.  Ct.  Rep.  699.  ^^^^^IT-  f '^•/,^;^  p^^^^"  ^j^o^"   ,^i.\" 

^  ^  re   Lllerbe,  4  ^IcCrarv,  449.    13    hi'd. 

i4Ex   parte   Savin.    131   U.    S.   278,    53Q 

3.3   L.   ed.    153.   154,   9   Sup.   Ct.  Rep.  2Fischpr  v.  IIa\-¥s.  19  Blatchf.  13.6 

69.9.  Yo<].  71. 

i5See   Ex   parte   Savin.   131    U.    S.  ^Secor  v.  Sinde.ton.  35  Fed.  376. 

278,  33  L.   ed.   153,   154,  9    Sup.   Ct.  4 See  United  States  v.  Debs,  64  Fed. 

R«p.  699.  725. 

716 


FiueedureJ  POWEK    TO    PUNISH    CONTEMPTS.  §   807    [i] 

[i]     — hearing,  punishment  and  appeal. 

The  court  is  bound  by  no  leelinical  rules  in  the  hearing  of  contempt 
proceedings.  It  may  ascertain  the  facts  in  any  fair  mode  of  procedure, T 
and  without  the  intervention  of  a  jury.s  Affidavits  are  admissible. 9  In 
cases  of  criminal  contempt  it  it  the  rule  of  common  law  courts,  apparently 
prevailing  in  the  Federal  courts  in  common  law  causes,io  that  the  con- 
tenmer's  sworn  answer  denying  the  charge  must  be  taken  as  true.  In 
equity  and  bankruptcy  this  rule  does  not  obtainjH  though  it  is  necessary 
to  prove  the  accused's  guilt  clearly  and  to  the  satisfaction  of  the  court. 12 

The  court  may  punish  by  fine  or  imprisonment,  but  not  by  disbarment.  1 3 
In  case  of  a  corporation  in  contempt,  the  punishment  may  be  intlicted 
either  by  way  of  fine  on  the  corporation,  or  fine  or  imprisonment  of  the 
guilty  agent. I'l  The  court  has  power  on  inflicting  a  fine  to  order  the  de- 
fendant to  stand  committed  until  it  is  paid.is  It  has  been  held  that  the 
■court  punisliing  a  contempt  may  modify,  suspend,  or  relieve  against  the 
penalty  imposed; is  but  there  is  a  difference  of  opinion  as  to  the  power  of 
the  executive  to  grant  relief  under  the  pardoning  power.ie 

It  has  been  uniformly  held  that  a  judgment  in  contempt  proceedings  is 
not  reviewable  in  the  Supreme  Court  either  by  appeal  or  error.is  though 
appeal  lies  from  a  decision  in  habeas  corpus  in  a  contempt  case.  1  "J  But 
there  is  a  right  of  review  in  the  circuit  court  of  appeals,  and  when  the  con- 
temnor  is  not  a  party  to  the  suit  in  which  the  contempt  occurs  and  the 
contempt  judgment  cannot  be  regarded  as  interlocutory  to  any  other  cause, 
it  is  a  final  reviewable  judgment. 20  Error  and  not  appeal  is  the  proper 
mode  of  review.  1  The  Supreme  Court  may,  however,  review  by  writ  of 
error  a  circuit  court's  judgment  for  contempt,  where  questions  arising  un- 
der the  Constfltution  are  involved. 2 

Tin  re  Savin,  131  I".  S.  27S.  33  L.  Fed.    Cas.   Xo.   9.911;    In    re   Mason, 

•ed.  153.  1.54.  9  Sup.  Ct.  Rep.  699.  43  Fed.  515;   In  re  Xevitt,  117  Fed. 

sSupra.  note[h].  448.  54  C.    C.   A.   622. 

9ln  re  Judson,  3  Blatchf.  148.  Fed.  isEx  parte  Kearnev.  7  Wheat.  38.  5 

Cas.  Xo.  7.563.  L.  ed.  391  ;  Xew  Orleans  v.  Xew  York. 

loBoyd  V.  Gucklich.   116  Fed.    141.  etc.  Co.  20  Wall.  387.  22  L.  ed.  354: 

53  C.  C.  A.  451:    In  re  May.  2  Flip.  Haves  v.   Fischer,   102  U.  S.   121,  26 

562,    I    Fed.    743;     United    States    v.  L.  ed.   95;    Ex  parte  Fisk.  113  U.  S. 

Dodge.  2  Gall.  31.3,  Fed.  Cas.  Xo.  14,-  713,  28  L.  ed.   1117.  5  Sup.   Ct.  Rep. 

975;   matter  of  Pitman.  1   Curt.  186,  724;  Bessette  v.  W.  B.  Conkey  Co.  194 

Fed.  Cas.  Xo.  11.184.  U.  S.  335.  48  L.  ed.  1004,  24"  Sup.  Ct. 

iiBoyd   V.   Cucklicli.   116   Fed.   141.  Rep.  665. 

53  C.  C.  A.  451  ;  See  I'nited  States  v.  ifin  re  Debs.  158  U.  S.  564.  39  L. 

Anon,  21  Fed.  767.  708.  discussing  the  ed.  1092,  15  Sup.  Ct.  Rep.  900:  In  re 

authorities.  Savin,   131    U.   S.   273.  33  L.  ed.   152, 

i^rnited    States   v.    Atchison,   etc.  9  Sup.  Ct.  Rep.  699;  Ex  parte  Kear- 

R.   R.   16   Fed.   853;   In   re  Judson.  3  nev.  7  Wheat.  38.  5  L.  ed.  391. 

Blatchf.    148.    Fed.    Cas.    Xo.    7..5()3:  2oBessette  v.  Conkev  Co.  194  V.  S. 

Sabin  v.  Fogarty,  70  Fed.  483.  324.  48  L.  ed.  997.  24  Sup.   Ct.  Rep. 

i^Supra.  note   [b]  665. 

I'tT'nited    States    v.   Menipliis.    etc.  ilhid:  Bessette  v.  Conkev.  133  Feil. 

R.  R.  6  Fed.  237.  165.  66  C.  C.  A.  291. 

1  "Fischer  v.  Haves.  19  Blatchf.  13,  2See   Nelson  v.  United  States.  201 

C  Fed.  72.               '  U.  S.   98.  .10  L.  ed.  674.  20  Sup.  Ct. 

leSee   In   re   ilullee.  7  Blatchf.  23.  Hep.  358. 

717 


§808  GENERAL    AND    MISCELLANEOUS  '  PROVISIONS.       [Code  Fed. 

§  808.     Contempt  power  of  Court  of  Claims. 

The  said  court  [i.  c.  the  Cmirt  of  Chiiius]      .      .     .     may  punish 
for  contempt  in  tlie  manner  prescribed  by  the  common  law. 
Part  of  R.  S.  §  1070,  U.  S.  Conip.  Stat.  1901,  p.  740. 

§  809.     Bankruptcy  courts'  power  to  punish  for  contempt. 

Tlie  courts  of  bankruptcy  as  hereinbefore  defined,  viz..  th(>  dis- 
trict courts  of  the  United  States  in  the  several  States,  tlie  Supreme 
Court  of  the  District  of  Columbia,  the  district  courts  of  the  several 
Territories,  and  the  United  States  courts  in  the  Indian  Territory, 
and  the  District  of  Alaska  .  .  .  are  hereby  invested,  within 
theii-  respective  territorial  limits  .  .  .  with  such  jui'isdiction 
at  law  or  in  equity  as  will  enal)le  them  .  .  .  to  .  .  .  ^'-^ 
enforce  obedience  by  bankrupts,  officers  and  other  persons  to  all  law- 
ful oi'ders.  by  fine  or  imprisonment  or  fine  and  imprisonment  .  .  .^"^ 
punish  persons  for  contempts  committed  before  referees. 

Part   of  §   2  act  .July   1,   1S98,  c.  541,  30  Stat.  545,  546,   U.  S.  Comp. 
Stat.   inoi.  p.  :M20. 

§  810.     Contempts  before  bankruptcy  referees. 

A  person  shall  not,  in  proceedings  before  a  referee.^  disobey  or 
resist  anv  lawful  order,  process  or  writ ;-  misbehavior  during  a  hear- 
ing or  so  near  the  place  thereof  as  to  obstruct  the  same  :•"  neglect 
to  produce,  after  having  been  ordered  to  do  so,  any  pertinent  docu- 
ment, 01"*  refuse  to  appear  after  having  been  sul)])oe]Uied.  or,  upon 
appearing,  refuse  to  take  the  oath  as  a  witness,  or,  after  liaving 
taken  the  oath,  refuse  to  be  examined  according  to  law:  Provided, 
tliat  no  person  shall  be  required  to  attend  as  a  witness  before  a  ref- 
eree at  a  place  outside  of  tlie  State  of  liis  residence,  and  more  than 
one  hundred  miles  from  such  place  of  residence,  and  only  in  ca^e  his 
lawful  mileage  and  fee  for  one  day's  attendance,  shall  be  first  paid 
or  tendered  to  him.    The  referee  shall  certify  the  fact^  to  the  judge, 
if  any  person  shall  do  any  of  the  things  forbitlden  in  this  section. 
The  judge  shall  thereupon,  in  a  summary  manner,  hear  the  evidence 
as  to  the  acts  complained  of.  and,  if  it  is  such  as  to  warrant  him  in 
so  doing,  punish  such  person  in  the  same  manner  and  to  the  same 
extent  as  for  a  contempt  committed  before  the  court  of  bankruptcv, 
or  commit  such  person  upon  the  same  conditions  as  if  the  doing  of 
tlie  forbidden  act  had  occurred  with  reference  to  the  process  of,  or 
in  the  presence  of,  the  court. 

718 


Procedure]    FORMAL  DEFECTS  OF    PROCEDURE   DISREGARDED.  §   8i:j 

§  41  ot  act  .hily.  ],  189S,  f.  541,  80  Stat.  550,  U.  S.  Cornp.  Stat.  1901, 
p.  3437. 
Tliis  provision  is  declarator}'  in  its  nature  and  compiises  merely  the  rec- 
ognized subjects  for  the  exercise  of  the  contempt  power.4  The  punishment 
must  be  by  the  court  and  must  not  be  left  to  the  discretion  of  the  referee. 5 
Contempt  proceedings  have  been  resorted  to  in  enforcing  orders  to  a  bank- 
rupt to  surrender  ])roperty,6  or  similar  orders  directed  to  third  persons." 

§  811.     Contempt  proceeding  against  defaulting  garnishee. 

Jf  any  person  summoned  as  garnishee,  as  aforesaid,  [i.  e.  in  a  suit 
by  the  United  States  against  a  corporation]  fails  to  appear  at  the 
term  of  the  court  to  wliich  he  is  summoned,  he  shall  be  subject  to 
iittacliment  for  contempt  of  the  court. 

R.  S.  §  !)37,  U.  S.  Comp.  Stat.  1901,  p.  690. 

§  812.     Contempt  of  order  to  appear  before  Commerce  Commis- 
sion. 

Any  failure  to  obey  sucli  order  of  the  court  [i.  e.  an  order  issued 
by  the  circuit  court  requiring  a  refusing  common  carrier  to  appear 
before  the  Interstate  Commerce  Commission  and  produce  books, 
etc.]  may  be  punished  by  such  court  as  a  contempt  thereof. 

Part  of  §  12,  act  Feb.  4,  1887,  c.  104,  24  Stat.  383,  as  amended  Mar.  2, 
1889.  and  Feb.  10,  1891,  V.  S.  Comp.  Stat.  1901,  p.  3162. 

The  lefusal  to  answer  the  summons  of  the  Commission  is  not  a  con- 
tempt because  it  is  a  mere  subordinate  administrative  body;  an  order  of 
court   and  disoljedience  thereto,  are  essential. 9 

i^  813.  Formal  defects  of  procedure  disregarded — amendments 
permitted. 
jVO  summons,  writ,  declaration, '^'^^  return,  process, ^^^^  judgment,^'^ 
or  other  proceedings'^*'^'^'^^  in  civil  causes,  in  any  court  of  the  United 
States, f""]  shall  be  abated,  arrested,  quashed  or  reversed^^^'^"^  for 
any  defect  or  want  of  form  ;^^^^  but  such  court  shall  proceed  and 
give  judgment  according  as  tbe  right  of  the  cause  and  matter  in 
biw  shall  appear  to  it,  witliout  regarding  any  such  defect,  or  want 
of  form,  except  those  M-hich,  in  cases  of  demurrer,  tlie  party  de- 

4Bovd    V.    Gucklicli.    lit)    Fed.    135,  "Mueller   v.    Nu^fnt.    181   V.    S.    1, 

53  C.  C.  A.  451.  46  L.  od.  405.  22  Sup.  (^t.  Rep.  209. 

sSmith    V.    Belford.    10(!    Fed.    658.  slnterstate  Com.  Com.  v.   Brimsoii, 

45  C.  C.  A.  526.  154  U.  S.  447.  38  L.  ed.  1047,  14  Sup, 

6Tn  re  Purvine.  96  Fed.   194.  37  C.  Ot.  Rep.  1125. 
C.  A.  446 :  In  re  Levin,  113  Fed.  498. 

719 


§   813   [a]        GENERAL    AND    MISCELLANEOUS    PROVISIONS.      [Code   FoJ. 

murring  .specially  sets  down  ^^^  together  with  his  deinurrer,  as  the 
cause  thereof;  and  such  court  shall  augend  every  such  defect  and 
want  of  form,  other  than  those  which  the  party  demurring  so  ex- 
presses; and  may  at  any  time^f°^  permit  either  of  the  parties  to 
amend  any  defect  in  the  process"^*^^  or  pleadings/^^""^"^  upon  such 
conditJons^P^  as  it  shall,  in  its  discretion'^'i^  and  by  its  rules,  j.re- 
scribeJ^^-™ 

R.  S.  §  !)o4,  U.  S.  Coiiip.  Stat.  1901,  p.  000. 

|a]     History  and  general  construction  of  provision. 

The  foregoing  provision  was  originally  section  thirty-two  of  the  judici- 
ary act  of  1789.12  In  1872  a  further  enactment  was  passed,  respecting  the 
amendment  of  process  in  the  circuit  and  district  courts,  and  that  pro- 
vision is  now  R.  S.  §  948.13  R.  S.  §  954  is  similar  to  the  ancient  English 
statute  of  Jeofails,! 4  and  the  Supreme  Court  has  in  some  cases  declared 
that  it  is  no  broader  than  that  statute, is  although  in  others, 1 6  and  in  the 
opinions  of  justices  of  that  court  sitting  on  circuit, 1 7  there  has  been  a 
disposition  towards  great  liberality  in  its  construction  and  application.! 8 
Differences  of  opinion  upon  this  point  have  resulted  in  part  from  the  in- 
fluence of  the  local  state  practice  in  individual  cases,  and  in  part  from  the 
verbal  differences  between  the  first  and  the  last  portions  of  the  section. 
While  the  first  declaration  that  defects  of  form  shall  not  effect  a  dismissal 
or  reversal  applies  to  all  the  proceedings  in  a  cause  and  to  all  stages  there- 
of including  appeal,  the  final  clause  permitting  amendment  of  "process  or 
pleadings"  upon  such  conditions  as  the  court  shall  prescribe,  permits  very 
broad  powers  of  amendment,! 9  broader  than  were  allowable  under  the 
English  statute,  but  restricted  to  "process  or  pleadings,"  thus  excluding 
verdict  judgment  and  proceedings  on  appeal,  and  inferentially  contemplat- 
ing only  amendments  before  judgment  and  by  the  trial  court  while  the 
case  is  in  fieri. 20     There  is  plainly  a  difference  in  the  extent  of  the  powers 

!2Act  Sept.  24,  1789.  c.  20.  §  32,  1  509;   Dancel  v.  United  S.  M.  Co.  120 

Stat.  91.  Fed.    839;    Bowden    v.    Burnham,    59 

isSee  post,  §  840.  Fed.   752.  8   C.   C.   A.  248;   Smith  v. 

1432  Hen.  VIII.  Railwav  Co.  5G  Fed.  458,  5  C.  C.  A. 

isGarland   v.    Davis,   4   How.    131,  557 ;  McDonald  v.  Nebraska.  101  Fed. 

11  L.  ed.  907;  Phillips,  etc.  Con.  Co.  v.  177,  41  C.  C.  A.  278  and  cases  cited; 
Sevmour,  91  U.  S.  656,  23  L.  ed.  344,  Gregg  v.  Gier.  4  McLean,  208.  Fed. 
345.  Cas^Xo.  5,799. 

isMurphy  v.  Stewart,  2  How.  263,  i9See  Smith  v.  Allvn,  1  Paine.  453, 

281.  11  L.  ed.  261;  Parks  v.  Turner,  Fed.  Cas.    No.    13,000;      Comings  v. 

12  How.  39,  13  L.  ed.  883.  The  Ida  Stockdale,  22  Pitt.  L.  J.  9. 
i-iSee   Smith   v.   Jackson.    1    Paine.  Fed.  Cas.  No.  3,052. 

486,  Fed.  Cas.  No.  13.065;   Erstein  v.         20Comings    v.    The   Ida    Stockdale, 

Rothschild,    22    Fed.    61;    see    quota-  22  Pitt.  L.  J.  9,  Fed.  Cas.  No.  3,052; 

tion  from  Miller.  J.  in  McDonald  v.  Smith   v.  Jackson,  1  Paine,  486.  Fed. 

Nebraskii,   101   Fed.   177,  41   C.  C.  A.  Cas.    No.    13,065;    Smith    v.   Allvn,    1 

278;     Tobey   v.   Claflin,   3   Sum.   379,  Paine,  453,  Fed.  Cas.  No.  IS.OOO';  but 

Fed.  Cas.  No.  14,066.  see  Anon.   1  Gall.  22,  Fed.   Cas.  No. 

isSee   also   In   re   Glass,   119    Fed.  444. 

720 


I'rocediue]    FORMAL  DEFECTS  OF  I'UOCEDUKE  DISUEGAUDED     §   S13   [b] 

granted  by  this  section  to  trial  courts  prior  to  judgment  over  "process 
aiid  pleading,"  and  those  granted  to  appellate  courts  over  the  proceedings 
as  a  whole.  The  section  applies  in  equity, i  bankruptcy 2  and  admiralty 3 
and  to  suits  on  forfeitures  under  the  revenue  laws,'*  as  well  as  in  common 
law  causes.    It  has  also  been  held  applicable  to  a  contempt  proceeding.5 

[bj     Applicability  of  State  laws  as  to  amendment. 

In  common  law  causes  R.  S.  §  &14s  adopting  State  forms  and  modes  of 
procedure,  must  needs  be  considered  upon  the  power  of  amendment,  as  well 
as  R.  S.  §  954.9  Some  cases  have  been  held  that  R.  S.  §  914  in  no  way  lim- 
its this  section,! 0  and  others  that  the  state  laws  as  to  amendment  are  adopted 
for  Federal  common  law  causes  by  R.  S.  §  914.1 1  It  has  also  been  held  that 
a  State  law  enlarging  the  right  of  amendment  would  be  applied,  but  not  one 
less  liberal  than  the  Federal  enactments.12  it  would  be  difficult  to  justify 
an  application  of  a  State  law  in  any  case  where  R.  S.  §  954  or  any  other 
Federal  statutes  was  mandatory.is  Nor  can  it  be  denied  that  the  right  of 
Federal  courts  to  allow  amendments  exists  by  virtue  of  R.  S.  §  954,  and 
is  not  dependent  on  State  statutes. 1^  But  where  the  section  confers  dis- 
cretion or  a  power  to  make  provision  by  rule,  it  would  clearly  be  a  proper 
exercise  of  that  discretion  to  conform  to  and  apply  the  local  law.is 
R.  S.  §  @14  only  conforms  the  Federal  to  the  State  practice  "as  near  as 
may  be"  and  itself  confers  a  discretion  upon  Federal  courts  to  decline  to 
follow  State  provisions.  Hence  while  it  would  generally  be  proper  discre- 
tion to  follow   the  State  law   as  to  amendments,  it  might   sometimes  be 


iDancel  v.  United  S.  M.  Co.  120 
Fed.    839. 

2lnfra,  note[e]. 

sReed  v.  Cowlev.  1  Nat.  Bank  R. 
516,  Fed.  Cas.  No.  11.644;  In  re  Glass, 
119  Fed.   509. 

■ilnfra,  note[e]. 

sUnited  States  v.  Distilled  Spirits, 
1  Abb.  573,  Fed.  Cas.  No.  15.943; 
Friedenstein  v.  United  States,  125  U. 
S.  224.  31  L.  ed.  736,  8  Sup.  Ct.  Rep. 
838:  In  re  Chadwick.  1  I>ow.  439, 
Fed.  Cas.  No.  2.570. 

«Po3t.  §  900. 

flVan  Dorcn  v.  Pennsvlvania  R.  R. 
93  Fed.  261.  35  C.  C.  A.'2S2. 

loKent  v.  Bav  S.  Ci.  Co.  93  Fed. 
887. 

iiRosenbach  v.  Drevfuss,  1  Fed. 
393;  Mack  v.  Porter."  72  Fed.  243. 
18  C.  C.  A.  .527:  Chamberlain  v. 
Mensing.  51  Fed.  512.  See  Atlantic, 
etc.  R.  R.  V.  Laird,  164  U.  S.  393,  41 
L.  ed.  488.  17  Sup.  Ct.  Rep.  120; 
West  v.  ^^mith.  101  U.  S.  265.  206. 
25  L.  ed.  810;  Liverpool,  etc.  Co.  v. 
Cunther.  116  U.  S.  113.  29  L.  ed.  579. 
r>  Sup.  Ct.  Rep.  .306:   and  Henderson 


V.  Louisville,  etc.  R.  R.  123  U.  S.  61. 
31  Led.  92,  8  Sup.  Ct.  Rep.  60,  where 
the  Supreme  Court  applied  the  State 
law,  though  without  considering  the 
question ;  to  same  effect  see  Nuss- 
baum  V.  Northern  Ins.  Co.  40  Fed. 
337. 

i2Norton  v.  Dover.   14  Fed.   lOi). 

isSee  Dwight  v.  Merritt,  18 
Blatch'f.  305.  4  Fed.  614. 

i4Mexican  C.  R.  R.  v.  Duthie.  189 
U.  S.  76,  47  L.  ed.  715.  23  Sup.  Ct. 
Rep.  610;  Bowden  v.  Burnham.  59 
Fed.  752.  8  C.  C.  .-x.  248;  Oliver  v. 
Ravmond.  108  Fed.  727;  :McDonald  v. 
Nebraska.  101  Fed.  171.  41  C.  C.  A. 
278. 

ir.Elting  v.  Campbell.  5  Blatchf. 
183.  Fed.  Cas.  No.  4.422;  see  also 
Phillips  Co.  V.  Se^^nour.  91  U.  S.  640. 
23  L.  ed.  341  :  Post  v.  Wise,  101  Fed. 
204:  Hodges  v.  Kimball.  91  Fed.  S45. 
34  C.  C.  A.  103;  United  Stiites  Bmk 
V.  Lvon  Co.  48  Fed.  632:  Norton  v. 
Dover.  14  Fed.  106:  Clark  v.  Sohier, 
1  \\'ood.  &  M.  368.  Fed.  Cas.  No. 
2.S35:  Miller  v.  Cag.-s,  4  McLean, 
436.  Fed.  Cas.  No.  9.571  :  Wliitaker  v. 


Fed.  Proc— 40. 


721 


§  S13   [bb]      GENERAL   AND  MISCELLANEOUS   PROVISIONS.        [Code  Fed. 

equally  proper  to  decline  to  do  so.i6  Thus  it  is  held  that  the  question  of 
amending  the  return  of  substituted  service  of  process  is  one  of  the  power 
of  the  court  and   State  decisions  are  not  binding.! 7 

[bb]     Defect  of  form  defined. 

In  an  early  case  at  circuit  Chief  Justice  Llarshal  in  deciding  an  appeal 
in  an  action  of  debt  to  recover  a  statutory  penalty,  held  that  a  declara- 
tion averring  the  offense  against  the  "collector  or  one  of  them"  was  defec- 
tive in  form  merely.  He  therefore  held  the  defect  cured  on  appeal  by  the 
statute  of  Jeofails.  '"The  defect  seems  to  me"  he  said  "to  be  a  defect  of 
form  whenever  the  defendant  must,  of  necessity,  be  guilty  of  a  breach  of 
the  law,  and  have  incurred  the  penalty  for  which  the  suit  is  brought,  if 
the  allegation  in  the  declaration  be  true.  This  seems  to  me  to  constitute 
the  difference  between  form  and  substance."2  0 

[tj     Special  demurrer  in  Federal  practice. 

It  has  been  said  that  this  section  confers  the  right  to  file  a  special  de- 
murrer in  actions  in  the  Federal  court. i  There  is  no  direct  adjudication  of 
the  Supreme  Court  upon  that  point. 2  Such  demurrers  though  abolished  in 
certain  jurisdictions,3  are  however,  generally  permissible  in  the  practice 
of  the  various  States. 

[d]     Defects  and  amendment  of  process. 

R.  S.  §  948,  enacted  in  1872,  also  confers  power  on  the  circuit  and  district 
courts  to  amend  all  process  "where  the  defect  has  not  prejudiced  and  the 
amendment  will  not  injure  the  party  against  whom  such  process  issues." 5 
The  process  referred  to  in  R.  S.  §  754  would  seem  under  the  rule  of  noscitur 
a  sociis,  to  refer  to  process  in  civil  causes  only,  but  R.  S.  §  948  is  not  thus 
limited  in  its  terms  or  context,  so  that  power  to  amend  process  in  criminal 
causes  6  is  derivable  therefrom.  These  provisions  have  been  said  to  confer 
an  unconditional  and  positive  power  of  amendment.^  Though  generally 
recognized  as  extending  only  to  defects  or  want  of  form.s     The  United 

Pope,   2   Woods,   463.,   Fed.    Cas.   No.  Pet.  C.  C.  475,  Fed.  Cas.  No.  S.448; 

17,528;   Henderson  v.  Lrouisville,  etc.  Jackson   v.   Rundlet,   1    Wood.   &   M. 

R.  R.   123  U.   S.  61,   31   L.  ed.  92,   8  381,   Fed.   Cas.    No.    7,145;    Tyler  v. 

Sup.  Ct.  Rep.  60;  Fitzpatrick  V.  Flan-  Hand,   7    How.    582,    12   L.    ed.    827; 

nagan,  106  U.  S.  648,  27  L.  ed.  211,  1  Christmas  v.  Russell,  5  Wall.  290,  18 

Sup.  Ct.  Rep.  369  and  Wolf  v.  Cook,  L.  ed.  479. 

40  Fed.  432,  following  the  State  law        2See  Chidress  v.  Emory,  8  Wheat, 

as  to  various  amendments.  672,  5  L.  ed.  712. 

leSee  Tobey  V.  Claflin,  3  Sumn.  379,        sSee   GrafBn  v.  Jackson,  40   N.   J. 

Fed.  Cas.  No.  14,066;  North,  etc.  Co.  L.  443. 
V.  Burnham,  102  Fed.  669,  42  C.  C.  A.        5 Post,  §  840. 
584.  6See  Anon.  1  G-all.  22,  Fed.  Cas.  No. 

iTKing  V.  Davis.  137  Fed.  198.  444,  decided  before  R.   S.  §  948  was 

20 Jacob  V.  United  States,  1  Brock,  enacted. 
520,  Fed.  Cas.  No.  7.157.  ^Erstein  v.  Rothschild,  22  Fed.  61. 

iCage  V.  Jeffries,  Hempst.  409,  Fed.        sDwight     v.    Merritt,   18   Blatchf. 

Cas.  No.  2,287;   see  instances  of  spe-  305,  4  Fed.  614. 
cial  demurrer:     Lockington  v.  Smith. 

722 


Procedure] 


FORMAL    DEFECTS    DISREGARDED, 


§   813   [dl 


States  courts  have  plenary  power  to  allow  amendments  of  process 9  where 
there  is  anything  to  amend  by.io  But  if  process  is  ineffectual,  no  amend- 
ment can  be  made  which  will  render  it  effectual. n  The  power  granted 
is  a  power  to  amend  a  defect  in  process,  and  a  power  to  amend  a  want  of 
form  in  process. 12  The  decided  cases  show  a  variety  of  amendments 
that  have  been  allowed.  A  writ  may  be  amended  by  a  proper  indorsement 
of  the  cause  of  actionis  or  a  correction  of  the  title.i*  A  writ  calling  de- 
fendant by  a  wrong  name  may  be  amended  by  consent; is  as  by  striking 
out  administrator  and  inserting  executor; is  or  by  correcting  the  name  of 
plaintiff;i7  but  leave  to  strike  out  the  name  of  the  wife  may  be  refused.is 
A  summons  may  not  be  amended  by  the  subsequent  addition  of  the  sig- 
nature of  the  clerk,  and  seal  of  the  court.19  The  return  day  of  process 
may  be  amended  when  erroneous.  The  court  has  discretion  to  permit 
an  officer  to  amend  his  return  with  or  without  notice  at  any  time,2  0 
as  to  both  mesne  and  final  process. 1  But  a  sheriff  cannot  amend  his 
return  on  a  summons  after  the  cause  has  been  removed  to  a  Federal 
Court.2  An  execution  may  be  made  to  conform  to  the  judgment. 3  A 
fieri  facias  may  be  amended  by  striking  out  the  name  of  the  deceased 
plaintiff.*  And  longer  time  be  given  to  a  State  than  to  other  parties.5 
A  capias  may  be  amended  by  inserting  the  christian  name  of  the  plain- 
tiff; 6  but  not  so  as  to  alter  the  name  of  the  plaintiff. 7  The  return 
to   a  writ  of   peremptory   mandamus  may   be  amended  ;8    even   after   the 


sEberly  v.  Moore,  24  How.  147,  16 
L.  ed.  6i2. 

loFurniss  v.  Ellis,  2  Brock.  14, 
Fed.  Cas.  No.  5,162;  Randolph  v. 
Barrett,  16  Pet.138,  10  L.  ed.  914; 
Tayloe  v.  Wharfield.  2  Cranch  C.  C. 
248,  Fed.  Cas.  No.  13,772. 

iiChamberlin  v.  Bittersohn,  48 
Fed.  42;  Peaslee  v.  Haberstro,  15 
Blatchf.  472,  Fed.  Cas.  Xo.  10.884; 
D wight  v.  Merritt,  18  Blatchf.  305, 
4  Fed.  614;  Brown  v.  Pond,  5  Fed. 
31. 

i2Dwight  V.  Merritt,  IS  Blatchf. 
305,  4  Fed.  616. 

isMiller  v.  Gages,  4  McLean,  436, 
Fed.  Cas.  No.  9,571. 

i^Furniss  v.  Ellis.  2  Brock.  15, 
Fed.  Cas.  No.  5,162;  but  see  Albers 
V.  Whitney,  1  Story,  310,  Fed.  Cas. 
No.  137. 

isElliott  v.  Holmes,  1  McLean,  466, 
Fed.  Cas.  No.  4.302. 

16 Randolph  v.  Barrett,  16  Pet.  138, 
10  L.  ed.  914. 

iTCeorgetown  v.  Beattv,  1  Cranch 
C.  C.  234'.  Fed.  Cas.  Xo.  5.344 ;  Gulf, 
etc.  R.  R.  V.  James,  48  Fed.  148,  1 
C.  C,  A.  53. 


isMoores  v.  Carter.  Hemp.  64,  Fed. 
Cas.  No.  9.7S2a. 

isDwight  V.  Merritt.  4  Feci.  014. 
S.  C.  IS  Blatchf.  306. 

20Norton  v.  Dover,  14  Fed.  106; 
Hampton  v.  Rouse,  15  Wall.  684,  21 
L.  ed.  250:  Semmes  v.  Rouse,  91  U.  S. 
21.  23  L.  ed.  193:  Rickards  v.  L;idd, 
6  Saw.  40,  Fed,  Cas.  No.  11.804. 

iPhoenix  Ins.  Co.  v.  Wulf,  1 
Fed.  775:  Semmes  v.  Ignited  States, 
91  U.  S.  21.  23  L.  ed.  193:  French  v. 
Edwards,  5  Saw.  260,  Fed.  Cas.  No. 
5,098. 

2Hawkins  v.  Pierce,  79  Fed  452. 

sMurphv  V.  Lewis,  Hemp.  17,  Fed. 
Cas.  No.  9,950a. 

4Lane  v.  Beltzhoover,  Taney,  110, 
Fed.  Cas.  No.  8,047. 

sRhode  Island  v.  Massachusetts,  13 
Pet.  23,  10  L.  ed.  41. 

6Birch  v.  Butler,  1  Cranch  C.  C. 
319,  Fed  Cas.  Xo.  1.425. 

7ComegA-ss  v.  Robb,  2  Cranch  C.  C. 
141,  Fed.  Cas.  Xo.  3.049. 

^Supervisors  v.  Durant,  9  Wall. 
736,  19  L.  ed,  813. 


723 


§  813   [e]  GENERAL  AND  MISCELLANKOUS  PROVISIONS.        [Code  Fed. 

loturn  day; a  or  after  the  marshal  has  ceased  to  hohl  office. lo  The 
date  on  a  summons  has  been  changed  where  necessary  to  validate 
the  writ;ii  and  the  ad  damnum  clause. 12  An  affidavit  tor  garnishment 
has  been  amended; i3  and  seal  has  been  added  to  a  State  court's  attach- 
ment  after  removal  to  the  Federal  court. 14 

[e]     Amendments  of  plaintiff's  pleadings  in  general. 

The  cases  present  numerous  instances  of  amendments  of  the  plaintiff's 
pleadings.  If  a  declaration  fails  to  allege  the  matter  in  controversy  it  may 
be  amended;  17  and  the  claim  for  damages  may  be  increased. is  A  party 
may  amend  his  complaint  so  as  to  demand  two-thirds  instead  of  the  en- 
tire property.i9  Want  of  proper  jurisdictional  averments  may  be 
amended; 20  even  after  judgment  or  decree.i  A  declaration  in  ejectment 
may  be  amended  by  inserting  a  later  date  of  the  lease. 2  The  date  of 
the  demise  may  be  amended; 3  and  it  may  be  extended  after  judgment,  Tmt 
not  except  on  notice. *  Stating  it  under  a  new  title  will  not  be  allowed. s 
If  judgment  in  ejectment  is  rendered  after  the  lapse  of  the  term  stated 
in  the  demise,  it  may  be  amended  by  enlarging  the  term. 6  In  slander  an 
amendment  may  be  allowed  changing  the  words  charged. 7  A  libel  or  in- 
formation at  common  law  to  enforce  a  forfeiture  may  be  amended,  s  So 
a  petition  in  the  court  of  claims  may  be  amended.9  A  pleading  may  be 
amended  so  as  to  bring  the  case  within  the  exception  to  the  statute  of 
limitations;  10    as   that  the   fraud  was  not  discovered  until  the  time   that 

sLinthicum   v.  Remington,  5  Cranch  sBlackwell    v.    Patton,    7    Cranch. 

C.  C.  546,   Fed.  Cas.  Xo.  8,.377.  471,  3  L.  ed.  408;  Smith  v.  Vaughan. 

lOCushing  v.  Laird,  4  Ben.  70,  Fed.  10  Pet.  367,  9  L.  ed.  458;  McDaniel  v. 

Cas.  No.   3,508.  Wailes,  4  Cranch  C.  C.  201.  Fed.  Cas. 

iiGilbert   v.   South,   C.   &   Co.   113  No.    8,746;     see    Dav    v.    Chism.    10 

Fed.  523.  Wheat.  449,  6  L.  ed.  363. 

i2Davis  V.  Kansas  C.  R.  R.  32  Fed.  ^Ledgerwood  v.  Pickett,  1  McLean, 

863.  143.    Fed.   Cas.   No.   8.175. 

i3Booth  V.  Denike,  65  Fed.  43.  sGale  v.    Babcock,    4  Wash.  C.   C. 

14 Wolf  V.  Cook,  40  Fed.  432.  199,  Fed.  Cas.  No.  5,188. 

iTLanning  v.  Dolph,  4  Wash.  C.  C.  sWalden  v.  Craig,  9  Wheat.  576.  6 

624,  Fed.  Cas.  No.  8,073.  L.  ed.  164. 

isGregg   V.    Gier,    4   McLean,    208,  "Doughertv   v.    Bentlev,    1    Cranch 

Fed.  Cas.  No.  5,799;  Good  v.  Martin,  C.  C.  219,  Fed.  Cas.  No.  4,024. 

1   Colo.  406.  sUnited  States  v.  Stevenson,  6  Int. 

19 Van  Zandt  v.  Argentine  Min.  etc.  Rev.  Rec.  221,  Fed.   Cas.  No.   16,398: 

Co.  2  McCrarv.  159,  8  Fed.  725.  United   States   v.   Batchelder,   9  Int. 

20I11  re  Plymouth,  etc.  Co.  135  Fed.  Rev.  Rec.  98,  Fed.  Cas.  No.  14.541: 
1000.  68  C'  C.  A.  434;  Bowden  v.  United  States  v.  Barrels,  3  Int.  Rev. 
Burnham.  .59  Fed.  752,  8  C.  C.  A.  248;  Rec.  114,  Fed.  Cas.  No.  16,502;  Unit- 
Nevada  Co.  V.  Famsworth,  89  Fed.  ed  States  v.  Whiskey,  7  Phila.  603. 
164;  Smith  v.  Jackson,  1  Paine,  486.  Fed.  Cas.  No.  16.671;  Ignited  States 
Fed.  Cas.  No.  13,065;  Maddox  v.  v.  One  Hundred  and  Twenty-three 
Thorn.  60  Fed.  217.  8  C.  C.  A.  574.  Casks,   1    Abb.   U.   S.   573,   Fed.  Cas. 

iMexican   C.  R.  R.  v.   Duthie.   189  No.    15.943;    Anon.    1    Gall.   22.   Fed. 

U.  S.  76.  47  L.  ed.  715,  23  Sup.  Ct.  Cas.  No.  444. 

Rep.   610.  sMoliiui  V.  United  States,  6  Ct.  of 

2Walden    v.    fraig.    9    Wlieat.    576.  CI.  2()9. 

6  L.  ed.   164:   Blackwell   v.  Patton,  7  K'Piatt  v.  Vattier.  9  Pet.  405.  9  L. 

Cranch.  471,  3  L.  ed.  408.  ed    173;    The    Harmony.    1    Gall.    123, 

724 


m 


Procedure] 


FORMAL  DEFECTS  DISKEGAKDED. 


§  813   [el 


would  remove  the  bar  of  the  statute.n  A  plea  of  the  statute  of  limitations 
can  be  amended  only  when  shown  necessary  for  the  justice  of  the  case.12 
Blanks  may  be  filled  in  a  declaration  to  avoid  the  statute  of  limitations 
on  payment  of  costs.is  Leave  to  file  a  plea  of  the  statute  of  limitations 
applied  for  out  of  time  will  be  refused. 1*  Leave  may  be  granted  to  verify 
pleadings  as  required  by  statute; la  but  not  on  the  trial  to  the  surprise  of 
the  other  party. is  Amendment  is  allowable  which  consists  in  adding  a  new 
count  of  a  kindred  cause  of  action ;i"  and  when  it  is  founded  on  the  same 
transaction,  and  admits  the  same  pleading,  defense,  and  proof. is  A  dec- 
laration may  be  amended  so  as  to  refer  to  the  right  statute.  1 9  PlaintiflF 
may  be  allowed  to  withdraw  a  replication,  and  file  a  denial  or  plea. 20 
After  demurrer  sustained  the  plaintiff  is  not  entitled  as  matter  of  right  to 
amend  his  bill;  it  is  within  the  discretion  of  the  court  to  allow  it;  and 
the  order  denying  the  motion  to  amend  is  not  reviewable  if  the  record  does 
not  show  what  amendment  was  desired.  1  But  plaintiff  may  show  a  subse- 
quent capacity  to  sue  after  demurrer  sustained. 2  A  defective  bill  of  partic- 
ulars may  be  amended. 3  It  was  a  rule  of  the  common  law  still  asserted  in 
many  cases  that  plaintiff  could  not  amend  if  there  was  nothing  to  amend 
by  and  that  a  complainant  cannot  abandon  his  case  and  make  a  new  and 
different  one  by  amendments  ;4  as  by  changing  an  action  on  the  case  into 
action  in  debt.  5  But  some  late  cases  show  great  liberalty  in  allowing 
amendments  even  although  they  change  or  add  to  the  cause  of  action  pre- 
viously stated, 6  and  the  court  in  its  discretion  has  allowed  an  amendment 
of  a  merely  inferential  allegation  of  ground  of  recovery. 7     An  amendment 


Fed.  Cas.  No.  6.081;  Tierman  v. 
Woodruff,  5  Mcl^ean,  135.  Fed.  Cas. 
Xo.  14,027. 

11  Wharton  v.  Lowrev,  2  Call.  364, 
1   L.  ed.  417. 

i2Thompson  v.  Afflick.  2  Cranch  C. 
C.  46,  Fed.  Cas.  No.  13,939. 

isFerris  v.  Williams.  1  Cranch  C. 
C.  281,  Fed.  Cas.  No.  4.749. 

i4Reed  v.  Clark,  3  :\IcLean,  480, 
Fed.  Cas.  No.  11,643. 

15 Loving  V.  Faircliild.  1  ^McLean. 
333.  Fed.  Cas.  No.  8.556. 

leBenediet  v.  Mavnard.  6  McLean, 
21,  Fed.  Cas.  No.  1.296. 

iTTiernan  v.  Woodruff.  5  ^IcLean. 
135,  Fed.  Cas.  No.  14.027:  Bowcn  v. 
Needles  Nat.  Bank,  79  Fed.  49. 

isTiernan  v.  Woodruff.  5  McLean. 
135.  Fed.  Cas.  No.  14.027:  United 
States  V.  B:itchelder,  9  Int.  Rev.  Rec. 
98.  Fed.  Cas.   No.   14.541. 

isRosenbach  v.  Drevfuss.  1  Fed. 
391. 

2  0McGill  V.  Sliehee.  1  Cranch  C. 
C.  49.  Fed.  Cas.  No.  8,796. 

iNational  Bank  v.  Carpenter.  101 
U.  S.  567,  25  L.  ed.  815. 


2Swatzel  V.  Arnold,  1  Woohv.  383., 
Fed.  Cas.  No.  13.682. 

sPott  V.  Arthur.  15  Blatchf.  314. 
Fed.  Cas.  No.  11,319:  Rickard  v.  Bar- 
ney, 32  Fed.  581  :  but  see  Dieckerhoff 
v.  Robertson.  29  Fed.  781. 

■»  Fiedler  v.  Carpenter,  2  Wood.  & 
M.  211.  Fed.  Cas.  No.  4.759;  Schofield 
v.  Fitzhugh,  1  Cranch  C.  C.  108,  Fed. 
Cas.  No.  12.474;  Sneed  v.  McCoull. 
12  How.  407.  13  L.  ed.  1043;  Post- 
master General  v.  Ridgwav.  Gilp.  135. 
Fed.  Cas.  No.  11,313:  Shields  v.  Bar- 
row. 17  How.  144,  15  L.  ed.  159: 
Goodyear  v.  Bourn,  3  Blatchf.  266. 
Fed.  Cas.  No.  5.561.  But  .see  The 
Harmonv,  1  Gall.  123,  Fed.  Cas.  No. 
6.081. 

"Ten  Broeck  v.  Pendleton,  5 
Cranch  C.  C.  464.  Fed.  Cas.  No. 
13,827;  Scholfield  v.  Fitzhugh,  1 
Cranch  C.  C.  lOS,  Fed.  Cas.  No.  12.- 
474. 

sin  re  Glass,  119  Fed.  509:  Oliver 
V.  Ravmond.  108  Fed.  927. 

TGreat  N.  Rv.  v.  Herron,  136  Feil. 
49.  68  C.  0.  A.  599. 


725 


§   813   [f]        GENERAL    AND    MISCELLANEOUS    PROVISIONS.      [Code  Fed. 

has    been    refused,    designed    to   bring  in    a   defendant   against   whom    the 
statute  does  not  give  jurisdiction. s 

[f]     Amendment  of  defendants  pleadings. 

A  defendant  may  amend  his  plea;io  or  withdraw  a  plea;ii  or  file  an 
additional  plea;  12  or  add  an  affidavit  thereto ;i3  or  he  may  withdraw  his 
plea  and  demurrer.i*  But  upon  the  overruling  of  the  demurrer  the  court 
may  refuse  to  permit  him  to  file  an  answer  setting  up  a  new  cause  of  ac- 
tion.is  Defendant  may  file  a  plea  in  abatement  ;16  or  an  additional  plea, 
and  amend  those  already  filed. i^  New  pleas  should  be  allowed  only  where 
a  good  reason  is  shown  for  it,  and  on  terms; is  but  leave  to  file  a  special 
plea  is  allowed  where  it  does  not  appear  clearly  bad;i9  and  an  insulHcient 
plea  will  be  rejected. 20  It  will  not  be  allowed  if  it  essentially  changes  the 
ground  of  the  defense,  unless  for  cogent  reasons  ;i  and  where  the  case  is 
called  for  trial,  only  when  necessary  for  the  justice  of  the  case.2  It  can- 
!not  be  allowed  if  judgment  on  demurrer  has  been  affirmed  on  appeal.2  De- 
fendant cannot  amend  his  answer  so  as  to  deny  a  fact  affirmatively  passed 
upon  and  determined  by  the  Supreme  Court. ■*  The  court  will  permit  the 
withdrawal  of  a  demurrer; 5  but  leave  to  amend  a  demurrer  which  does 
not  go  to  the  merits  will  be  refused. 6  An  answer  in  a  libel  suit  may 
sometimes  be  amended  by  inserting  denials  in  respect  of  the  amount  of  the 
damages.''  An  amendment  to  the  answer  will  not  be  allowed  unless  good 
cause  and  the  use  of  diligence  be  shown. s     An  admission  cannot  be  with- 


sAdams  v.  Heckscher,  SO  Fed.  742. 

loMcGill  V.  Sheehee.  1  Cranch  C. 
C.  49,  Fed.  Cas.  No.  8.79<3. 

ii^Melburne  v.  Kearnes.  1  Cranch 
C.  C.  77,  Fed.  Cas.  No.  9.543;  Gill  v. 
Patten.  1  Cranch  C.  C.  114,  Fed.  Cas 
No.  5,427 ;  Short  v.  Wilkinson,  i 
Cranch  C.  C.  22,  Fed.  Cas.  No.  12.810. 

isSemmes  v.  O'Neale,  1  Cranch  C 
C.  246,  Fed.  Cas.  No.  12,054;  Teas, 
dale  V.  Jordan,  2  Havw.  281,  Fed. 
Cas.  No.  13,814. 

isLoving  V.  Fairchild,  1  McLean 
333,  Fed.  Cas.  No.  8,550. 

i^Deakins  v.  Lee,  1  Crancli  C.  C 
442,  Fed.  Cas.  No.  3,097;  Krouse  v 
Sprogell.  1  Cranch  C.  C.  78,  Fed.  Cas 
No.  7,940;  Alricks  v.  Slater,  1  Cranch 
C.  C.  72.  Fed.  Cas.  No.  259. 

isBaltimore  &  O.  R.  R.  Co.  v 
Camp,  81   Fed.  807,  26  C.  C.  A.  026. 

leEberly  v.  Moore.  24  How.  147 
10  L.  ed.  012. 

iTPolard  V.  Dwight,  4  Cranch.  421, 
2  L.  ed.  606;  Marine  Ins.  Co.  v. 
Hodgson,  6  Cranc.i,  200,  3  L.  ed.  200: 
United  States  v.  Kirkpatrick,  9 
Wheat.  720,  0  L.  ed.  199;  Dav  v. 
Chism,  10  Wheat.  449,  0  L.  ed.'303. 


isChilds  V.  Lenig,  1  Wall.  Jr.  305, 
Fed.  Cas.  No.  2,680. 

i9Gill  V.  Patten,  1  Cranch  C.  C. 
114,   Fed.   Cas.   No.   5,427. 

2  0Kerr  v.  Force,  3  Cranch  C.  C.  8, 
Fed.  Cas.  No.  7,730. 

1  Smith  V.  Babcock,  2  Wood.  &  M. 
246,  Fed.  Cas.  No.  13,009;  Morehead 
V.  Jones,  3  Wall.  Jr.  306,  Fed.  Cas. 
No.  9,791. 

2 Bullock  V.  Van  Pelt.  Bald.  403. 
Fed.  Cas.  No.  2,131;  Bastable  v.  Wil- 
son, 1  Cranch  C.  C.  124,  Fed.  Cas. 
No.  1,097;  Allen  v.  Magruder,  3 
Cranch  C.  C.  0.  Fed.  Cas.  No.  230; 
Childs  v.  Lenig.  1  Wall.  Jr.  305.  Fed. 
Cas.  No.  2,080. 

3  Hodgson  v.  Marine  Ins.  Co.  1 
Cranch  C.  C.  569,  Fed.  Cas.  No.  0.500. 

4 Walker  v.  Brown,  80  Fed.  304. 

sSucklev  V.  Slade,  5  Cranch  C.  C. 
123,  Fed.  Cas.  No.  13,587. 

eOffutt  V.  Beattv,  1  Cranch,  C.  C. 
213,   Fed.  Cas.  No.'  10,448. 

TGoodvear,  etc.  Co.  v.  White,  17 
Blatch.f."'5,  Fed.   Cas.  No.   5,001. 

sLaniib  v.  Parkman,  21  Law  Rep. 
589,  Fed.  Cas.  No.  8,019, 


726 


Procedure] 


FORMAL   DEFECTS    DISUEGARDED. 


§   813   [gl 


drawn  if  there  is  no  allegation  of  mistake  in  fact  or  of  law. 9  The  amend- 
ment of  an  answer  by  the  assertion  of  an  additional  fact  was  refused, 
where  the  fact  was  known,  at  the  time  the  answer  was  filed. lo  It  is  not 
allowed  where  due  diligence  has  not  been  exercised.n  but  it  is  not  neces- 
sary that  the  new  fact  should  be  first  established.  12 

[gj     Amendment  as  to  parties. 

A  defect  of  parties  may  be  cured  by  amendment  ;15  as  by  striking  out 
parties;  16  or  by  inserting  the  names  of  the  members  of  a  firm. 1 7  But  not 
if  the  form  of  the  action  is  such  that  the  member  is  already  embraced.is 
So  an  error  in  a  name  may  be  corrected;  19  as  in  the  name  of  a  corpo- 
ration.20  An  amendment  will  be  allowed,  striking  out  a  name  from  a 
petition. 1  On  a  plea  of  misnomer  plaintiff  may  amend  as  to  the  name  of 
defendant; 2  or  by  striking  out  the  name  of  a  defendant. 3  Leave  to  dismiss 
as  to  certain  defendants  will  not  be  granted  after  the  court  has  rendered 
an  opinion  granting  a  motion  to  direct  a  verdict  for  defendants.'*  A  defect 
of  nonjoindei'  of  the  husband  in  suit  by  the  wife  is  curable  by  amendment. 5 
Whether  an  amendment  substituting  a  different  party  plaintiff  is  allow- 
able, is  often  an  important  question  where  the  statute  of  limitations  has 
become  a  bar  to  a  claim  if  the  amendment  is  not  allowable.  There  are 
cases  permitting  amendment  by  substitution  of  the  name  of  the  real  party 
in  interest,  for  a  nominal  plaintiff; 6  and  holding  that  a  refusal  to  permit 
such  substitution  where  a  claim  would  otherwise  be  defeated  by  the  bar  of 
the.  statute,  is  an  abuse  of  discretion. 7     Where  the  substitution  of  a  new 


s^rorehead  v.  Jones.  .3  Wall.  Jr. 
306.  Fed.  Cas.  No.  9.701  :  Waterman 
V.  Merrill.  2  Abb.  U.  S.  478,  Fed.  Cas. 
Xo.  17,258. 

loCross  V.  !\rorgan.  6  Fed.  241. 

uSnead  v.  McCoull.  12  Fed.  407,  13 
L.  ed.  104.3:  Clifford  v..  Coleman.  13 
Blatchf.  210,  Fed.  Cas.  No.  2,894; 
Ross  V.  Carpenter,  6  McLean,  382, 
Fed.  Cas.  No.  12.072;  India  Rubber 
Co.  V.  Phelps,  8  Blatchf.  85;  Fed. 
Cas.  No.  7.025;  Webster  Loom  Co. 
V.  Higgins,  13  Blatchf.  349,  Fed.  Cas, 
No.  17,341:  Suvdam  v.  Truesdale,  6 
INlcLean,   459,   Fed.   Cas.   No.    13.656. 

i2Smith  V.  Babcock.  2  Wood  &  M. 
^6,  Fed.  Cas.  No.  13,009. 

i5Douglas  V.  Butler,  6  Fed.  228. 

leConnollv  v.  Tavlor.  2  Pet.  556, 
7  L.  ed.  518:  Cole  S.  M.  Co.  v.  Vir- 
ginia G.  H.  W.  Co.  1  Saw^'.  470,  Fed. 
Cas.  No.  2.989. 

iTTibbs  v.  Parrott.  1  Cranch  C.  C. 
177,  Fed.  Cas.  No.  14.022. 

isUnited  States  v.  McCov,  54  Fed. 
107. 

i9Furniss  v.  Ellis,  2  Brock.  14, 
Fed.   Cas.  No.  5,162. 


soGeorgetown  v.  Beattv,  1  Cranch 
C.  C.  234"  Fed.  Cas.  No.  5.344. 

iWhitaker  v.  Pope.  2  Woods,  463. 
Fed.  Cas.  No.  17.528:  Tol^ev  v.  Claf- 
lin,  3  Sumn.  379.  Fed.  Cas.  No.  14,- 
066:  but  not  substituting  another  in 
its  place.  Comegvss  v.  Robb.  2  Cranch, 
C.  C.  141,   Fed.' Cas.  No.  3,049. 

2Nelson  v.  Barker,  3  :McLean,  379, 
Fed.  C^s.  No.  10.101 :  Scull  v.  Brid- 
dle.  2  Wash.  C.  C.  200.  Fed.  Cas.  No. 
12.570;  see  Craig  v.  Brown,  Pet,  C. 
C.  139,  Fed.  Cas.  No.  3,326:  Albers  v. 
Whitney,  1  Story,  310,  Fed.  Cas.  No. 
137. 

sGreelev  v.  Smith,  3  Story,  76, 
Fed.  Cas.'  No.  5,747. 

4 Wright  V.  Southern  Rv.  Co.  80 
Fed.  260. 

sDouglas  V.  Butler.  6   Fed.  228. 

fiEssex  Co.  Nat.  Bank  v.  Bank  of 
Montreal,  7  Biss.  193.  Fed.  Cas.  No. 
4.532:  Whitaker  v.  Pope,  2  Woods. 
403,  Fed.  Cas.  No.  17,528:  McDonald 
V.  Nebraska,  101  Fed.  171.  41  C.  C. 
A.  278.  But  see  Morris  r.  Barney.  1 
Cranch  C.  C.  245,  Fed.  Cas.  No.  9.826. 

-Hodges   V.   Kimball,   91    Fed.   845, 


§   813   [h]        GENEUAL    AND    MISCELLANEOUS    PROVISIONS.      [Code  Fed. 

plaintiff  would  also  substitute  a  ditlVrcnt  i-ause  of  action  it  would  not  seem 
allowable.s 

[h]     Amendment  of  verdict. 

It  is  well  settled  that  R.  S.  §  054  applies  to  and  permits  amendment  of 
verdicts.io  Hence  if  a  verdict  is  general,  it  may  be  amended  so  as  to  apply 
to  the  count  under  which  the  evidence  is  given. n  Leave  may  be  granted 
to  amend  a  verdict  in  replevin  after  the  jury  had  returned  and  another 
cause  had  been  tried.12  A  verdict  in  assumpsit  '"that  defendant  is  guilty 
in  manner  and  form  as  alleged"  is  amenable. is  On  a  stipulation  that  the 
jury,  if  the  court  be  not  in  session  when  they  agree  upon  their  verdict,  may 
sign,  seal,  and  deliver  it  to  the  officer  in  charge  and  disperse,  the  entry  of 
the  verdict  in  proper  form  is  allowed  by  this  section. i*  The  court  may 
enter  the  verdict  in  such  form  as  to  give  legal  effect  to  what  the  jury  un- 
mistakably found,  under  Rev.  Stat.,  S  954,  and  the  Practice  Act  of 
niinois.15  The  verdict  may  be  amended  to  correct  a  mistake,  in  the  nature 
of  a  clerical  error,  in  announcing  or  making  the  record  of  the  A^erdict  actual- 
ly agreed  upon;i6  and  in  a  proceeding  in  equity  to  remedy  a  mistake  in 
announcing  the  verdict  of  a  jury  the  jurors  are  competent  witnesses  to 
prove  that  the  verdict  read  out  in  the  court  by  their  foreman  was  not  their 
verdict,  but  the  result  of  an  oversight  by  him  in  making  the  announce- 
ment.! ^     Omission  of  the  word  "dollars"  in  a  verdict  is  immaterial.!  8 

[i]     Amendment  on  removal. 

This  section,  both  in  letter  and  spirit,  confers  the  power  and  makes  it  the 
duty  of  courts  to  cure  defects  in  the  record  by  enlarging  the  time  for  filing 
a  transcript  on  the  removal  of  a  cause  from  a  State  court.!  An  amended 
transcript  may  be  filed  disclosing  the  requisite  citizenship. 2  The  declara- 
tion may  be  amended  by  inserting  new  counts  for  the  same  cause  of  action. s 
But  a  sheriff  may  not  amend  his  return  of  service  of  process  in  a  suit  begun 

34  C.  C.  A.  10.3:  Van  Doren  v.  Penn.         isAriruelles  v.  Wood.  2  Cranch   C. 
R.  R.  93  Fed.  260.  35  C.  C.  A.  282.        C.  579.  Fed.  Cas.  No.  520. 

8See   Morris  v.   Barnev.   1    Cranch  ^   ''^^'Tl'r'o''-  ^™"  ^°-  ^^^  ^'^  ^^  ^^-' 

C.  C.  245.  Fed.  Cas.  No.  9,2i86;  Come-  -'^,V-  ^^-  '^^^i        ^      ,«.  tt    ^    ,«.   -,« 

gvss  V.  Robb.  2  Cranch  C.  C.  141,  Fed.  ^   ''^"S"  ';;  ^Jl\'^^;  ^^  }■  ^-  ^^j^l  "^ 

Cas.  No.  3.049;  The  Detroit,  1  Brown  ^^  ^,%^'^'  ^-^^  ^  ¥"7/  Jrans.  125 
\dm    141    Fed    Cas    No    3.83--'  i»Koon  v.  Phoenix  Mut.  L.  Ins.  Co. 

!OMurphy  v.  Stewart.  2  How.  263,        lePelzer     :\Ifg.     Co.     v.    Hamburg- 

11    L.   ed.   261:    Parks   v.    Turner,    12  Bremen  Fire  Ins.   Co.  71    Fed.  826." 
How.    39,    13   L.    ed.    883;    Snyder   v.        1  TH-amburg-Bremen  Fire  Ins.  Co.  v. 

United   St.-tes.   112  U.   S.  217.  28  L.  Pelzer   Mfg.   Co.   76  Fed.   479,   22   C. 

ed.  698,  5  Soip.  Ct.  Rep.  119:  Hopkins  c.  A.  283. 

v.  Orr.   124  U.  S.  513.  31  L.  ed.  525,       TsHopk'ins   v.   Orr.    124   U.    S.    513, 

8  Sup.  Ct.  Rep.  591.  Osborn  v.  Alts-  31  y,.  p^.  525.  8  Sup.  Ct.  Rep.  591. 
chul,  93   Fed.   383.   35  C.  C.   A.   354;         iWoolridge    v.    McKenna,    8    Fed. 

Cay    V.    .Toplin.    13    Fed.    6.53.    4    Mc  qq'^_ 
Crary,  459.  and  see  note  thereto.  '-'Kaeiser  v.  Illinois  Cent.  R.  R.  Co. 

iiMurphv  V.  Stewart.  2  How.  263,  6  Fed.  1.  2  McCrary,  187. 
11   L.  ed.  2<52:   Stockton  v.  Bishop.  4        3 West  v.  Smith,  "lOl  U.  S.  263,  25 

How.  155,  11  L.  ed.  918.  L.   ed.   810. 

728 


n-ocedurej  FOUMAI,  DEFKCTS   DISREGARDED.  §   813    [j] 

in  the  Slate  court,  after  removal. <  A  defective  removal  bond  may  l)e 
amended  by  a  new  one  filed  nunc  jiro  tunc.5  A  seal  omitted  from  the  at- 
tachment issued  by  the  State  court  may  be  amended  in  the  Federal  court 
if  the  State  law  permit.s.6  A  complaint  framed  as  at  law  and  placed  on 
the  law  calendar  may  be  amended  after  demurrer,  reformed  into  a  bill  in 
equity,  and  placed  on  the  equity  calendar.' 

[jj     Amendments  in  equity. 

R.  S.  §  !)54  applies  to  equity  as  well  as  to  law  cases.  In  addition  there 
are  several  equity  rules  upon  the  subject. lo  Amendments  in  mere  matters 
of  form,  dates,  or  verbal  inaccuracies,  are  liberally  allowed.n  The  court  has 
power  in  the  interest  of  justice  to  permit  an  amendment  to  defective  plead- 
ings, both  of  bills  and  answers.i2  A  bill  may  be  amended  by  making  new 
parties ;  1 3  or  by  adding  an  averment  of  citizenship ;  i  i  even  after  inter- 
locutory decree  on  demurrer; J 5  and  after  remand  from  the  Supreme  Court. is 
An  invitation  to  other  creditors  to  come  in  at  any  time  before  answer  may 
be  stricken  out.i'i'  A  bill  may  be  amended  by  adding  a  prayer  for  relief. is 
It  may  be  a7nended  so  as  to  conform  its  special  prayer  to  its  real  purpose.' » 
So  if  the  facts  authorize  a  redemption  from  a  creditors'  sale,  though  the 
period  for  redemption  is  past,  the  court  will  permit  an  amendment  to  the 
prayer  for  relief. 20  If  the  amendment  ijitroduces  a  new  case,  defendant 
may  plead  in  abatement  or  otherwise. 1  When  due  diligence  is  shown,  the 
bill  may  be  amended,  even  though  the  claim  is  stale.2  An  amendment  is 
not  allowable  which  introduces  a  new  cause  of  action. 3  An  amendment 
which  changed  the  character  of  the  bill  was  however,  allowed  in  a  special 
case  even  after  final  decree.'*  Where  the  original  petition  was  lost,  the  court 
may  allow  the  filing  of  a  new  petition. 5     The  amended  bill  should  state  so 

4TTawkin«   v.  Peirce.  Tfl  Fed  452.  0.505:    Spofford   v.   Ritten,4   McLean, 

^Harris  v.  Delaware,  etc.  R.  R.  Co.  253,  Fed.  Cas.  Xo.  13.244. 

18   Fe.-i.   833:    Deford   v.   MehaflFv,   13  i6Ja<>kson  v.  Ashton,   10  Pet.   480. 

Fed.  481.                                           '  9  L.  ed.  502. 

«Wolf  V.  Cook.  40  Fed.  432.  i^Yates  v.  Arden,  5  Crancli   C.   C. 

■^Dancel    v.   United    S.   ^l.   Co.   120  526.  Fed.  Cas.  Xo.  18.126. 

Fed.  839.  isHorsburg  v.   Baker,   1    Pet.   232, 

ioRuIps  Xo.  28,  20,  30,  35.  45,  46,  7  L.  ed.  125. 

See  post.  §§  056  et  seq.  isPartee  v.   Thomas.   11    Fed.   772; 

iiSmith    v.    Babcock.    3   Sum.    583,  see  Estill  v.  Deckard,  4  Baxt.  497. 

Fed.  Cas.  Xo.  13.008.  20Burgess  v.  GrafTam.  10  Fed    216. 

i2Xeale  v.  Xeales.  f>  Wall.  1,  19  L.  iKeene  v.  Wheatle\-.  4   Phila.   157. 

ed.   590:    Foote  v.   Silsby,   1   Blatchf.  Fed.  Cas.  Xo.  7.644. 

545.    Fed.    Cas.    Xo.   4.918:    Battle   v.  2Wharton   v.  Lo\vrev.   2  Dall.   364. 

Mutual   L.   Ins.   Co.   10   Blatchf.   417,  1   L.   ed.    417:    Fisher 'v.    Rutherford, 

Fed.  Cas.  Xo.  1,109:  Caster  V.  Woods,  Bald.      188.     Fed.    Cas.     Xo.     4.823: 

Bald.  289.  Fed.  Cas.  Xo.  2,505.  Copen  v.   Fleslier.   1   Bond.  440.   Fed. 

i3Fisher  v.  Rutherford,  Bald.   188,  Cas.  Xo.  3.211. 

Fed.  Cas.  Xo.  4.823.  3The  Circassian,  2   Ben.   171.  Fed. 

i^Pisher  v.  Rutherford.  Bald.  188.  Cas.  Xo.  2.723:  see  Walden  v.  Bodlev, 

Fed.  Cas.  Xo.  4.823;  Koenc  v.  Wheat-  14  Pet.   156.  10  L.  ed.  398. 

ley,  4  Phila.  157.  Fed.  Cas.  Xo.  7.644.  4The  Treiiiolo  Patent.  23  Wall.  518, 

'isFisher  V.  Rutherford,  Bald.  188,  23  L.  ed.  97. 

Fed.  Cas.  Xo.  4.823:   llilliard  v.  Bre-  5Phillips  v.  Moore.    100  U.   S.  208, 

yoort,  4  McLean,   24,   Fed.   Cas.   Xo.  25  L.  ed.  603. 

729 


§   813    [k]        GENERAL    AND    MISCELLANEOUS    PROVISIONS.      [Code   Fed. 

much  of  the  original  bill  as  is  necessary.6  An  amendment  relates  back  to 
the  filing  of  the  original  bill,  and  is  incorporated  into  and  is  a  part  of  it. 7 
An  amendment  was  allowed  where  it  was  clear  the  cause  was  tried  as  it 
must  have  been  tried,  had  the  bill  been  originally  drawn  as  amended. 8 
On  a  motion  made  before  final  argument,  leave  may  be  granted  to  amend 
an  answer,  so  as  to  set  up  a  new  defense. 9  An  application  to  reform  an 
answer  is  more  favorably  received  than  one  to  strike  it  oflf  and  substitute 
another.io  In  a  particular  case  an  amendment  was  allowed  so  as  to  deny 
the  validity  of  a  patent ;ii  and  an  amendment  in  an  answer,  on  the  ground 
of  mistake  or  error  in  the  admission  of  an  infringement,  was  denied.i2  An 
amendment  will  not  make  evidence  admissible  which  was  taken  under  ob- 
jections before  aximission.is  A  motion  to  amend  by  adding  new  parties 
defendant  after  replication  where  plaintiff  was  in  a  position  to  make  the 
amendment  before,  will  not  be  allowed.i^  A  bill  not  framed  with  a  view 
to  compel  the  receiver  and  back  tax  collector  to  proceed  with  the  collection 
of  taxes  cannot  be  amended  so  as  to  obtain  relief  against  such  a  collector.is 
An  amendment  to  an  answer  cannot  be  made  after  an  interlocutory  de- 
creets In  equity  the  party  amending  may  be  required  to  pay  costs. i7  .A 
motion  to  amend  by  averment  on  information  and  belief  that  the  invention 
was  in  public  use  more  than  two  years,  denied.is 

[k]     Amendments  in  admiralty. 

Certain  of  the  admiralty  rules  apply  to  and  govern  the  matter  of  amend- 
ments in  admiralty.2  A  libel  or  information  to  enforce  a  forfeiture  may 
be  amended; 3  or  a  libel  in  rem  for  violation  of  a  municipal  law. 4  In  case 
of  smuggling,  an  amendment  is  allowed,  to  show  that  a  foreign -owned 
vessel  is  liable  to  penalty  for  the  infraction  of  duty  laws. 5  An  informal 
libel  or  information  in  rem  may  be  amended  by  leave  of  court. 6  A  libel  in 
admiralty    may   be   amended  as   to   parties,?     by    striking   out   names   of 

ePierce  v.  West,  .3  Wash.  C.  C.  354,  1 6 Wilson  v.  Turberville,  2  Cranch 

Fed.  Cas.  No.  10,910.  C.  C.  27,  Fed.  Cas.  No.  17,844. 

TGavIord  v.  Ft.  W.  M.  &  C.  R.  Co.  iTFoote  v.    Silsbv,   1   Blatchf.   545, 

G  Biss.  2S6,  Fed.  Cas.  No.  5,284.  Fed.  Cas.  No.  4.918;  Yates  v.  Arden, 

sTreinaine  v.   Hitchcock,  23   Wall.  5    Cranch   C.    C.    526,   Fed.   Cas.   No. 

518,  23  L.  ed.  97.  18.126;  Davis  v.  Leslie,  1  Abb.  Adm. 

sSnow  V.  Tapley,  13  Off  Gaz.  548,  123.  Fed.  Cas.  No.  3,639. 

Fed.  Cas.  No.  13.147.  isWebster  Loom  Co.  v.  Higgins,  13 

lOCaster  v.  W^ood,   Bald.  289,   Fed.  Blatchf.  349,  954,  Fed.  Cas.  No.  17,341. 

Cas.  No.  2,505.  2 Adm.  Rule  24;  see  post,  §  1201. 

iiMorehead  v.   Jones,  3   Wall.   Jr.  sThe  Caroline  v.  United  States.  7 

306,  Fed.  Cas.  No.  9,791.  Cranch,  498.  3  L.  ed.  418;    The  Ed- 

i2Rnggles  V.  Eddv,  11  Blatchf.  524,  ward,  1  Wheat.  261,  4  L.  ed.  86. 

Fed.  Cas.  No.  12,118.  4The  Marianna  Flora,  11  Wheat.  1. 

isRoberts    v.    Buck,    6    Fish.    Pat.  6  L.  ed.  407;  Anon.  1  Gall,  22,  Fed. 

Cas.  325.  Fed.  Cas.  No.  11,897.  Cas.  No.  444. 

i4C]ifford  V.  Coleman,   13  Blatchf.  sL^nited    States    v.    The  Queen,  4 

210,    Fed.    Cas.    No.   2,894;    see   Gay-  Ben.  237.  Fed.  Cas.  No.  16.107. 

lord  V.  Fort  Wavne  &  Co.  6  Biss.  286,  6The  Caroline  v.  Lnited  States.  7 

F?d  Cas.   No.  5'.284.  Cranch,  498.  3  L.  ed.  418. 

islMeriwetlier  v.  Garrett.  102  U.  S.  '^The  Commander-in-Chief,  1  \v'al]. 

472,  20  L.  ed.  197.  43,  17  L.  ed.  609. 

730 


Procedure] 


FORMAL   DEFECTS  DISREGARDED. 


§  813  [k] 


libelants,^  as  to  name  of  the  pilot,9  or  by  discharging  the  master.io  But 
it  cannot  be  amended  by  striking  out  the  name  of  the  sole  libelant  and 
substituting  another.n  It  may  be  amended  by  striking  out  unnecessary 
and  impertinent  allegations,! 2  or  immaterial  averments  as  to  ownership  ;13 
or  by  adding  new  allegations; i*  or  a  new  cause  of  f orf eiture ;  1 »  though 
not  if  barred  by  the  statute  of  limitations.! 6  Averments  may  be  added,  as 
of  negligence;  17  or  an  averment  that  it  is  prosecuted  for  all  interested  who 
may  come  in  and  establish  their  rights.! s  An  amendment  will  be  allowed 
to  enable  a  party  to  obtain  a  contribution  out  of  damages  due  for  the  loss 
of  the  vessel.! 9  A  new  cause  of  action  may  be  introduced  by  amendment 
when  it  corresponds  with  the  original  bill; 20  but  it  cannot  be  amended  so 
as  to  change  from  a  libel  in  rem  to  a  libel  in  personam;!  or  so  as  to  in- 
crease the  amount  of  the  claim; 2  nor  to  show  that  a  party  was  formerly 
owner,  and  sold  with  a  covenant  to  discharge  all  liens.3  It  may  be  amended 
by  inserting  a  prayer  for  a  decree  against  a  party  liable,  even  after  a  de- 
cree in  rem  has  been  rendered.^  An  amendment  to  an  answer  will  be  al- 
lowed, though  the  effect  be  to  defeat  the  action  and  compel  libelant  to 
seek  another  forum. 5  A  supplemental  libel  alleging  new  matter,  and  an 
answer  thereto,  may  be  filed  after  appeal  in  the  discretion  of  the  court. 6 
District  courts,  in  the  exercise  of  a  sound  discretion,  may  allow  libels  to 
be  amended,  even  at  the  hearing;"  or  at  any  stage  of  the  proceedings ; s  till 
the  termination  of  the  cause.9     But  this  is  only  done  in  the  interest  of  sub- 


sTavlor  v.  Harwood.  Taney,  437, 
Fed.  Cas.  No.  13,794. 

sNewell  v.  Norton,  3  Wall.  257, 
18  L.   ed.   271. 

lOUnited  States  v.  The  Queen,  11 
Blatchf.  41 G.  Fed.  Cas.  No.  16.108. 

iiThe  Detroit.  1  Brown  Adm.  141, 
T'ed.  Cas.  No.  3,832. 

12 American  Ins.  Co.  v.  Johnson, 
Blatchf.  &  H.  9,  Fed.  Cas.  No.  303. 

isUnited  States  v.  The  v^ueen,  4 
Ben.  237,  Fed.  Cas.  No.  10.107. 

i4The  Edward,  1  Wheat.  261,  4 
L.  ed.  86. 

!5United  States  v.  Whiskey,  7 
Phila.  603,  Fed.  Cas.  No.  16.671. 

ifiUnited  States  v.  One  Hundred 
and  Twentv-three  Casks,  1  Abb.  U. 
•S.  573,  Fed.  Cas.  No.  15.943;  The 
Harmony,  1  Gall.  123,  Fed.  Cas.  No. 
6,081. 

iTThe  Deer,  4  Ben.  352,  Fed.  Cas. 
No.  3,737. 

18 American  Ins.  Co.  v.  Jolmson, 
Blatclif.  &  H.  9.  Fed.  Cas.  No.  303. 

i9The  C.  H.  Foster,  1   FeA.  733. 

2  0United  States  v.  One  Hundred 
and  Twenty-Three  Casks,  1  Abb.  U. 
S.  573,  Fed.  Cas.  No.  15,943. 


iThe  Young  America,  1  Brown 
Adm.  463,  Fed.  Cas.  No.  18.178. 

2Agnew  V.  Dorman,  Tanev,  386. 
Fed.  Cas.  No.  100. 

sTlie  Prindiville.  1  Brown  Adm. 
485,  Fed.  Cas.  No.  11.435. 

4The  Zenobia,  Abb.  Adm.  48,  Fed. 
Cas.  No.  18,208. 

sReppert  v.  Robinson.  Taney,  492, 
Fed.  Cas.  No.  11,703. 

eUnited  States  v.  One  Hundred 
and  Twentv-three  Casks,  1  Abb.  U. 
S.  573,  Fed."  Cas.  No.  15,943. 

TDavis  V.  Leslie.  1  Abb.  Adm.  123, 
Fed.  Cas.  No.  3.639;  Crawford  v. 
The  William  Penn,  3  Wash.  C.  C. 
484.  Fed.  Cas.  No.  3.373. 

8The  Hunter,  1  Ware.  249,  Fed. 
Cas.  No.  6.904;  Pettingill  v.  Dins- 
more.  2  Ware,  '^iz,  Fed.  Cas.  No. 
11.045;  Nevitt  v.  Clarke.  Ilcott,  316. 
Fed.  Cas.  No.  10,138;  The  Deer,  4 
Ben.  352,  Fed.  Cas.  No.  3,737;  The 
St.  John.  7  Blatchf.  220,  Fed.  Cas. 
No.   12.224. 

9The  Edwin  Post,  6  Fed.  206. 


(31 


§   S13   [I]  GENERAL    AND   MISCELLANEOUS    PROVISIONS.       [('o:1p   Fed. 

stantial  justice.io  A  libel  may  be  amended  in  the  circuit  court ;ii  and  a 
defect  in  the  signature  will  not  be  regarded  if  it  appears  it  was  verified. 12 
It  may  be  allowed  without  waiting  for  the  disposition  of  the  exceptions 
thereto.13  A  supplemental  libel  and  an  answer  thereto  may  he  liled  after 
appeal. 14  This  rule  applies  in  collision  cases; is  and  after  reversal  where 
there  is  a  want  of  a  substantial  averment  it  may  be  added; is  even  after  the 
case  has  been  remanded  from  the  Supreme  Court.i^  But  an  anu'iidiiient  in 
an  admiralty  case  before  the  court  of  appeals  cannot  introduce  a  new  sub- 
ject of  controversy.! 8 

[IJ     Amendment  of  judgments  and  decrees,  and  defects  therein. 

Judgments  may  be  corrected  after  the  end  of  the  term:  (1)  where  the 
necessity  for  correction  and  the  matter  from  which  it  is  to  be  made  appear 
upon  the  face  of  the  record;  (2)  where  justice  requires  a  correction  to  be 
made  from  matters  resting  in  the  recollection  of  the  judge  or  in  the  (!vidence 
aliunde.  In  the  former  case  notice  is  unnecessary;  in  the  latter  case  it  is 
necessary  if  it  rests  on  evidence  aliunde. 2  All  judgments,  decrees,  or 
orders  are  under  control  of  the  court  which  pronounces  them  during  the 
term  at  which  they  are  rendered,  and  may  be  set  aside,  vacated  or  modifieil.3 
But  amendments  to  judgments  or  decrees  cannot  l)e  made  except  as  io 
formal  defects: 4  as  where  the  entry  was  erroneously  made: 5  or  where  there 
is  a  verbal  mistake  of  the  clerk  in  using  a  siiperlluity  of  words  in  entering 
judgment:*'  or  where  by  a  misprision  of  the  clerk  the  judgment  had  not 
been  entered  according  to  the  declaration;"  or  where  the  clerk  had  omitted 
to  enter  judgment  allowing  interest  :**  or  if  a  judgment  by  confession  is 
entered  without  declaration  or  rule  to  plead; 9  or  if  made  by  only  one  of 
several  joint  defendants ;  1 0  or  if  entered  in  a  wrong  case;ii  or  if  made  by 

loPetlingill    v.   Dinsmore,   2  Ware.  26  L.   ed.   707:    Aetna    L.   Ins.   Co.   v. 

212,    Fed.    Cas.    Xo.    11.04.^:    Anon.    1  Board    of   Conimr.s.    70    Fed.    .i7.5.    25 

Gall.  22,  Fed.  Cas.  No.  444.  C.  C.  A.  94. 

iiThe  Sarah  Ann,  2  Sum.  206,  Fed.        -lAlhers   v.   Whitnev.    1    Storv,   .310, 

Cas.  No.  12.342:  Tlie  Morton,  1  Brown  Fed.  Cas.  No.  1,37. 
Adm.   1.37.   Fed.   Cas.   No.   9.S64.  -U'nited     States    v.    Bennett.    Holf. 

i^Hardy   v.  :\Ioore.   4   Fed.  843.  281,  Fed.  Cas.  No.  14,;i73, 

i:!Tlie  Western  Metropolis.  28  How.        eShaw    v.    Pvilrnad    Co.    101    U.   S. 

Pr.  283.  557,  25  L.  ed.   Sn2 :    P.nrnes  v,  Lee,  1 

i4The    Boston,    1    Sum.    328.    Fed.  Cranch     C.     C.     471,    Fed.    Cas,    No. 

Cas.  No.  1,673;  Lamb  v.  Parkman,  21  1,018. 
LaAV  Rep.  589.  'Woodward    v.    Brown,    13    Pet.    1, 

isTlie  Pennsylvania,  12  Blatchf.  67,  10  L.  ed.  31. 
Fed.  Cas.  No.  10,951.  ^Bank  v.  Wistar,  3   Pet.  431,  7  L. 

icThe    Anne    v.    United    States,    7  ed.    731. 
Cranch,  570,  3  L.  ed.  442.  sAult  v.  Elliot,  2  Cranch  C.  C.  372, 

I'The  Caroline  v.  United  States.  7  Fed.  Cas.  No.  655. 
Cranch,  496.  3  L.  ed.  417:  The  Anne,        loHver   v.   HA'att.   2   Cranch   C.   C. 

7  Cranch,  570.  3  L.  ed.  442;  The  Mary  633,  Fed.  Cas.   No.  6.976:    Newton  v. 

Ann,  8  Wheat.  380.  5  L.  ed.  641.        *  Weaver,  2  Cranch  C  .C.  685,  Fed.  C'S. 

isHouseman    v.    The    North    Caro-  No.    10,193:    see    Ringgold    v.    Elliot, 

Una.  15  Pet.  40,  10  L.  ed.  654.  2    Cranch    C.    C.    462,    Fed.    Cas.    No. 

20'Dell   V.   Reynolds,   70  Fed.   656,  11.844. 
17  C.  C.  A.  317.  iiPierce  v.  Turner,  1  Cranch  C.  C. 

3Bronson  v.  Schulten,  104  U.  S.  410.  433,  Fed.  Cas.  No.  11,148. 

732 


rrocecliire] 


FORMAL  DEFECTS  DISREGARDED. 


§  8i:;   [1] 


ail  attorney  by  mistake. 12  A  judgment  may  be  amended  by  striking  out 
<t  part  which  the  court  lias  no  authority  to  make. is  Any  clerical  error  may 
be  corrected  after  the  lapse  of  the  term;i4  as  by  making  it  payable  in  gold 
or  silver  coin.ia  Hut  a  judgment  or  decree  cannot  be  stricken  out  for  error 
of  law  after  the  lapse  of  the  term  at  which  it  is  rendered.is  However,  if 
the  judge  has  been  induced  to  enter  a  decree  by  false  representation  as  tt) 
its  character,  and  which  he  did  not  intend  to  enter,  the  decree  may  be  set 
aside  after  the  term.i^  if  irregularly  entered  it  may  be  set  aside.  1** 
Where  a  judgment  was  entered  in  vacation  the  court  properly  vacated  it  at 
the  next  term  and  entered  a  new  judgment  to  the  same  effect. 1 9  A  mis- 
lake  in  the  assessment  of  damages  has  been  corrected  at  a  subsequent 
term.2  0  Though  the  court  cannot  change  the  essential  parts  of  a  decree 
after  the  term  at  which  it  is  entered,  yet  it  may  subsequently  amend  the 
<lecree  as  to  the  mode  of  execution,  manner  of  sale,  time  of  publication,  and 
distribution  of  proceeds.  1  An  interlocutory  decree  is  always  open  to 
amendment  and  correction.^  The  rule  that  a  cause  may  not  be  reheard 
after  the  term  in  which  it  was  originally  decided  does  not  affect  a  proceed- 
ing in  anotlier  cause  to  review  the  original  suit.s  Where  an  order  has 
been  entered  that  the  bill  be  taken  pro  confesso,  defendant,  even  if  he  has 
entered  an  appearance,  is  not  entitled  to  notice  of  subsequent  application 
for  final  decree,  when  such  application  is  made  in  open  court. ^  The  power 
of  amendment  after  term  does  not  extend  to  the  correction  of  judicial 
erors.o  But  a  judgment  which  is  a  mere  nullity  may  be  then  vacated. « 
Omission  to  enter  judgment  on  one  of  two  pleas  is  curable  by  R.  S.  §  954;" 
so  also  is  an  omission  to  enter  judgment  on  demurrer. 8  Want  of  order 
for  default  judgment  is  a  mere  formal  defect. 9 


i2United  States  v.  Fearson.  5 
Cranch  C.  C.  95.  Fed.  Cas.  No.  15.- 
081 ;  Bank  v.  McKennev.  3  Cranch  C. 
C.  173.  Fed.  Cas.  Xo.  92(i. 

i3The  Hiram  Wood,  (i  Cliicaiio  L. 
N.  135. 

i4Scott  v.  Blaine.  Bald.  287.  Fed. 
Cas.  No.  12.525:  Brush  v.  Bobbins. 
3  McLean,  48(),  Fed.  Cas.  No.  2.059. 

i'''C'l)eang  Kee  v.  Tiiited  States,  3 
Wall.  320,  18  L.  ed.  72. 

icBrush  V.  Rol)l)ins,  3  INlcLean,  48G, 
Fed.  Cas.  No.  2.059 ;  Wood  v.  Luse,  4 
McLean.  2.54.  Fed.  Cas.  No.  17,950; 
Scott  v.  Blaine,  Bald.  287.  Fed.  Cas. 
No.  12.52i.>;  Doe  v.  Waterloo  Min.  Co. 
00  Fed.  G43:  Austin  v.  Rilev.  55  Fed. 
833:  Klever  v.  Seawall.  05' Fed.  373, 
12  C.  C.  A.  053;  Craven  v.  Canadian 
Pac.  Rv.  Co.  62  Fed.  170. 

I'United  States  v.  Williams.  67 
Fed.  384.  14  C.  C.  A.  440;  Fisher  v. 
Simon.  67  Fed.  387. 

isUnion    Bank    v.     Crittenden,     2 


Cranch  C.  C.  238.  Fed.  Cas.  No.  14,- 
354. 

19 Abraham  v.  Levy,  72  Fed.  124,  18 
C.  C.  A.  469. 

2  0Crooks  V.  Maxwell,  6  Blatchf. 
40S,  Fed.  Cas.  No.  3.415. 

iTurner  v.  I.  B.  &  W.  R.  Co.  8 
Biss.  3S0.  Fed.  Cas.  No.  14.2.59. 

2De  Florez  v.  Ravnolds,  8  Fed.  4.34. 
17   Blatchf.  430. 

S.Jackson  v.  Munks.  58  Fed.  596. 

4Austin   V.   Rilev,   55   Fed.  833. 

sElder  v.  Riclunond  O.  &  S.  M. 
Co.  19  U.  S.  App.  118,  .58  Fed.  5.36.  7 
C.  C.  A.  354. 

fiWood  V.  Luse.  4  McLean.  254,  Fed. 
Cas.  No.  17.950;  Harris  v.  Hardeman, 
14  How.  3.34.  14  L.  ed.  444. 

TMorsell  v.  Hall.  13  How.  212.  14 
L.  ed.  117. 

sTownsend  v.  -lennison.  7  How.  70(i. 
12  L.  ed.  880. 

sLinder  v.  Lewis.  I  Fed.  378. 


733 


§   813   [m]       GENERAL    AND    MISCELLANEOUS    PROVISIONS.       [Code   Fed. 

[mj     Formal  defects  on  appeal. 

There  is  a  specific  provision  of  the  Revised  Statutes  regarding  amend- 
irient  of  the  writ  of  error;  12  and  amendment  of  appeal  in  prize  cases. i"! 
R.  S.  §  954  forbids  reversal  for  objections  of  formal  or  technical  character 
first  taken  in  the  appellate  court. i^  Formal  defects  are  not  to  be  regarded 
as  matters  of  error;  is  but  should  be  disregarded  in  the  decision  of  the 
cause.16  A  mere  clerical  omissioniT  or  mistake  in  nameis  will  be  dis- 
regarded. Abuse  of  a  formal  conclusion  to  a  special  court  is  imraaterial.i^ 
Defects  of  form,  not  demurred  to,  are  »ot  reversible  error; 20  nor  is  a 
variance  between  averments  and  findings;!  nor  an  error  on  trying  issues, 
cmt  of  their  order.2  A  formal  defect  in  the  verdict  will  be  disregarded;  if 
it  is  otherwise  sufficient  to  sustain  the  judgment; 3  or  a  general  verdict  on 
distinct  issues. 4  It  is  immaterial  that  the  verdict  and  judgment  are  only 
on  one  demise  out  of  several. 5  So  if  a  declaration  contains  a  special  count, 
and  the  common  counts,  judgment  may  be  sustained  on  the  common 
counts.6  Other  cases  have  refused  to  reverse  where  there  was  an  omission 
to  join  issue  on  one  out  of  two  avowals  in  replevin; 7  or  an  omission  of  a 
similiter  ;S  or  omission  to  obtain  leave  to  file  an  amended  bill,  or  to  file  a 
replication. 9  An  omission  on  an  appeal  does  not  require  the  dismissal  of 
the  appeal,  but  the  court  may  aid  the  appeal  on  ternis.io 

[n]     Amendments  of  record  on  appeal. 

The  trial  court  may  supply  omissions  in  its  record  for  the  purpose  of 
showing  on  appeal  what  was  actually  done;  12  but  its  power  ceases  with  the 
taking  of  the  appeal.  Amendments  cannot  be  made  after  writ  of  error 
brought.  13     However,  an  order  allowing  an  appeal  may  be  amended  in  the 


12 Post,  §  1<)28. 

13 Post,  §  1333. 

i4Babbitt  v.  Burgess,  2  Dill.  169, 
Fed.   Cas.   No.  693. 

15  Smith  V.  Allyn,  1  Paine,  456, 
Fed.  Cas.  No.  13,064. 

isStockton  V.  Bishop,  4  How.  155, 

11  L.  ed.  918;   Taylor  v.  Benham,  5 
How.  277,  12  L.  ed.  151. 

i7Adams  v.  Law,  16  How.  149,  14 
L.  ed.  880;  Citizens  Bank  v.  Farwell, 
56  Fed.  572,  6  C.  C.  A.  24. 

IS  Conrad  v.  Griffey,  11  How.  480, 
13  L.  ed.  779;  Pacific  Bank  v.  Mixter, 
114  U.  S.  464,  29  L.  ed.  221,  5  Sup. 
Ct.  Rep.  944:  Crittenden  v.  Davis, 
Hemp.   96,   Fed.   Cas.  No.   3393b. 

i9Bank  of  Metropolis  v.  Gutt- 
schlick,   14  Pet.  27,  10  L.  ed.  335. 

2  0Ewing  v.  Howard,  7  Wall.  503, 
19  L.  ed.  295. 

1  Railroad  Co.  v.  Lindsay,  4  Wall. 
m:\  18  L.  ed.  328. 

2Townsend  v.  Jennison,  7  How.  706, 

12  L.   ed.   880;     Morsell    v.    Hall,   13 
How.  212,  14  L.  ed.  117. 


734 


sDowney  v.  Hicks,  14  How.  240,  14 
L.  ed.  404. 

4Roach  V.  Hillings,  16  Pet.  319,  10 
L.  ed.  979. 

5Van  Ness  v.  Bank,  13  Pet.  17,  10 
L.  ed.  38. 

6Bank  v.  Moss,  6  How.  31,  12  L. 
ed.  331. 

7Dermott  v.  Wallach,  1  Black.  96^ 
17  L.  ed.  50. 

sHager  v.  Thompson,  1  Black,  90,. 

17  L.  ed.  43. 

sClements  v.   Moore,   6   Wall.   299, 

18  L.  ed.  786. 

loDayton  v.  Lash,  94  U.  S.  112,  24 
L.  ed.  33;  see  Vansant  v.  Gas  Light 
Co.  99  U.  S.  213,  25  L.  ed.  2G5. 

i2Ex  parte  Buskirk,  72  Fed.  14,  !» 
C.  C.  A.  410;  Walton  v.  United 
States,  9  Wlieat.  651,  6  L.  ed.  182. 

isHoney  v.  Chicago,  etc.  Co.  82 
Fed.  774,  27  C.  C.  A.  262;  United 
States  V.  Hooe.  1  Cranch  C.  C.  116, 
Fed.  Cas.  No.  15,386;  Michigan  Ins- 
Bank  V.  Eldred,  143  U.  S.  298,  36  L. 
ed.  162,  12  Sup.  Ct.  Rep.  450. 


rrocedure] 


FORMAL  DEFECTS   DISREGARDED 


§   813   [o]' 


lower  court  where  the  appeal  is  not  perfected.it  The  Supreme  Court  has 
sustained  action  of  a  trial  court  in  permitting  at  an  ensuing  term,  the 
filing  of  the  evidence  and  the  charge  to  the  jury. is  In  the  appellate  court, 
amendments  may  be  made  by  consent;  16  though  the  Supreme  Court  views 
such  amendments  with  disfavor,  where  for  the  purpose  of  showing  t?te 
existence  of  jurisdiction ;  1 7  and  prefers  to  remand  the  cause  for  that  pur- 
pose.18  Error  in  taking  an  appeal  in  the  name  of  a  firm  instead  of  the 
individual  members  may  be  cured  by  amendment  ;19  if  the  names  appear 
elsewhere  in  the  record.  Name  of  a  new  administrator  may  be  added  by 
amendment. 2  0  A  clerical  error  in  the  clerk's  transcript  may  be  amended 
without  returning  the  record  or  a  certiorari.i  The  appellate  court  may 
correct  errors  in  the  docket  title  of  a  causes  or  an  apparent  error  in  the 
amount  of  the  recovery. 3  Even  the  pleadings  may  be  amended  on  appeal 
if  justice  requires  it.*  But  the  Supreme  Court  will  not  correct  errors  or 
omissions  in  the  bill  of  exceptions.5 

[oj     Time  of  amendment. 

The  first  portion  of  the  section  requiring  formal  defects  to  bo  disregard- 
ed and  amended  by  the  court,  obviously  applies  at  all  stages  of  the  pro- 
ceeding," including  appeal.  Hence  verdicts,  judgments  or  decrees  and  the 
record  on  appeal  are  amendable  for  formal  defects.  But  while  the  last 
portion  of  the  section  declares  a  pleading  or  process  amendable  "at  any 
time"  there  is  authority  for  holding  that  this  means  at  any  time  prior  ta 
judgment  or  decree,  when  the  amendment  would  involve  more  than  a 
merely  formal  defect. 8  These  cases  however,  would  seem  to  refer  to 
amendment  of  pleadings  and  not  to  negative  the  existence  of  authority  to 
amend  process   issued  after  judgment  for  its  enforcement.     The  right  to 


i4Aspen  M.  Co.  v.  Billings,  150  U. 
S.  31,  37  L.  ed.  986,  14  Sup.  Ct. 
Rep.  4. 

isKerr  v.  South  P.  Comrs.  117  U. 
S.  383,  29  L.  ed.  924,  6  Sup.  Ct.  Rep. 
801. 

16 Fletcher  v.  Peck,  6  Cranch,  127, 
3  L.  ed.  162;  Hudgins  v.  Kemp,  18 
How.  534.  15  L.  ed.  512;  Warren  v. 
Moody,  9  Fed.  674;  United  States  v. 
Hopewell,  51  Fed.  800.  2  C.  C.  A. 
510;  Fitchburg  v.  Nichol,  85,  Fed. 
870,  29  C.  C.  A.  464. 

I'Udall  v.  Steamship  Ohio,  17  How. 
18,  15  L.  ed.  43. 

isKennedy  v.  Georgia  St.  Bank, 
8  How.  611,  12  L.  ed.  1209. 

isMoore  v.  Simonds,  100  U.  S. 
146,  25  L.  ed.  590;  United  States  v. 
Schoverling.  146  U.  S.  82.  36  L.  ed. 
893,  13  Sup.  Ct.  Rep.  24;  In  re 
Woerishoflfer,  74  Fed.  916,  21  C.  C. 
A.  175. 


20Walton  V.  Marietta  C.  Co.  157 
U.  S.  347,  39  L.  ed.  727,  15  Sup.  Ct. 
Rep.  628. 

iWoodward  v.  Brown,  13  Pet.  1, 
10  L.  ed.  31. 

2United  States  v.  Jahn.  155  U.  S. 
Ill,  39  L.  ed.  87,  15  Sup.  Ct.  Rep. 
39. 

sMills  V.  Scott,  99  U.  S.  30,  25  L. 
ed.  294. 

4 Jones  V.  Meehan,  175  U.  S.  28.  44 
L.  ed.  60.  20  Sup.  Ct.  Rep.  1 ;  Wiggins 
F.  Co  V.  Ohio.  etc.  Rv.  142  U.  S.  415, 
35  L.  ed.  1055,  12  Sup.  Ct.  Rep.  188. 

sStimpson  v.  West  C.  R.  R.  3  How. 
556.  11  L.  ed.  722;  Gavler  v.  Wilder, 
10  How.  509.  13  L.  ed."517. 

TWalden  v.  Bodley,  14  Pet.  150, 
10  L.  ed.  398:  Koene  v.  Whontlev,  4 
Phila.  157  Fed.   Cas.  No.  7.644. 

'•Nelson  v.  Barker.  3  McLean.  379, 
Fed.  Cas.  No.  10.101 :  Siritli  v.  Jack- 
son, 1  Paine,  486,  Fed.  Cas.  No.  13,- 
065. 


735 


§   813    [p]         GENERAL    AXD    MISCELLANEOUS    PROVISIONS.       [Code   Fed. 

iUiu'Hd  u  pleading  dining,  or  at  the  close  of  the  trial  or  hearing  or  after 
verdict,  is  well  settled.9  But  the  court  has  a  discretion  to  deny  amend- 
ments offered  at  that  time  because  too  late,  when  the  ends  of  justice  do  not 
require  their  allowance ;io  or  to  disallow  them  from  failure  to  exercise 
proper  diligence. n  Thus,  leave  to  file  a  verified  denial  raising  new  is.sues 
as  to  the  execution  of  the  instrument  in  suit  has  been  denied  at  the  trial, 
where  to  the  suprise  and  injury-  of  the  plaintiff.12  So.  after  reversal,  the 
trial  court  may  and  is  often  directed  to  allow  amendment  of  pleadings. is 
But  an  amendment  of  an  intervenor's  claim  for  personal  injuries,  setting  up 
a  distinct  ground  of  negligence,  is  too  late,  after  a  master  has  finished  a 
liearing  and  is  preparing  his  report,  i*  A  commissioner  may  not  amend  the 
complaint  or  warrant  in  extradition  or  supply  defects  by  his  certificate, 
after  the  case  is  closed  and  certorari  is  served  on  him.i5 

[pj     Conditions  as  to  costs  and  continuance. 

It  is  usual  to  make  payment  of  costs  a  condition  of  the  allowance  of 
an  amendment.  But  where  no  fault  is  imputable  to  the  amending  party.! v 
or  there  was  an  agreed  statement  of  facts,is  costs  have  been  refused. 
Payment  of  costs  is  not  a  condition  precedent  unless  made  so  by  order.is 
Where  an  amendment  by  plaintiff  materially  varies  the  line  of  the  defense 
plaintiff  may  be  required  to  pay  all  accrued  costs.20  ^^liere  the  defend- 
ant misled  the  plaintiff",  leave  to  amend  the  plea  will  be  given  only  on  pay- 
ment of  costs;!   so  after  plea  of  misnomer;?   or  on  leave  to  substitute  a 


sGarland  v.  Davis,  4  How.  lol,  11 
L.  ed.  907;  Clark  v.  Sohier.  1  Wood. 
&  M.  368,  Fed.  Cas.  No.  2.835:  Mack 
V.  Porter,  72  Fed.  243,  18  C.  C.  A. 
527:  Battle  v.  ilutual  L.  I.  Co.  10 
Blatchf.  407.  Fed.  Cas.  Xo.  1.10!); 
Xeale  v.  Neales.  9  Wall,  1.  19  L.  ed. 
590;  Bamberger  v.  Terry.  103  U.  S. 
40,  26  L.  ed.  317;  Shuniacher  v.  St. 
Louis,  etc.  R.  R.  39  Fed  181;  Baker 
v.  Barber  A  Co.  92  Fed.  122:  Bowden 
v.  Burnham.  59  Fed.  755.  8  C.  C.  A. 
248. 

loSee  Clark  v.  Mavfield.  3  Cranch 
C.  C.  353.  Fed.  Gas.  Xo.  2,858 ;  Smith 
V.  Barker.  3  Day.  312.  Fed.  Cas.  Xo. 
13,013;  Lanning'v.  Dolph.  4  Wash.  C. 
C.  624.  Fed.  Cas.  No.  8.073;  Bullock 
V.  Van  Pelt,  Bald.  463,  Fed.  Cas.  Xo. 
2.131  :  Postmaster  General  v.  Ridg- 
way,  Gilp,  135,  Fed.  Cas.  Xo.  11,313. 

11  Cross  V.  Morgan,  6  Fed.  241. 

!2Benedict  v.  ^Mavnard,  6  McLean, 
21.  Fed.  Ca-s.  Xo.  l".296. 

i3ln  re  Sanford  F.  &  T.  Co.  160 
I'.  S.  247.  40  L.  ed.  414.  16  Sup.  Ct. 
Rep.  391;  Russell  v.  Clark,  7  Cranch, 
69,  3  L.  ed.  272;  Caldwell  v.  Taggart, 
4  Pet.  190.  7  L.  ed.  828. 


i4('lvde  V.  Richmond,  etc.  R.  R.  59. 
Fed.  394. 

i5Ex  parte  Lane.  6  Fed.  .34. 

!"Lanning  v.  Dolph.  4  Wash.  C.  C. 
624.  Fed.  Cas.  Xo.  8.073. 

isHechsclier  v.  Binnev.  3  Wood.  & 
M.  333.  Fed.  Cas.  Xo.  6*316. 

!9\Vigfield  V.  Dver.  1  Cranch  C.  C. 
405.  Fed.  Cas.  Xo.'l7.622;  Wheaton  v. 
Love.  1  Cranch  C.  C.  451.  Fed.  Cas. 
Xo.  17.485;  Butts  v.  Chapman,  1 
Cranch  C.  C.  570.  Fed.  Cas.  Xo.  2.257. 

20Wright  V.  HoUingsworth.  1  Pet. 
165.  7  L.  ed.  97;  (ieorgetown  v. 
Beatty.  1  Cranch  C.  C.  2.34.  Fed.  Cas. 
Xo.  .5.344:  Ferris  v.  Williams.  1 
Cranch  C.  C.  281,  Fed.  Cas.  Xo.  4,749; 
Paven  v.  Hodgson,  1  Cranch  C.  C. 
.508,  Fed.  Cas.  Xo.  10,853;  Elliott  v. 
Holmes,  1  McLean.  466,  Fed.  Cas.  No. 
4.392;  Pierce  v.  Strickland.  2  Story, 
292,  Fed.  Cas.  X'o.  11.147:  Fiedler  V. 
Carpenter,  2  Wood.  &  M.  211.  Fed. 
Cas.  No.  4.759:  Sanders  v.  Hamil- 
ton, 2  Hayw.  282,  Fed.  Cas.  No.  12,294. 

lAnoiivmous.  2  Wash.  C.  C.  270. 
Fed.  Cas".  No.  476. 

2Paven  v.  Hodgson,  1  Cranch  C.  C. 
.iOS,  Fed.  Cas.  No.   10,853. 

3G 


I 


Procedure] 


FORMAL  DEFECTS  DISREGARDED. 


§    813    [q] 


general  denial.^  An  amendment  maj'^  be  allowed  with  the  costs  of  tht- 
terra  only;*  or  the  party  applying  may  be  required  to  pay  the  expenses  ot 
the  adverse  party. 5  An  amendment  varying  the  amount  of  damages  was 
allowed  after  verdict  on  payment  of  costs  and  consent  to  a  new  trial. tJ 
If  a  material  amendment  is  allowed,  the  opposite  party  may  have  a  con- 
tinuance;" and  if  defendant  amend  his  plea  plaintiff  may  have  a  continu- 
ance and  costs  also;8  or  his  option  between  a  continuance  and  costs; 9  or 
defendant  may  be  required  to  pay  the  costs  of  the  term;io  or  all  costs  up 
to  the  time  of  filing  the  amendment.! i  Where  amendment  is  allowed  at 
the  close  of  the  trial,  the  court  must  determine  whether  the  submission  of 
the  cause  ought  not  to  be  set  aside.i2 

[q]     Discretion  of  court. 

The  allowance  of  amendments  rests  in  the  sound  discretion  of  the  court.i3 
While  they  are  usually  allowed  with  liberality,!*  this  is  not  so  true  of 
actions  for  penalties  or  forfeitures.!  5  They  should  only  be  allowed  in 
furtherance  of  justice; is  as,  to  prevent  part  of  plaintiff's  remedy  from  being 
cut  off.! 7  When  allowed  at  the  close  of  the  trial,  the  court  must  determine 
whether  the  submission  of  the  cause  ought  to  be  vacated.! 8  Since  the 
allowance  of  amendments  is  discretionary,  a  refusal  to  allow  is  not  review- 


3Krouse  v.  Sprogell,  1  Cranch  C.  C. 
78,  Fed.  Cas.  No.  7.940;  see  Milburne 
V.  Kearnes,  1  Cranch  C.  C.  77,  Fed. 
Cas.  No.  9,543. 

^Greeley  v.  Smith,  3  Story,  76,  Fed. 
Cas.  No.  5,747. 

sUnited  States  v.  Batchelder,  9 
Int.  Rev.  Rec.  98,  Fed.  Cas.  No.  14,- 
541. 

sElting  V.  Campbell,  5  Blatchf. 
183,  Fed.  Cas.  No.  4,422. 

TSchnertzell  v.  Purcell,  1  Cranch 
C.  C.  246.  Fed.  Cas.  No.  12.472; 
Georgetown  v.  Beaty,  1  Cranch  C. 
C.  234,  Fed.  Cas.  No.  5,344:  Elliott 
V.  Holmes,  1  McLean,  46G,  Fed.  Cas. 
No.  4,302;  Walker  v.  Johnson.  2  INIc 
Lean,  256,  Fed.  Cas.  No.  17,075; 
Wyatt  V.  Harden,  Hemp.  17,  Fed. 
Cas.  No.  18,  106a;  LTnited  States  v. 
Whiskey,  7  Phila.  603,  Fed.  Cas.  No. 
16.671. 

«Semmes  v.  O'Neale,  1  Cranch  C. 
C.  246,  Fed.  Cas.  No.  12,654;  Mar- 
steller  v.  McLean,  1  Cranch  C.  C. 
550,  Fed.  Cas.  No.  9,138;  Short  v. 
Wilkinson,  2  Cranch  C.  C.  22,  Fed. 
Cas.  No.  12.810. 

f'Milburne  v.  Kearnes,  1  Cranch  C. 
C.  77.  Fed.  Cas.  No.  9.543. 

!OKrouse  v.  Sprogell,  1  Cranch  C. 
C.  78,  Fed.  Cas.  No.  7,940. 


iiSemmes  v.  O'Neale,  1  Cranch  C. 
C.  246.  Fed  Cas.  No.  12,654;  Mar- 
steller  v.  McLean,  1  Cranch  C.  C.  550, 
Fed.  Cas.  No.  9,138;  Short  v.  Wilkin- 
son, 2  Cranch  C.  C.  22,  Fed.  Cas.  No. 
12,810:  Anonymous,  2  Wash.  C.  C. 
270,  Fed.  Cas.  No.  476. 

!2Bamberger  v.  Terry,  103  U.  S.  40, 
26  L.  ed.  317. 

!  3 Wright  V.  Hollingsworth,  1  Pet, 
165,  7  L.  ed.  97;  United  States  v. 
Buford,  3  Pet.  12,  7  L.  ed.  585;  Ex 
parte  Bradstreet.  7  Pet.  634.  8  L.  ed. 
810;  Walden  v.  Craig,  9  Wheat.  576, 
6  L.  ed.  164;  Murphy  v.  Stewart,  2 
How.  263.  11  L.  ed.  261;  Stevens 
Adm.  V.  Nichols.  157  U.  S.  370,  39  L. 
ed.  737,  15  Sup.  Ct.  Rep.  640;  Phillip, 
etc.  Co.  V.  American  I.  Co,  77  Fed. 
138,  23  C.  C.  A.  89;  Jefferson  v.  Bur- 
hans.  85  Fed.  924,  29  C.  C.  A.  487. 

I'tSupra,  note[a]. 

!5United  States  v.  Batchelder,  9 
Int.  Rev.  Rec.  98,  Fed.  Cas.  No.  14,- 
546. 

!6Eberly  v.  Moore,  24  How.  158,  16 
L.  ed.  614;  Bamberger  v.  Terry,  103 
U.  S.  43,     26  L.  ed.  318. 

!  7 Wilbur  V.  Abbott,  6  Fed.  817. 

!8Bamberger  v.  Terry,  103  U.  S. 
40,  26  L.  ed.  317. 


Fed.  Proc. — 47. 


737 


§   814  GENERAL   AND   MISCELLANEOUS   PROVISIONS.      [Code  Fed. 

able  on  appeal  or  writ  of  error; is  unless  there  has  been  an  abuse  of  dis- 
cretion.2o 

§  814.     Effect  of  death  of  party  before  final  judgment — revivor. 

When  either  of  the  parties,  whether  plaintiJff,  or  petitioner,  or  de- 
fendant, in  any  suit  in  any  court  of  the  United  States,  dies  before 
final  judgment,  the  executor  or  administrator  of  such  deceased  party 
may,'^'^^  in  case  the  cause  of  action  survives  by  law,"^*^^  prosecute  or 
defend  any  such  suit  to  final  judgment.  The  defendant  shall  an- 
swer accordingly ;  and  the  court  shall  hear  and  determine  the  cause 
and  render  judgment  for  or  against  the  executor  or  administrator, 
as  the  case  may  require.  And  if  such  executor  or  administrator, 
having  been  duly  served  with  a  scire  facias^®^  from  the  office  of  the 
clerk  of  the  court  where  the  suit  is  depending,  twenty  days  before- 
hand, neglects  or  refuses  to  become  party  to  the  suit,  the  court 
may  render  judgment  against  the  estate  of  the  deceased  party,  in 
the  same  manner  as  if  the  executor  or  administrator  had  voluntarily 
made  himself  a  party.  The  executor  or  administrator  who  becomes  a 
party  as  aforesai^d  shall,  upon  motion  to  the  court,  be  entitled  to 
a  continuance  of  the  suit  until  the  next  term  of  said  court. '^^^''^^^ 

R.  S.  §  955,  U.  S.  Comp.  Stat.  1901,  p.  697. 

[a]     Scope  and  construction  of  sections. 

The  common  law  rule  was  that  death  of  party  before  judgment  abated 
the  suit.2  R.  S.  §  955,  originally  part  of  §  31  of  the  judiciary  act  of  i7S9,3 
provides  that  the  cause  shall  proceed  by  or  against  the  personal  repre- 
sentative in  all  cases  in  which  the  "cause  of  action  survives  by  law."* 
Under  that  section  death  of  a  party,  if  the  action  survives,  does  not  de- 
termine the  suit,5  nor  produce  any  change  in  the  rights  of  the  parties. 6 
The  revivor  is  a  mere  continuance  of  the  original  suit."  The  action  must 
however,  have  been   actually  commenced.     If  complaint  is  not  filed  until 

isWalden  v.  Craig,  9  Wheat.  576,  44  L.  ed.  1138,  20  Sup.  Ct.  Rep.  951; 

6  L.   ed.   164;    United   States   v.   Bu-  that  above  section  applies  only  to  ac- 

ford,  3  Pet.  31,  32,  7  L.  ed.  592;  Ex  tions  at  law.  Brown  v.  Fletcher,  140 

parte    Bradstreet,    7    Pet.    634,   8    L.  Fed.  639. 

ed.  810;     Tilton  v.  Cofield,  93  U.  S.  sClark  v.  Matthewson,  12  Pet.  171, 

166,  23  L.  ed.  860;  Ayers  v.  Watson,  9  L.  ed.  1041. 

137  U.  S.  585,  34  L.  ed.  803.  11   Sup.  eQreen  v.  Watkins,  6  Wheat.  263, 

Ct.  Rep.  201.  264,  5.  L.  ed.  256. 

20Mandeville  v.  Wilson,  5  Cranch,  '^Clark  v.  Matthewson,  12  Pet.  172, 

17,  18,  3  L.  ed.  24.  9  L.  ed.  1041  ;Fitzpatrick  v.  Domingo, 

2Green  v.  Watkins,  6  Wheat.  262,  4  Woods.   103.   14  Fed.  217;   Shirley 

5  L.  ed.  256.  v.  Waco   Tp.  Ry.   4  Woods,  414,   13 

sActSept.  24,  1789,  §  31,  1  Stat.  90.  Fed.  707;  Jones  v.  Andrews,  10  Wall. 

4Ex  parte  Connaway,  178  U.  S.  430,  335,  19  L.  ed.  9S7. 

738 


Procedure]  EFFECT    OF    DEATH    OP    PARTY.  §  814   [c] 

after  plaintiff's  death,  the  entire  proceeding  is  a  nullity. 8  In  States  where 
an  action  is  commenced  by  the  filing  of  a  complaint,  a  case  is  deemed  pend- 
ing within  this  section,  if  the  complaint  is  filed  before  death,  though  not 
served. 9  The  section  applies,  a  fortiori,  if  there  has  been  service  of 
process]  10  and  at  all  subsequent  stages  of  the  cause  even  after  verdict, n  if 
prior  to  final  judgment.  12  It  applies  to  removed  cases. is  Death  of  a  party 
after  final  judgment  so  far  as  affecting  appeal ;14  the  right  to  execution; is 
and  death  while  appeal  is  pending,i6  are  governed  by  other  provisions  of 
law.  But  death  after  execution  sale  does  not  abate  the  proceeding  or  pre- 
vent the  giving  of  a  deed.i"  The  Equity  Rules  also  treat  of  the  subject 
of  bills  of  revivor.  18  The  effect  of  death  of  bankrupt  or  trustee  is  also 
treated  elsewhere.  1 9  There  is  no  provision  in  the  equity  rules  or  practice 
for  compulsory  revival  by  the  defendant  after  death  of  complainant. 20 

[b]  Section  not  applicable  to  real  actions  or  in  admiralty. 

Since  the  section  provides  for  appearance  by  executor  or  administrator 
and  not  the  heirs,  the  Supreme  Court  early  decided  that  it  refers  only  to 
personal  and  not  real  actions. 2  Hence  where  complainant  in  a  real  action 
in  equity  dies,  a  supplemental  bill  and  not  a  bill  of  revivor  is  the  proper 
proceeding; 3  and  revivorship  of  a  real  action  at  law  is  governed  by  the 
law  of  the  State  and  not  by  R.  S.  §  955.4  A  bill  of  revivor  cannot  be  filed 
by  a  devisee  or  assignees  since  he  is  not  the  personal  representative,  but  a 
transferee.  It  has  been  held  also  that  R.  S.  §  955  does  not  relate  to  ad- 
miralty causes.  6  The  mode  of  bringing  in  the  decedent's  representative  in 
common  law  causes,  is  governed  in  general  by  State  law.T 

[c]  The  personal  representative — continuance — pleadings. 

The  section  is  intended  to  permit  a  personal  representative  who  might 
originally  have  brought  the  suit,  to  continue  it.     It  does  not  permit  one 

sHarter  v.  Twohig,  158  U.  S.  448,  isPost.  §  960. 

39  L.  ed.  1049,  15  Sup.  Ct.  Rep.  S8.3.  isPost,  §  2248. 

9Ex    parte    Connaway,    178    U.    S.  20Brown  v.  Fletcher.  140  Fed.  (139, 

430,  44  L.  ed.  1138.  20  Sup.  Ct.  Rep.  23racker  v.  Thomas,  7  Wheat.  5.30, 

951.  5  L.  ed.  515. 

loMandevdlle  v.  Riggs,  2  Pet.  487,  ^Currell  v.  Villars,  72  Fed.  331. 

7  L.  ed.  493.  ^McArthur  v.  Williamson,  45  Fed. 

iiBaldwin     v.    Lamar,    Chase   432,  155. 

Fed.  Cas.  No.  800.  ssiack  v.   Wolcott,   3   Mason.    508, 

i2Hatch  V.  Eustis,  1  Gall.  160,  Fed.  Fed.  Cas.  No.  12.932;  Metal  S.  Co.  v. 

Cas.  No.  6,207.  Crandall,    18    0.    G.    1531,    Fed.    Cas. 

l3Baltimore,    etc.    Rv.   v.    Joy,    173  Xo.  9.493c. 

U.  S.  226,  43  L.  ed.  677.  19  Sup.  Ct.  eThe  Jas.   A.   Wright,  10   Blatchf. 

Rep.  387;   Y-ta-tah-wah  v.  Rebcock,  IGO.    Fed.   Cas.    No.   7,191.      But    see 

105  Fed.  265.  The    Ship   Norway,    1    Ben.  493.   Fed. 

14 Post.  §   1895.  Cas.  No.  10.357;  The  M.  B.  Roper.  106 

isSee  Ransoin  v.  Wiliam^,  2  Wall.  Fed.    741,    45    C.    C.   A.    578;    United 

313,  17  L.  ed.  803;  post.  §  — .  States  v.  Sampson,  187  U.  S.  436,  47 

lePost,  §   1896.  L.  ed.  248.  23  Sup.  Ct.  Rep.  216. 

iTlnslev  V.   United    States,   150   U.  '^^Martin  v.  Baltimore,  etc.  Rv.  151 

S.   516.  37   L.   ed.   1163,   14   Sup.   Ct.  U.  S.  693,  38  L.  ed.  311,  14  Sup.  Ct 

Rep.  158.  Rep.  533. 

739 


§  814    [d]        GENEREL   AND   MISCELLANEOUS   PROVISIONS.        [Code  F'ed- 

who  has  not  obtained  letters  testamentary  or  properly  qualified  himself  to 
sue,  thus  to  revive  an  action. 9  He  must  show  that  he  is  executor  or  ad- 
ministrator and  produce  his  letters  if  required,  lo  The  citizenship  of  th« 
personal  representative  is  immaterial,  though  the  original  ground  of  juris- 
diction was  diverse  citizenship  in  the  parties. n  He  is  entitled  to  a  con- 
tinuance but  may  waive  the  right,  and  it  not  available  to  the  other 
party.i2  The  proceedings  after  the  revivor  are  exactly  as  though  the  repre- 
sentative were  a  voluntary  party  to  the  suit;i3  and  he  may  plead  only 
what  his  decedent  might  have  pleaded. 1 4  The  State  law  as  to  mode  of 
bringing  in  the  representative  is  followed  by  the  Federal  court  in  common 
law  causes. 15  The  section  does  not  apply  to  a  devisee  or  assignee,  or  heir 
of  decedent,  but  merely  to  the  personal  representative,  and  to  personal 
actions. 16 

[d]     By  what  law  survivorship  of  action  is  determined. 

This  section  does  not  attempt  to  declare  what  actions  survive. 1 7  With- 
out attempting  to  review  the  authorities  deciding  that  question,  it  is  im- 
portant to  determine  by  what  law  it  is  governed.  The  survivability  of  a 
'Cause  of  action  is  a  matter  of  substantive  law,  and  to  be  ascertained  as  such, 
while  the  revival  of  a  suit  is  mere  matter  of  procedure. is  Bearing  in  mind 
the  principles  discussed  in  another  portion  of  this  work. 1 9  it  is  plain  that 
where  a  cause  of  action  is  founded  upon  State  law  and  within  the  scope  of 
a  State's  legislative  powders,  the  question  of  its  survivorship  is  determined 
by  State  law  as  much  in  the  Federal  as  in  the  local  tribunals. 20  In  the 
absence  of  State  statute  the  common  law  is  resorted  to  in  such  a  case,i 
but  it  is  conceived  that  the  common  law  referred  to  bv  the  cases  is  the 


oIvropiT  V.  Poth,  19  Fed.  200;  see 
Mason  v.  Hartford,  etc.  R.  R.  10  Fed. 
337;  Melius  v.  Thompson,  1  CliflF.  125, 
Fed.  Cas.  No.  9,405. 

lOWilson  V.  Codman,  3  Cranch,  193, 
2  L.  ed.  409. 

iiClarke  v.  Matthewson,  12  Pet. 
171,  9  L.  ed.  1041;  Hardenbergh  v. 
Rav,  151  U.  S.  118,  38  L.  ed.  93,  14 
Sup.  Ct.  Rep.  305. 

isGriswold  v.  Hill,  1  Paine,  483, 
Fed.  Cas.  No.  5,834;  Wilson  v.  Cod- 
man,  3  Cranch,  193,  2  L.  ed.  408. 

isHatch  V.  Eustis,  1  Gall.  IGO,  Fed. 
Cas.  No.  6.207. 

i4McKnight  v.  Craig,  6  Cranch, 
183,  3  L.  ed.  193. 

isMartin  v.  Baltimore,  etc.  R.  R. 
151  U.  S.  693,  38  L.  ed.  318,  14  Sup. 
Ct.  Rep.  533. 

isSupra,  note[b]. 

1 ''Martin  v.  Baltimore,  etc.  R.  R. 
151  U.  S.  673,  38  L.  ed.  311,  14 
Sup.  Ct.  Rep.  533;  Patton  v.  Bradv, 
184  U.  S.  612,  46  L.  ed.  71'6,  22  Sup. 
Ct.  Rep.  493. 


isSchreiber  v.  Sharpless,  110  U.  S. 
76,  80,  28  L.  ed.  65,  3  Sup.  Ct.  Rep. 
423;  Warren  v.  Furstenlieim,  35  Fed. 
691,  1  L.R.A.  40;  Sanders  v.  Louis- 
ville &  N.  R.  R.  Ill  Fed.  70S,  49  C. 
C.  A.  565;  Martin  v.  Baltimore,  etc. 
R.  R.  151  U.  S.  692,  38  L.  ed.  318,  14 
Sup.  Ct.  Rep.  541.  But  see  Jones  v. 
Van  Zandt,  4  jNfcLean,  599,  Fed.  Cas. 
No.  7,503. 

19 Ante.  §  10. 

20Sanders  v.  Louisville,  etc.  R.  R. 
Ill  Fed.  708,  49  C.  C.  A.  565;  Bal- 
timore, etc.  Ry.  V.  Joy,  173  U.  S.  229, 
43  L.  ed.  677,  19  Sup.  Ct.  Rep.  387; 
Y-ta-tah-wah  v.  Rebock,  105  Fed. 
265;  Martin  v.  Baltimore,  etc.  R.  R. 
151  U.  S.  692,  38  L.  ed.  318,  14  Sup. 
Ct.  Rep.  541;  Witters  v.  Foster,  23 
Blatclif.  457.  26  Fed.  737;  Warren  v. 
Furstcnheim,  .35  Fed.  691,  1  L.R.A. 
40;  Barker  v.  Ladd,  3  Sawy.  44,  Fed. 
Cas.  No.  990;  Hatfield  v.  Bushnell, 
1  Blatchf.  393,  Fed.  Cas.  No.  6,211. 

iHenshaw  v.  Miller,  17  How.  218, 
15  L.  ed.  222;  United  States  v. 
-10 


riocedure]  DEATH  OF  ONE  OF  SEVERAL  PARTIES.  §   815 

coninioii  law  of  the  particular  State  and  not  a  common  law  of  the  nation. 2 
Where  the  cause  of  action  is  based  on  Federal  law,  Congress  has  full  power 
to  declare  its  survivability.  Congress  however,  has  passed  no  such  law  and 
the  question  of  survivability  arose  some  years  ago  in  a  qui  tam  suit  for  a 
penalty  under  the  Federal  copyright  law.  By  the  law  of  Pennsylvania, 
where  the  case  arose,  suits  for  penalties  survived,  but  at  common  law  it 
was  otherwise.  The  court  applied  the  common  law  rule  although  counsel 
argued  that  R.  S.  §  721,3  adopting  State  laws  as  rules  of  decision,  should 
govern. 4 

[ej     Scire  facias. 

Another  provision  of  law  confers  general  power  to  issue  scire  facias  and 
its  general  nature  and  uses  are  elsewhere  considcred.»  The  personal 
representative  may,  if  he  chooses,  come  in  instanter,  and  scire  facias  is  then 
unnecessary.  6  As  no  period  of  time  is  fixed  for  his  appearance,  if  the  other 
party  fails  to  summon  him  laches  cannot  be  predicated  upon  mere  lapse  of 
time. 7  But  a  petition  to  revive  may  be  denied  after  great  lapse  of  time 
for  lack  of  diligence  ;S  and  where  barred  I)}'  statute. 9  However,  a  reason- 
able time  to  revive  will  always  be  allowed.io 

§  815.     Death  of  one  of  several  parties. 

If  there  are  two  or  more  plaintiffs  or  defendants,  in  a  suit  Avhere 
the  cause  of  action  survives  to  the  surviving  plaintiff  or  against  the 
surviving  defendant,  and  one  or  more  of  them  dies,  the  writ  or  ac- 
tion shall  not  be  thereby  abated ;  but,  such  death  being  suggested 
upon  the  record,  the  action  shall  proceed  at  the  suit  of  the  surviv- 
ing plaintiff  against  the  surviving  defendant. 
R.  S.  §  956  U.  S.  Comp.  Stat.  1901,  p.  697. 

R.  S.  §  955  and  §  95G  originally  constituted  §  31  of  the  judiciary  act  of 
1789;  12  and  are  modeled  after  an  English  statute.is  There  are  however, 
important  differences  between  the  foregoing  provision  and  R.  S.  §  955.  The 
latter  provided  for  revivorship  of  the  suit  by  or  against  decedent's  executor 

Daniel,    6    How.    11,    12   L.    cd.    323;  Cas.  No.  10.357:   Siiiunons  v.  ^Morris, 

Patton  V.   Brady,   184  U.   S.   612,  46  109  Fed.  707. 

L.  ed.  710,  22  Sup.  Ct.  Rep.  493.  sMcArthur  v.  Williamson.  45  Fed. 

2See  ante.  §  13,  and  see  the  case  of  154:    Simmons    v.    Morris.    109    Fed. 

Bucher  v.   Cheshire  R.  R.   125  U.   S.  707:    Goodvear   D.    V.   Co.   v.   White, 

584,  31  L.  ed.  795,  8  Sup.  Ct.  Rep.  974.  46  Fed.  278. 

3 Ante,  §   12.  o:\[ason  v.  Hartford,  etc.   R.  R.   19 

4Sc.hrpiber  v.  Sharpless,   110  U.   S.  Fed.  53. 

76.  28  L.  ed.  65.  3  Sup.  Ct.  Rep.  423.  loTilghman     v.     Paxson     Co.     115 

This    case    is   referred    to    under  the  Fe<l.  906. 

discussion  of  the  question  of  a  Fed-  i2Act  Sept.  24.  1789.  §  31,  1   Stat, 

eral  common  law.     See  ante,  §  13.  90. 

•■■'§  841  [a].  i3Act  8  and  9  Wm.  Til.,  c.  11   §  7. 

«Cxriswold  v.  Hill.  1  Paine  483,  Fed.  See  Moses  v.  Wooster,  115  U.  S.  285, 

Cas.  No.  .5.834.  29  L.  ed.  391,  6  Sup.  Ct.  Rep.  38. 

•The  Ship  Norway,  1  Ben.  493,  Fed. 

741 


S   SIG  (JRNEKAI.   AND    MISCELLANEOUS   TROVISIONS.      [Code   Fed. 

or  administrator.  The  action  abates  so  far  as  decedent's  estate  is  con- 
cerned. This  does  not.  Moreover  R.  S.  §  955  affected  all  personal  actions 
where  the  right  of  action  survived.  This  section  applies  only  where  the 
action  survives  "to  the  surviving  plaintiff  or  against  the  surviving  defend- 
ant." Hence  in  case  of  a  defendant's  death,  the  liability  must  be  several 
as  in  tort  cases  and  not  merely  joint.i*  In  case  of  a  plaintiff's  death  the 
right  must  not  only  survive,  but  it  must  survive  to  the  remaining  plain- 
tiff.15  Many  States  have  pi'ovisions  governing  death  of  one  of  several 
plaintiffs  or  defendants,  making  decedent's  executor  or  administrator  a 
party,  and  so  continuing  the  cause.  But  enactments  of  that  sort  cannot  be 
deemed  in  force  in  the  Federal  courts  because  the  above  provision  by  Con- 
gress controls.16  However  where  the  death  of  co-obligor  or  obligee  is  be- 
fore suit  brought  this  section  does  not  apply  and  the  State  law  would  be 
applicable.  17 

R.  S.  §  956  is  not  confined  to  death  before  final  judgment,  as  is  the  case 
with  R.  S.  §  955.  It  is  applicable  on  appeal,  upon  the  theory  that  the 
cause  of  action  upon  an  appeal  or  writ  of  error  is  the  damage  sustained  by 
the  judgment  below,  a  damage  which  survives  though  some  of  the  appel- 
lants die. 18 

§  816.     No  abatement  by  officer's  death,  expiration  of  term,  etc. 

iNo  suit,  action  or  other  proceeding  lawfully  commenced  by  or 
against  the  head  of  any  Department  or  Bureau  or  other  officer  of  the 
United  States  in  his  official  capacity,  or  in  relation  to  the  discharge 
of  his  official  duties,  shall  abate  by  reason  of  his  death,  or  the  ex- 
piration of  his  term  of  office,  or  his  retirement,  or  resignation,  or 
removal  from  office,  but,  in  such  event,  the  court,  on  motion  or  sup- 
plemental petition  filed,  at  any  time  within  twelve  months  there- 
after, showing  a  necessity  for  the  survival  thereof,  to  obtain  a  settle- 
ment of  the  questions  involved,  may  allow  the  same  to  be  main- 
tained by  or  against  his  successor  in  office,  and  the  court  may  make 
such  order  as  shall  be  equitable  for  the  payment  of  costs. 

Act  Feb.  8,  1899,  c.  121,  30  Stat.  822,  U.  S.  Comp.  Stat.  1901,  p.  697. 

A  recent  case  reviews  earlier  decisions  upon  the  abatement  of  suits 
against,  officers,  commissioners,  boards,  etc.,  remarking  that  "it  was  doubt- 
less to  meet  the  difficulties  occasioned  by  these  decisions"  that  Congress 
passed  the  above  law.i 

i4See  Union  Bank  V.  Mott,  27  N.Y.  i^United    Stat-es    v.     Bullard,    103 

633.  Fed.  257. 

isFisher  v.  Rutlierford,  Baldw.  188,  isMoses  v.  Wooster.  115  U.  S.  285, 

Fed.    Cas.    No.    4.823;    see    Tohin    v.  29  L.  ed.  391.  6  Sup.  Ct.  Rep.  38. 

Missouri  P.  Ry.   (Mo.)   18  S.  W.  996.  iMurphy   v.  Utter,    186  U.   S.    101, 

iGSeaman  v.   Slater,   18   Fed.  485;  46  L.  ed.  1075,  22  Sup,  Ct.  Rep.  776. 
see  Fitzpatrick  v.  Domingo,  4  Woods, 
103,  14  Fed.  216. 

742 


Procedure]   NON-JOINDER  OF,  OR  FAILURE  TO  SERVE  PARTIES.  §   817   [b] 

§  817.  Non-joinder  of,  or  failure  to  serve  parties  as  ground  of 
abatement. 
When  there  are  several  defendants  in  any  suit  at  law  or  in  equity, 
and  one  or  more  of  them  are  neither  inhabitants  of  nor  found  with- 
in the  district  in  which  the  suit  is  brought,  and  do  not  voluntarily 
appear,  the  court  may  entertain  jurisdiction,  and  proceed  to  the 
trial  and  adjudication  of  the  suit  between  the  parties  who  are  prop- 
erly before  it ;  but  the  judgment  or  decree  rendered  therein  shall 
not  conclude  or  prejudice  other  parties  not  regularly  served  with 
process  nor  voluntarily  appearing  to  answer;™  and  nonjoinder  of 
parties  who  are  not  inhabitants  of  nor  found  within  the  district  as 
aforesaid  shall  not  constitute  matter  of  abatement  or  objection  to 
the  suitJ^^f^i 

R.  S.  §  737,  U.  S.  Comp.  Stat.  l'.)01,  p.  587. 

[a]     History  and  scope  of  section,  and  related  matters. 

The  above  provision  was  originally  enacted  in  1839. 3  As  respects  equity 
eases,  it  is  merely  declaratory  of  a  doctrine  previously  established  by  the 
Supreme  Court.*  The  47th  equity  rule  embodies  that  doctrine  in  ampler 
form."  It  will  be  observed  that  the  above  section  has  reference  only  to  non- 
joinder of,  or  failure  to  serve  parties  because  bej'ond  the  reach  of  the  pro- 
cess of  the  court.6  It  does  not  refer  to  cases  where  the  joinder  of  a  proper 
party  within  reach,  would  defeat  Federal  jurisdiction  and  is  excused  on  tliat 
ground."  In  such  cases  however,  and  in  cases  of  removal  of  a  controversy 
in  a  State  court  as  between  certain  of  the  parties  because  separable  from 
the  case  as  to  other  defendants,?  the  Federal  courts  have  been  obliged  to 
create  peculiar  rules  of  their  own  respecting  non-joinder  as  ground  of 
abatement,  and  a  peculiar  classification  of  parties  for  purposes  of  Federal 
juri.sdiction.  These  result  from  the  limited  and  delegated  nature  of  Fed- 
eral jurisdiction  and  the  rule  against  service  of  process  outside  of  the  dis- 
trict wherein  issued. 

[bj     Formal,  necessary  and  indispensable  parties. 

The  Federal  courts  classify  parties  as  formal,  necessary,  and  indis- 
pensable! o   and   by   that   classification   determine   questions   of   abatement, 

3 Act    Feb.    28,    183P.   c.   36,   §    1,   5  15  L.  ed.   161;   Barnev  v.  Baltimore, 

Stat.  3-21.  6  Wall.  280.  18  L.  ed!  826. 

■iShiekls   v.    Barrow,   17   How.    130,  ^In    equity    cases    rule   47    governs 

141,  15  L.  ed.  161  ;    Coiron  v.  Millau-  as    to    nonjoinder   of    persons   within 

don,    19    How.     115,    15   L.   ed.   57.5:  the  courts  jurisdiction.     See  post,  § 

Davenport  v.  Dews.  18  Wall.  ()2().  21  101!). 

L.  ed.  fl38:   Greeley  v.  Lowe,   155  U.  sAnte.  §  135;  R.  S.  §  737  does  not 

S.  70.  39  L.  ed.  74,  15  Sup.  Ct.  Rep.  applv  to  such   cases:      Ames  v.   Chi- 

26.             ,  cago".  etc.  Co.  30  Fed.  884.  885. 

sPost.  §§  1019,  et  seq.  loRussell   v.    Clark.    7    Cranch.   98, 

fiShields  v.  Barrow,   17   How.   140,  3  L.  ed.  271 ;   Shields  v.  Barrow.   17 

743 


§   817   lb]        GENERAL   AND    MISCELLANEOUS    PROVISIONS.      [Code   Fed. 

dismissal  and  removal.  A  formal  party  is  one  not  interested  in  the  contro- 
versy between  the  immediate  litigants,  but  who  has  an  interest  in  the  sub- 
ject matter  that  may  conveniently  be  settled  in  the  suit  and  thereby  pre- 
vent further  litigation,  n  Thus  a  woman's  husband  is  but  a  formal  party 
to  her  suit  to  enforce  the  trusts  of  a  marriage  settlement  and  set  aside  a 
conveyance  of  the  property;  12  the  original  grantor  under  whom  all  parties 
claim  is  but  a  formal  party  to  a  suit  for  a  conveyance.is 

Necessaiy  parties  are  those  who  have  an  interest  in  the  controversy  and 
who  should  be  joined  to  insure  a  final  determination  of  the  entire  contro- 
versy; yet  whose  interests  are  so  separable  from  those  of  the  parties  before 
the  court  that  it  can  proceed  to  a  complete  and  final  decree  without  af- 
fecting such  necessary  parties  if  absent.  1 4  Thus  on  a  bill  by  one  heir 
claiming  as  trustee  for  all,  to  have  a  deed  of  their  decedent  set  aside  and 
for  a  sale  of  the  property,  the  other  heirs  are  necessary  parties;  but  if  they 
cannot  be  joined  the  undivided  interests  of  those  before  the  court  may  be 
ordered  sold. is  A  bill  to  compel  transfer  of  patent  as  agreed,  is  maintain- 
able against  the  patentee  though  not  against  other  defendants  who  bought 
some  of  the  patented  articles.is  In  suit  by  one  heir  to  set  aside  decedents 
fraudulent  deed  the  other  is  merelj'  a  necessary  and  not  an  indispensable 
party. 1"  An  agent  is  often  a  proper  and  necessary  party  to  a  suit  against 
his  principal,  but  yet  is  not  .indispensable  within  Federal  rules.is  A 
corporate  treasurer  may  sue  his  predecessor  for  an  accounting  and  to  re- 
cover corporate  moneys  and  to  thtit  suit  the  corporation  would  be  a  neces- 
sary but  not  an  indispensable  party. 1 9  Intermediate  holders  of  a  title  are 
usually  only  necessary  or  proper  parties  to  a  suit  regarding  it. 20 

Indispensable  parties  are  those  having  an  interest  in  the  controversy  of 
such  a  nature  that  final  decree  cannot  be  made  without  either  affecting 
that  interest  or  leaving  the  controversy  in  such  a  condition  that  its  final 
determination  may  be  wholly  inconsistent  with  equity  and  good  conscience.! 
There  is  an  exception  to  this  definition  of  indispensable  parties,  in  cases 
where  the  parties  so  interested  in  the  controversy  are  too  numerous  to 
join  or  be  joined  in  one  suit  and  one  appears  for  all. 2  In  suit  for  re- 
How.  130.  15  L.  ed.  IGO;  Williams  v.  isHarding  v.  Handv,  11  Wheat. 
Bankhead,    19   Wall.    563.    22   L.   ed.    132,  6  L.  ed.  429. 

184,    187;     Barne\'    v.    Baltimore,    6        leNesmith   v.    Calvert,    1    Wood.   & 
Wall.  280.   18  L.  ed.  826;  Gregory  v.    M.  38.  Fed.  Cas.  No.  10,123. 
Swift,  39  Fed.  712;  Tobin  v.  Walkin-        iTWilliams  v.  Crabb,  117  Fed.  193, 
shaw,  McAll.   31.   Fed.   Cas.   No.   14,-    54  C.  C.  A.  213,  59  L.R.A.  425. 
068;   Conolly  v.  Wells,  33    Fed.  207;         isDonovan  v.  Campion,  85  Fed.  71, 
Gross  V.  Scott  Mfg.  Co.  48  Fed.  40.        29  C.  C.  A.  30;   Rhingleur  v.  Jenkins, 

iiWiliams  v.  Bankhead,  19  Wall.  Ill  Fed.  452;  Union,  etc.  Co.  v. 
563,  22  L.  ed.  184.  187;  Kellev  v.  Moore,  79  Fed.  705,  25  C.  C.  A.  150; 
Boettcher,  85  Fed.  55.  29  C.  C.  A.  14.    Gross  v.  Scott  Mfg.  Co.  48  Fed.  35. 

i2Wormley  v.  Wormley,  8  Wheat.  laHunter  v.  Bobbins,  117  Fed.  920. 
451,  5  L.  ed.  659.  2  0See  United   States  v.   Hendv.  54 

isVattier  v.  Hinde.  7  Pet.  252,  8  Fed.  447;  Smith  v.  Lee,  77  Fed.'  779. 
L.  ed.  675.  iShields  v.   Barrow,   17   How.    130, 

i^Cameron  v.  McRoberts,  3  Wheat.    15  L.  ed.   100;    Donovan  v.   Campion, 
593,  4  L.  ed.  467;  Shields  v.  Barrow,    85  Fed.  71,  29  C.  C.  A.  30. 
17  How.  130,  15  L.  ed.  160.  nVilliams   v.   Bankhead,    19   Wall. 

744 


Procedure]  NON-JOINDER  OF,  OR  FAILURE  TO  SERVE  PARTIES.  §   817    [c] 

scission  of  a  contract  all  parties  thereto  would  generally  be  indispensable. 3 
In  proceedings  for  dissolution  of  partnership,  all  partners  are  indispens- 
able.<  All  qualified  executors  are  indispensable  in  suit  for  accounting.s 
All  part  owners  are  indispensable  parties  to  a  partition  suit;6  or  to  a  suit 
to  compel  cancellation  of  title. ■<  The  trustee  of  a  fund  in  which  another's 
interest  is  sought  to  be  reached  is  an  indispensable  party  to  such  a  suit.  8 
In  suits  by  heirs  attacking  a  creditor's  sale  of  decedent's  realty,  all  heirs 
are  indispensable  parties. 9  Assignors  who  have  parted  with  all  their 
interest  are  not  indispensable  in  a  suit  by  their  assignee; lo  but  it  is  often 
otherwise  if  they  retain  an  interest. n  In  suits  by  stock  or  bondholders 
of  a  corporation  regarding  its  property  or  affairs  the  corporation  is  often 
and  perhaps  usually  an  indispensable  party.12  Where  deficiency  in  a 
fund  is  probable  all  equal  claimants  must  be  before  the  court.  1 3  In  suit 
for  disposal  of  a  specific  fund  one  claiming  the  same  is  an  indispensable 
party.  14  Bona  fide  purchasers  are  indispensable  to  a  suit  to  cancel  a 
title.  15 

[c]     Abatement  for  want  of  indispensable  parties. 

Taking  these  definitions  of  formal,  necessary,  and  indispensable  parties, 
the  section  should  be  read  as  referring  to  necessary  parties  but  not  to  indis- 
pensable parties.  If  necessary  parties  are  joined  and  cannot  be  reached  by 
process,  the  jurisdiction  is  not  ousted,  although  the  decree  must  be  so 
framed  as  to  affect  only  the  parties  duly  served.  If  necessary  parties  are 
not  joined  it  is  no  ground  of  abatement  provided  they  be  not  within  reach 
of  process.  17  But  the  section  is  not  to  be  construed  as  excusing  the  joinder 
of,  or  service  upon  indispensable  parties,  although  no  exception  is  in  terms 
made;  and  this  because  no  court  can  adjudicate  directly  upon  a  person's 
rights  without  the  party  being  actually  or  constructively  before  the 
court.18     The  section  is  not  an  attempt  to  subvert  this  fundamental  princi- 

563,    22    L.    ed.   184.   187:    e.   g.   see  nHnbbard  v.  Manhattan  T.  Co.  87 

Bacon    v.    Robertson,     18   How.   489,  Fed.  51.  30  C.  C.  A.  520. 

15L.  ed.  499.    See  post,  §  1020.  i2See   Consol.    Water    Co.   v.   Bab- 

3Shields   v.   Barrow,   17  How.   130,  cock,  76  Fed.  243;  but  see  Hunter  v. 

15  L.  ed.  160.  Bobbins.    117     Fed.     920;     Conery  v. 

4Gray    v.    Larrimore,    2    Abb.    554,  Sweeney,  81  Fed.  14,  26  C.  C.  A. '.309. 

Fed.  Cas.  No.  5,721.  isRa'ilroads  v.   Orr.   18   Wall.   474, 

sConolly  v.  Wells,  33  Fed.  207.  21  L.  ed.  810. 

fiBarney  v.  Baltimore,  6  Wall.  280,  i* Williams  v.   Bankliead,   19  Wall. 

18  L.  ed.  826.  572,  22  L.  ed.  184. 

TTobin  v.  Walkinshaw,  McAll.  28,  isUnited  States  v.  Winona,  etc.  R. 

Fed.   Cas.   No.    14.068.  R.  67  Fed.  948,  15  C.  C.  A.  96. 

sMerchants  C.  P.  Co.  v.  Insurance  ivPavne  v.  Hook,   7  Wall.  431.   19 

Co.  151  U.  S.  382.  38  L.  ed.   195,  14  L.  ed.  201  ;    Ribon  v.  Chicago,  etc.  R. 

Sup.  Ct.  Rep.  367.  R.  16  Wall.  450,  21   L.  ed.  309;  Kcn- 

flHoe  V.  Wilson.  9  Wall.  503,  504.  19  dig  v.  Dean.  97  U.  S.  425.  24  L.  ed. 

L.  e<l.  762.  1062;    Fisher  v.  Shopshire,  147  U.  S. 

loBat-t^sville  Inst.  v.  Kauffman,  18  145,   37   L.  ed.   109.  13  Sup.   Ct.   Rep. 

Wall.    154,   21    L.   ed.    775.      See   Kil-  ''OI ;    Plume,  etc.  Co.    v.    Baldwin.  87 

bourn  v.   Sunderlana,   130  U.   S.   50-3.  Fed.  785.     See  also  post,  §  1010 [a]. 

32  L.  ed.  1005,  9  Sup.  Ct.  Rep.  594.  isMallow  v.  Hinde,  12  Wlieat.  198, 

745 


§   817    [d]         GENERAL    AND    MISCELLANEOUS    PROVISIONS.      [Code  Fed. 

pie  of  jurisprudence,  but  to  legislate  respecting  necessary  parties. 1 9  If 
an  indispensable  party  is  not  within  reach  and  does  not  appear,  the  case 
must  be  discussed  notwithstanding  this  section,  20  though  in  some  cases 
and  for  purposes  of  justice,  a  preliminary  injunction  granted  will  be  con- 
tinued against  the  party  in  court,  until  resort  can  be  had  to  another 
tribunal.  1  Sinee  the  section  only  excuses  non-joinder  where  the  parties 
are  not  inhabitants  of  nor  found  within  the  district,  it  is  necessary  that  a 
bill  or  complaint  failing  to  join  parties  who  are  necessary  should  set  forth 
the  fact  that  they  cannot  be  reached. 2 

[d]  Decree  must  not  prejudice  parties  not  served  nor  appearing. 

This  principle  was  recognized  before  the  above  statutory  provision  was 
enacted.3  It  applies  as  fully  where  indispensable  parties  are  not  joined* 
as  where  they  are  joined  but  not  served,  and  limits  the  operation  of  R.  S. 
§  737  to  parties  that  are  necessary  but  not  indispensable. 5 

[e]  Objections  for  non-joinder,  and  waiver. 

It  is  the  general  rule  that  non- joinder  of  parties  must  be  taken  advan- 
tage of  by  demurrer  or  plea,  or  it  is  waived; 6  and  the  State  law  as  to  the 
time  and  manner  of  objecting  is  followed  in  actions  at  law."  But  where 
the  non-joinder  is  of  an  indispensable  party  the  court  has  no  power  to  make 
decree, s  the  defect  is  jurisdictionala  and  cannot  be  waived.io 


6  L.  ed.  601;  Shields  v.  Barrow.  17 
How.  130,  15  L.  ed.  161. 

19  See  Gregory  v.  Stetson,  133  U. 
S.  579,  33  L.  ed.  792,  10  Sup.  Ct.  Rep. 
422 :  Hamilton  v.  Savannaah  R.  R. 
49  Fed.  412;  Collins  M.  Co.  v.  Fer- 
gu.son,  54  Fed.  721. 

2  0Barney  v.  Baltimore,  6  Wall.  285, 
IS  L.  ed.  826;  California  v.  Southern 
Pac.  R.  Co.  157  U.  S.  249,  39  L.  ed. 
G90,  15  Sup.  Ct.  Rep.  599;  Florence, 
etc.  Co.  V.  Singer,  etc.  Co.  8  Blatchf. 
127,  Fed.  Cas.  No.  4,884;  Chadbourne 
V.  Coe,  45  Fed.  826;  Coiron  v.  Millau- 
don,  19  How.  115.  15  L.  ed.  576; 
Christmas  v.  Russell,  14  Wall.  80,  20 
L.  ed.  763 ;  Kendig  v.  Dean.  97  U.  S. 
425,  24  L.  ed.  1062;  Swan.  etc.  Co. 
V.  Frank,  148  U.  S.  611,  37  L.  ed.  580. 
13  Sup.  Ct.  Rep.  694;  Lawrence  v. 
Times  P.  Co.  90  Fed.  28.  See  also 
post,  §  1019[a]. 

iMalloAV  V.  Hinde,  12  Wheat.  198, 
199.  6  L.  ed.  600.  See  United  States 
V.  Parrott,  McAll.  281,  284,  Fed.  Cas. 
No.  15,998.  Perhaps  such  course 
would  not  now  be  proper  in  view 
of  the  act  requiring  dismissal  at  any 
time  want  of  jurisdiction  is  made  to 
appear.     Post,  §  818. 


sMallow  V.  Hinde,  12  Wheat.  198, 
'6  L.  ed.  600;  Elmendorf  v.  Taylor, 
10  Wheat  167,  6  L.  ed.  294;  Russell 
V.  Clarke,  7  Cranch,  98,  3  L.  ed.  281. 

4 See  California  v.  Southern  Pac. 
Co.  157  U.  S.  229,  39  L.  ed.  690,  15 
Sup.  Ct.  Rep.  509. 

5 Supra,  note[c]. 

sMoore  v.  Bank  of  Metropolis,  13 
Pet.  311,  10  L.  ed.  172;  Story  v. 
Livingston,  13  Pet.  375,  10  L.  ed. 
200;  Carey  v.  Brown,  92  U.  S.  173, 
23  L.  ed.  469;  Burbank  v.  Bigelow, 
154  U.  S.  559,  19  L.  ed.  51,  14  Sup. 
Ct.  Rep.  1163. 

TSee  Buckingham  v.  Dake,  112  Fed. 
258.  .50  C.  C.  A.  492;  Merchants'  Ins. 
Co.  V.  Buckner,  110  Fed.  345,  49  C. 
C.  A.  80. 

sRussell  V.  Clarke,  7  Cranch,  98,  3 
L.  ed.  271;  Hagan  v.  Walker,  14 
How.  36,  14  L.  ed.  312;  supra, 
note[c]. 

9  Coy  V.  Mason,  17  How.  583,  15 
L.  ed.  125. 

loSee  Farni  v.  Tesson,  1  Black,  315, 
17  L.  ed.  67. 


746 


Procedure]  DISMISSAL    OR    REMAND.  §   818   [a] 

§  818.     Dismissal  or  remand  for  want  of  jurisdiction  or  collu- 
sion therein. 

If,  in  any  suit  commenced  in  a  circuit  court,  or  removed  from 
a  State  court  to  a  circuit  court  of  the  United  States,  it  shall  appear 
to  the  satisfaction  of  said  circuit  court, '^''^  at  any  time  after  such 
suit  has  been  brought  or  removed  thereto '^°^''^®^  that  such  suit  does 
not  really  and  substantially  involve  a  dispute  or  controversy  prop- 
erly within  the  jurisdiction  of  said  circuit  court,'^^^"^^^  or  that  the 
parties  to  said  suit  have  been  improperly  or  collusively  made  or 
joined,  either  as  plaintiffs  or  defendants,  for  the  purpose  of  creating 
a  case  cognizable  or  removable  under  this  act,'^'^^  the  said  circuit 
court  shall  proceed  no  further  therein,  but  shall  dismiss  the  suit 
or  remand  it^'^  to  the  court  from  which  it  was  removed  as  justice 
may  require,  and  shall  make  such  order  as  to  costs^J^  as  shall  be 
just. 

Part  of  §  5,  act  Mar.  3,  1875,  c.  137,  18  Stat.  472,  U.  S.  Comp.  Stat.  1901, 
p.  511. 

[a]     History  and  general  purpose  of  section. 

As  originally  enacted  the  above  section  further  provided  that  "the  order 
of  said  circuit  court  dismissing  or  remanding  said  cause  to  the  State  court 
shall  be  reviewable  by  the  Supreme  Court  on  writ  of  error  or  appeal,  as  the 
case  may  be."  This  clause  was  repealed  in  1887.1*  A  judgment  of  dis- 
missal is  still  reviewable  by  the  Supreme  Court  if  it  involves  a  question  of 
the  jurisdiction  of  the  circuit  court  as  such,i5  and  by  the  circuit  court  of 
appeals  in  other  cases. 1 6  But  an  order  of  remand  is  not  reviewable  because 
not  a  final  judgment,  i"  The  chief  effect  of  the  above  provision  was  in  the 
matter  of  the  time  when  objection  to  jurisdiction  might  be  taken  and  in 
making  dismissal  or  remand  mandatory.  The  courts  had  long  been  ac- 
customed to  dismissing  causes  for  want  of  jurisdiction  upon  plea  in  abate- 
ment, and  already  had  rules  upon  the  subject  of  collusive  jurisdiction.! s 
This  statute  made  it  possible  to  raise  these  questions  '"at  any  time."  It 
is  for  the  protection  of  the  court,  as  well  as  the  parties,  against  fraud  upon 
its  jurisdiction.!  9  Its  principal  object  was  to  relieve  the  national  courts  of 
the   necessity   of  passing  upon   cases   plainly   outside   their  jurisdiction. 20 

i4Act  March  3,  1887,  e.  373,  §  6.  24  Ct.  Rep.  248;  Gurnee  v.  Patrick  Co. 

Stat.   .5.5.5.   as   corrected  bv  act  Aug.  137  U.  S.  143,  34  L.  ed.  601.  11  Sup. 

13.  1888,  c.  866,  §  6,  25  Stat.  436.  Ct.    Rep.    34:    Levinski    v.    Middlesex 

!SWetmore  v.  Rvmer,  169  U.  S.  118,  B.  Co.  92  Fed.  462.  34  C.  C.  A.  452. 
42  L.  ed.  683,  18  Sup.  Ct.  Rep.  293.         is  As  to  transfers  to  give  jurisdic- 

See  ante,  §  42.  tion.    See  ante.  §  23. 

16 Ante.  §  77.  mVilliams  v.  Nottawa  Tp.  104  U. 

iTMissouri    P.    Rv.    v.    Fitzgerald,  S.  200.  26  L.  ed.  716. 
160  r.  S.  ."82.  40  L."  ed.  536.  16  Sup.         soXashua.   etc.   R.   R.   v.  Boston   & 

Ct.  Rep.  ::;sn:  Wliitcomb  v.  Smithson,  L.  R.  R.  136  U.  S.  356.  34  L.  ed.  307, 

175  U.  S.  637,  44  L.  ed.  303,  20  Sup.  10  Sup.  Ct.  Rep.  1004. 

747 


§  818   [b]        GENERAL    AND    MISCELLANEOUS    PROVISIONS.      [Code  Ted. 

It  strikes  a  blow  at  improper  collusive  attempts  to  impose  upon  tlie  Fed- 
eral courts  the  cognizance  of  cases  not  justly  belonging  to  them.i  A  decree 
in  equity  dismissing  for  want  of  jurisdiction  should  so  state,  and  reserve 
the  merits  of  the  case.  2 

[b]     Jurisdictional  defect  or  fraud  must  be  clear. 

It  must  appear  "to  the  satisfaction"  of  the  court  that  its  jurisdiction 
has  been  wrongfully  invoked.  This  creates  a  legal  discretion  in  the  court 
and  a  duty  to  dismiss  only  when  the  facts  create  a  legal  certainty  of  the 
conclusion  based  on  them. 3  It  is  proper  for  the  court  to  leave  the  decision 
of  a  question  of  fact  upon  which  the  issue  as  to  jurisdiction  must  turn,  to 
a  jury,4  and  if  properly  so  submitted  and  under  a  correct  charge,  their  find- 
ing will  not  be  disturbed. 5  So  it  may  be  referred  to  a  master  to  take  testi- 
mony and  report.6  Where  the  complaint  alleges  the  requisite  diverse 
citizenship,  it  must  be  overcome  by  some  further  evidence  than  the  alle- 
gations in  a  plea  in  abatement. 7  The  burden  of  proof  is  upon  the  party 
denying  the  jurisdiction. s  But  if  by  state  practice  a  general  denial  puts 
allegations  of  citizenship  in  issue  and  there  is  no  proof  to  sustain  it,  then 
on  appeal  judgment  will  be  reversed. 9 

Many  cases  involving  the  question  of  removal  have,  however,  declared 
that  if  there  was  doubt  as  to  the  existence  of  a  separable  controversy,  10 
or  otherwise  as  to  the  right  of  removal,  the  circuit  court  should  remand.n 
This  seems  to  be  on  grounds  of  general  expediency  to  avoid  the  expensive 
results  of  an  improper  removal,  and  not  in  obedience  to  any  statutory 
principle.i2  Moreover  the  remanding  order  was  formerly,  but  is  not  now, 
quickly  appealable,  and  some  of  the  cases  gave  weight  to  that  fact. is 

iHawes  v.  Oakland,  104  U.  S.  459,  s Adams  v.  Shirk,  117  Fed.  801,  805, 

26  L.  ed.  831.  55  C.  C.  A.  25;  Wiemer  v.  Louisville, 

sindian  L.   &  T.  Co.   v.  Shoenfelt,  etc.  Co.   130  Fed.  244;   Pennsylvania 

135  Fed.  484,  68  C.  C.  A.  196.  Co.  v.  Bay.  138  Fed.  203. 

3 Barry  v.  Edmunds,  116  U.  S.  559,  sYocum  v.    Parker,    130    Fed.   770, 

562,  565,   29  L.  ed.    729,   6   Sup.   Ct.  66  C.  C.  A.  80. 

Rep.  501;  Wetmore  v.  Rymer,  169  U.  loConcord  C.  Co.  v.  Haley,  76  Fed. 

S.   128.   42  L.    ed.    682, '  18   Sup.   Ct.  882;    Ernst   v.   American   S.   M.   Co. 

Rep.  293;  Colvin  v.  Jacksonville,  158  114  Fed.  981. 

U.   S.   460.    39   L.   ed.    1053,    15   Sup.  n Evans  v.  Faxon,  11  Biss.  175.  10 

Ct.    Rep.    866;    Deputron    v.    Young,  Fed.  312;    Sanger  v.  Seymour,  25  Fed. 

134  U.  S.  252,  33  L.  ed.  923,  10  Sup.  289;  Kansas  v.  Bradley,  26  Fed.  291, 

Ct.  Rep.  539;  Put-in-Bay  Waterworks  292;  Kessinger  v.  Vannatta,  27  Fed. 

V.  Ryan,  181  U.  S.  430,  45  L.  ed.  938,  891;    Hutcheson    v.    Bigb«e,   56  Fed. 

21  Sup.  Ct.  Rep.  709.  329;    Plant  v.  Harrison.  101  Fed.  307; 

4Terry  v.  Daxj,  107  Fed.  50,  46  C.  In  re  Cilley,  58  Fed.  989;  Johnson  v. 

C.  A.  141 ;  Mexican  C.  R.  R.  v.  Glover,  Wells,  91   Fed.  4. 

107  Fed.  356,  46  C.  C.  A.  3-34.  i2Wolff  v.   Archibald,   4   McCrary, 

BAlabama  G.   S.  Ry.  v.  Carroll,  84  581,    14   Fed.    369;    Levy  v.    Laclede 

Fed    772    28  C.   C.  A.  207;   Chicago.  Bank.   18  Fed.  194;    Adams  v.  May, 

etc.   Ry. 'v.   Ohle,   117   U.   S.   123,   29  27  Fed.  908. 

L.  ed.  837,  6  Sup.  Ct.  Rep.  632.  1 3 Wilson  v.  St.  Louis,  etc.  Ry.  22 

eEgerton  v.  Starin,  91  Fed.  932.  Fed.  5;  supra  note[a]. 

V Adams  v.  Shirk,  117  Fed.  801,  805, 
55  C.  C.  A.  25. 

748 


Procedure] 


DISMISSAL  OR   REMAND. 


§   818   [c] 


[c]     Dismissal  "at  any  time" — mode  of  objection. 

Formerly  objection  to  jurisdiction  had  to  be  raised  by  plea  in  abatement, 
and  was  waived  by  pleading  to  the  merits.is  Unless  one  of  the  parties 
raised  a  question  by  such  plea  the  court  was  accordingly  unable  to  take 
notice  of  colorable  assignments  or  transfers  to  give  jurisdiction  so  long  as 
the  pleadings  made  out  a  case  of  jurisdiction.!  6  The  act  of  1875  not  only 
enabled  the  question  to  be  raised  at  any  time,i'  but  permitted  and  in- 
deed requiresis  the  circuit  court  to  notice  any  such  imposition  upon  its 
jurisdiction  in  the  absence  of  any  plea  or  motion  of  the  parties.  1 9  It  is 
the  court's  duty  where  a  question  of  jurisdictional  defect  is  raised  to  de- 
termine it  before  proceeding  further  with  the  case.2  0  On  motion  to  dis- 
miss however,  if  a  bona  fide  claim  with  a  plausible  case  of  jurisdiction 
is  made  out,  the  court  will  not  ordinarily  enter  into  the  merits  but  will 
leave  the  jurisdictional  question  to  be  determined  on  formal  pleadings. 
The  section  does  not  restrict  the  court  to  any  mode  of  inquiry  so  long  as 
the  parties  are  given  a  fair  hearing. 2  But  it  is  still  proper  for  the  parties 
to  raise  the  issue  by  plea  to  the  jurisdiction; 3  or  by  petition  or  motion  to 
remand. 4  Parties  may  be  permitted  to  amend  their  pleading  for  that  pur- 
pose. 5  Indeed  the  Supreme  Court  was  at  first  disposed  not  to  alter  the 
rule  requiring  parties  claiming  a  defect  of  jurisdiction  to  plead  in  abate- 
ment ;  6  but  later  cases  have  declared  in  favor  of  liberality  and  permit 
the  parties  to  raise  the  issue  by  answer,"?  or  still  later  by  affidavits,  peti- 
tion or  motion,  so  long  as  the  adverse  party  is  given  due  notice. «  A  mo- 
tion to  remand  a  removed  cause,  is  in  the  nature  of  a  special  plea  to  the 


isDe  Sobry  v.  Nicholson,  3  Wall. 
423,  18  L.  ed.  264;  Wickliffe  v. 
Owings,  17  How.  47,  15  L.  ed.  44. 

ifiFarmington  v.  Pillsbury,  114  U. 
S.  138,  143,  29  L.  ed.  114,  5  Sup.  Ct. 
Rep.  807. 

I'Hartog  V.  Jlemory,  116  U.  S. 
588,  29  L.  ed.  725.  6  Sup.  Ct.  Rep. 
521 ;  Deputron  v.  Young,  134  U.  S. 
252,  33  L.  ed.  923,  10  Sup.  Ct.  Rep.  539. 

18 Williams  v.  Nottaiwa,  104  C.  S. 
209,  26  L.  ed.  719:  L'gerton  v.  Starin, 
91  Fed.  932;  Oberlin  College  v. 
Blair.  70  Fed.  414. 

i9Morris  v.  Gilmer,  129  U.  S.  326. 
32  L.  ed.  690,  9  Sup.  Ct.  Rep.  289; 
Hartog  V.  ilemorv,  116  U.  S.  588, 
29  L.  ed.  725,  6  Sup.  Ct.  Rep.  521; 
Oberlin  College  v.  Blair,  70  Fed.  414; 
Bland  v.  Fleeman,  29  Fed.  670;  Teas 
v.  Albriglit.  13  Fed.  406;  Earth  v. 
Coler,  00  Fed.  466,  9  C.  C.  A.  81; 
United  States  v.  Crawford,  47  Fed. 
561. 

2  0 Ashley  v.  Bd.  of  Superv.  60  Fed. 
68,  8  C.  C.  A.  455. 

lYork  etc.  Bk.  v.  Abbot,  131  Fed. 
980 


2Hartog  V.  Memorv,  116  U.  S.  588, 
6  Sup.  Ct.  Rep.  521,  "29  L.  ed.  725. 

slniperial  R.  Co.  v.  Wyman,  38 
Fed.  577,  3  L.R.A.  503;  see  Bland  v. 
Fleeman,  29  Fed.  669. 

a\nn.  R.  R.  v.  Allegheny  V.  R.  R. 
25  Fed.  113. 

5  Ash  ley  v.  Pre.sque  I.  Co.  60  Fed. 
55,  8  C.  C.  A.  455. 

6Hartog  V.  Memory,  116  U.  S.  588, 
29  L.  ed.  725,  6  Sup.  Ct.  Rep.  521 ; 
see  Draper  v.  Springport,  21  Blatchf. 
240,  15  Fed.  328,  332. 

-Anderson  v.  Watt,  138  U.  S.  701, 
32  L.  ed.  1078,  11  Sup.  Ct.  Rep.  449; 
C'ameron  v.  Hodges,  127  U.  S.  322, 
32  L.  ed.  133,  8  Sup.  Ct.  Rep.  1154. 

sSee  Morris  v.  Gilmer,  129  U.  S. 
315,  326,  32  L.  ed.  690,  9  Sup.  Ct. 
Rep.  289;  Anderson  v.  Watt,  138 
U.  S.  694.  701,  32  L.  ed.  1078,  11 
Sup.  Ct.  Rep.  449,  450;  Deputron  v. 
Young,  134  U.  S.  252,  33  L.  ed.  928, 
10  Sup.  Ct.  Rep.  539;  Blvthe  v. 
Hincklev.  84  Fed.  247;  Adams  v. 
Shirk,  il7  Fed.  801,  55  C.  C.  A.  25; 
Hartog  v.  Memory.  23  Fed.  836; 
Dennistoun  v.  Draper,  5  Blatchf. 
336,  Fed.  Cas.  No.  3,804. 


749 


§   SIS   [d]       GENERAL     AND    MISCELLANEOUS    PROVISIONS.       [Code  Fed. 

jurisdiction. 9  The  fact  that  a  motion  to  remand  has  been  denied  does  not 
make  the  jurisdictional  question  res  adjudicata,  so  as  to  prevent  its  being 
raised  and  the  motion  to  remand  renewed,  at  a  later  trial,  lo  The  fact  of 
previous  demurrer  for  failure  to  state  a  cause  of  action,  does  not  make  a 
motion  to  remand  for  want  of  jurisdiction,  too  late.n  Motion  to  remand 
may  sometimes  be  entertained  at  the  final  hearing.! 2  A  question  of  jur- 
isdictional fact  may  properly  be  submitted  to  a  jury  as  a  distinct  issue.  1 3 
But  if  a  plea  of  want  of  diverse  citizenship  has  once  been  fully  inquired 
into,  the  court  will  not  hear  further  proofs  directed  thereto.  I'l  And  where 
there  is  no  issue  in  the  pleadings  of  a  jurisdictional  character,  it  has  been 
held  improper  and  not  within  the  purpose  of  the  act  of  1875  to  permit  ir- 
relevant evidence  upon  that  point  to  be  introduced  at  the  hearing  or  trial.i5 

[dj     — time  for  making  objection. 

It  is  not  perceived  that  the  section  restricts  the  power  of  the  court  to 
proceed  upon  its  own  motion  at  any  time  while  a  case  is  within  its  con- 
trolls  and  if  a  defect  of  jurisdiction  apparent  in  a  bill  is  overlooked,  it  is 
still  the  cjurt's  duty  to  dismiss  upon  discovering  it.i9  A  petition  for 
dismissal  by  parties  to  the  suit  has  been  entertained  after  proofs  taken 
before  master,2  0  after  evidence  closed,i  after  verdict  and  judgment, 2  an  I 
after  two  trials  had  been  had.  3  A  motion  to  dismiss  for  want  of  jurisdi  - 
tion  comes  too  late  when  made  long  after  entry  and  collection  of  the  judg- 
ment. 4  But  cases  have  been  remanded  even  after  judgment  recovered  at, 
the  same  term,  upon  ascertaining  the  impropriety  of  removal. 5  The  court 
is  not  required  to  wait  until  trial  or  final  judgment  before  remanding  or 
dismissing.s  But  very  often  the  jurisdictional  defect  or  fraud  does  not  ap- 
pear until  the  trial,  and  the  court  should  then  act.7     Sometimes  it  does  not 

9Mansfield,  etc.  R.  R.  v.  Swan,  111  Kingman  v.  Holthans,  59  Fed.   315; 

U.  S.  379,  28  L.  ed.  463,  4  Sup.   Ct.  Morris  v.  Gilmer,   129  U.  S.  315,  32 

Rep.  510.  L.  ed.  690,  9  Sup.  Ct.  Rep.  289;  Bel- 

lOMissouri  P.  R.  R.  v.  Fitzgerald,  lowes  v.  Sowles,  53  Fed.  325;  McCor- 

160  U.  S.  580,  40  L.  ed.  543,   16  Sup.  mick  v.  McDonald,  110  Fed.  50. 

Ct.  Rep.  389;    Collins  v.  Wellington,  isHanley  v.  Beatty,  117  Fed.  67,54 

31    Fed.   244;    Egerton   v.    Starin,    91  C.    C.  A.   445. 

Fed.  932;  Falls  W.  M.  Co.  v.  Broder-  20Stegleder  v.  Mclnesten,  198  U.  S. 

ick,  2  McCrary,  489,  6  Fed.  654;  Ham-  141,  49  L.  ed.  986,  25  Sup.  Ct.  Rep.  616. 

blin  V.  Chicago,  etc.,  Ry.  43  Fed.  401.  lAnderson  v.  Bassman,  140  Fed.  10. 

etc.,  Ry.  43  Fed.  401.  2Toledo,  etc.   Co.  v.   Cameron,   137 

11  Indiana  v  Lake  Erie,  etc.  R.  R.  Fed.  48,  69  C.  C.  A.  28. 

85    Fed.    2.  sDepoitron  v.  Young,  134  U.  S.  252, 

i2See  Richmond,  etc.  R.  R.  v.  Find-  33  L.  ed.  929,  10  Sup.  Ct.  Rep.  539. 

ley,  32  Fed.  641.  4Muhlenberg  Co.  v.  Cit.  Nat.  Bank, 

13 Chicago,  etc.  Ry.  v.  Ohle,  117  U.  05  Fed.  537. 

S.  124,  29  L.  ed.  837,  6  Sup.  Ct.  Rep.  sAyres  v.  Wiswall,  112  U.  S.  187, 

632;   Terry  v.  Dav;^',  107  Fed.  50,  46  28   L.   ed.   695,   5  Sup.   Ct.  llop.   90; 

C.  C.  A.   141.     See  also   supra,  note  Lazensky  v.  Sup.  Lo<lge,  32  Fed.  417. 

[  ]  and  cases  cited.  See  also  Hartog  v.  Memory,  23  Fed. 

i4Sharon  v.  Hill,  26  Fed.  341.  837. 

loDraper  V.  Springport,  21  Blatchf.  sRosenbaum   v.    Bauer,   120   U.   S. 

240.  15  Fed.  332.    See  Hartog  v.  Mem-  459,   30   L.   ed.   747,   7   Sup.   Ct.  Rep. 

cry,    110   U.    S.   588,  2  L.   ed.   725,    6  633;  Magee  v.  Union  P.  R.  R.  2  Sawy. 

Sup.  Ct.  Rep.  521.  447.    Fed.    Cas.    No.    8,945. 

isEgerton   v.    Starin,91    Fed.    932;  TKain  v.  Texas  P.  R.  R.  3  Cent.  L. 

750 


Procedure]  DISMISSAL  OR  REMAND,  §   818   [f] 

appear  until  all  the  pleadings  are  in. 8  And  disimssal  has  been  refused 
where  an  apparent  want  of  jurisdiction  might  be  remedied  where  the  plead- 
ings were  campleted.s  Sometimes  amendment  of  the  pleadings  may  show 
the  impropriety  of  a  removal  granted  because  of  a  separable  controversy 
and  the  cause  should  then  be  remanded :io  or  such  fact  may  develop  at  the 
trial  or  hearing,  n  So  where  the  jurisdictional  amount  is  properly 
alleged,  a  denial  of  its  sufficiency,  does  not  warrant  a  dismissal  in  advance 
of  the  hearing.i2  The  fact  that  the  parties  have  pleaded  and  taken  evi- 
dence after  the  removal  does  not  make  the  court's  duty  to  remand  any 
the  less  imperative. 1 3  The  circuit  court's  jurisdiction  may  be  ousted  by 
discontinuance  of  nonsuit  as  to  the  party  removing  a  cause,  and  the  cause 
shovild  then  be  remanded. i*  So  also  it  may  be  ousted  for  inability  to  reach 
the  parties  by  its  process  within  the  district. 1 5  It  is  the  duty  of  a  party 
discovering  facts  showing  an  imposition  upon  the  court's  jurisdiction  to 
act  at  the  first  opportunity  thereafter.  1 6 

[e]  Dismissal  or  reversal  in  appellate  court. 

The  Supreme  Court  will  on  its  own  motion  notice  a  defect  in  the  ju- 
risdiction of  the  court  below,  and  reverse. is  The  circuit  court  of  appeals 
follows  the  same  rule.is  and  the  failure  of  the  parties  to  raise  the  question 
or  their  consent  to  waive  it  does  not  prevent  that  court  fi'om  considering 
it.  2  0 

[f]  Want  of  controversy  really  within  circuit  court's  cognizance. 

Tliis  clause  includes  cases  where  the  jurisdiction  is  based,  upon  char- 
acter   of    parties    as    well  as    upon    the    nature    of    tlie    subject    matter.2 

J.  12.  Fed.  Cas.  No.  7,596;  Lozano  v.  Rep.  510:  Cameron  v.  Hodg-es.  127  U. 

Wehmer,  22  Fed.  756.  S.  322.  .32  L.  ed.  132.  8  Sup.  Ct.  Rep. 

sExcelsior  W.  P.  Co.  v.  Pacific  B.  1154:  Farmington  v.  Pill -burv.  114  U. 

Co.   185  U.   S.  282.  46  L.  ed.  911,  22  S.  144.  29  L.  ed.  116.  5  Sup. 'Ct.  Rep. 

Sup.  Ct.  Rep.  681;  Rvan  v.  Young.  9  817:  King  B.  Co.  v.  Otoe  Co.  120  U. 

Riss.  63.  Fed.  Cas.  Xo.  12.188.  S.  226.  30  L.  ed.  624.  7  Sup.  Ct.  R-p. 

^Reding  v.  Texas,  etc.  Rv.  10  Rep.  552:    Koenigsberffer   v.   Richmond    S. 

1.36.  Fed.  Cas.   Xo.   11.630a".  M.  Co.  158  U.  S.'^41.  .39  L.  ed.  8S9.  15 

loLong  V.  Buford.  24  Fed.  241.  Sup.  Ct.  Rep.  751. 

iiCollins    V.    Wellington.    31    Fed.         isThurber  v.  Miller.   67   Fed.   373s 

244.  14  C.   C.  A.  432:   Barth   v.  Coler.  60 

i2Pennsvlvania  Co.  v.  Bav,  138  Fed,  Fed.  466.  9  C.  C.  A.  81 ;  Grand  T.  Ry. 

203.  '  ■  v.  Twitchell.  59  Fed.  727.  8  C.  C.  A. 

isBroaawav    Tns.    Co.    v.    Cliicago,  237;  Gorman,  etc.  Co.  v.  Wright.  134 

G.  W.  R.  lOl'Fed.  507.  Fed    .364.   67    C.    C.   A.    345:    Ka.isas, 

i4Texas  T.  Co.  v.  Seeligson.  122  U.  etc.   Rv.   v.   Pruntv.    133    Fed.    13.   66 

S.  519.  .30  L.  ed.  1150.  7  Sup.  Ct.  Rep.  C  C.  A.  163:  C.  C.  Taft  Co.  v.  Cen- 

1261  :   Cassidy  v.  Atlanta,  etc.  R.  R.  tury  Sav.  Bank,  141  Fed.  369  —   (C, 

109  Fed.  673;  Bane  v.  Keefer,  66  Fed.  C.  A.)  .     So.  the  appelate  court 

610.  will  dismiss  where  satisfied  that  the 

isStowe  V.  Sante  Fe.  P.  R.  R.  117  jurisdiction  has  been  collusively  and 

Fed.  368.  impropcriv      invoked:      Twinbull     v. 

isDeputron    v.    Young.    134    U.    S.  Ross.  141  Fed.  649  —  (C.  C.  A.)  . 

252.  33   L.  ed.  929.   10  Sup.  Ct.  Rep.         20Utah-Xovada   Co.   v.   De    Lnmar, 

539.  133  Fed.  116.  66  C.  C.  A.  179. 

isMansfield.  etc.  R.  R.  v.  Swan,  111         2Hartog  v.  Memory,  23  Fed.  837. 
U.   S.  379,  2S  L.  ed.  463,  4  Sup.  Ct. 

751 


§  818   [g]         GENERAL    AND    MISCELLANEOUS    PROVISIONS.      [Code  Fed. 

It  has  reference  to  the  jurisdictional  capacity  of  the  court,  to  hear,  de- 
termine, and  grant  relief.3  That  may  be  questioned  "at  any  time."  But 
the  section  does  not  seem  to  direct  the  court  to  remand  or  dismiss  "at 
any  time"  for  errors  or  irregularities  arising  from  acts  or  omissions  of  the 
parties  which  tend  to  defeat  the  full  exercise  of  jurisdiction,  and  which  are 
waived  by  failure  to  plead  in  abatement.*  If  the  controversy  by  virtue  of 
the  character  of  the  parties,  subject  matter,  and  value  in  dispute,  is  one  over 
which  Congress  has  conferred  jurisdiction  upon  the  Federal  court  original 
or  by  removal,  then  this  clause  cannot  apply;  5  though  of  course  remand 
of  the  case  might  be  necessary  for  irregularity  in  the  removal  proceedings.^ 
It  has  reference,  moreover,  to  the  real  and  substantial  character,  of  the  con- 
troversy, and  not  merely  to  the  case  made  out  in  the  face  of  the  pleadings; 7 
and  since  that  may  not  fully  appear  until  the  trial,  the  court  is  permitted 
to  dismiss  or  remand  at  any  time.s  So  a  case  nominally  between  an  alien 
and  a  citizen  will  be  dismissed  Avhen  really  between  a  county  and  one  of 
its  citizens. 9  However,  where  there  has  been  no  collusion,  and  a  defendant 
removes  in  good  faith  believing  citizenship  to  be  diverse,  it  has  been  decid- 
ed that  the  plaintiff  after  trial  cannot  be  heard  to  deny  the  diversity  of 
citizenship  and  so  procure  a  remand,io  though  another  case  has  declared 
that  the  removing  party  may,  on  appeal,  allege  want  of  jurisdiction  in 
the  Federal  court,  as  ground  of  error. n  Where  the  sustaining  of  demurrer 
as  to  part  of  plaintiff's  cause  of  action  leaves  a  balance  in  dispute,  below 
the  jurisdictional  amount,  it  would  seem  improper  to  dismiss  or  remand 
so  long  as  the  original  demand  made  out  a  case  really  and  substantially 
within  the  court's  jurisdiction.! 2  But  if  plaintiff  includes  in  his  demand 
part  of  debt  he  knows  to  be  paid,  in  order  to  make  the  jurisdictional 
value,  the  court  will  dismiss  the  cause  when  that  fact  is  brought  out.is 

[g]     Section  inapplicable  where  jurisdiction  lawfully  attached  in  first  in- 
stance. 
This  provision  as  to  dismissal  did  not  supersede  the  established  princi- 
ple that  where  jurisdiction  has  rightfully  attached,  the  transfer  or  devolu- 
tion of  the  right  involved  will  not  oust  it,i6  nor  the  principle  which  per- 

3Rosenbaum  v.   Bauer,    120   U.    S.  sWilliams  v.  Nottawa  Tp.   104  U. 

459,  30  L.  ed.  747,  7   Sup.   Ct.  Rep.  S.  209,  26  L.  ed.  716. 

633.  9  Cash  man  v.  Amador,  etc.  Co.  118 

4See  Osgood  v.  Cliicago,  etc.  R.  R.  U.  S.  58,  30  L.  ed.  72.  6  Sup.  Ct.  Rep. 

6   Biss.    336,   Fed.    Gas.    No.    10,004;  926. 

Ruckman   v.    Ruckman,    1    Fed.    591;  lODavies  v.   Lathrop,   13  Fed.   565. 

Betzholdt  v.  American  T.  Co.  47  Fed.  21  Blatchf.  164. 

705:    Woolridge  v.  McKenna,   8   Fed.  1 1 Wabash  R.  R.  v.  Barbour,  73  Fed. 

668;    Xorthcrn    P.    T.   Co.   v.    Lowen-  515,  19  C.  C.  A.  546. 

berg,   18  Fed.   343.     But  see  Webber  i2Levinski  v.  Middlesex  B.  Co.  92 

V.  Bishop,  13  Fed.  49.  Fed.  457,  34  C.  C.  A.  452;   Hardin  v. 

sWarner  v.  Pennsylvania  R.  R.  13  Cass  Co.  42  Fed.  652. 

Blatchf.  231,  Fed.  Cas.  No.  17.186.  isLozano  v.  Wehmer,  22  Fed.  757. 

eOlds  W.  Wks.  v.  Benedict,  67  Fed.  16 Ante,  §  2  [u]. 
1,  14  C.  C.  A.  285. 

TRvan  V.   Young,  9  Biss.   63,  Fed. 
Cas.  No  12,188. 

752 


Procedure]  DISMISSAL   OR    REMAND.  §   81S    [i] 

mits  intervention  and  other  ancillary  proceedings  as  incident  to  a  suit 
which  is  rightfully  of  Federal  cognizance.17  In  other  words  the  question 
whether  a  cause  is  really  and  substantially  a  controversy  of  Federal  cog- 
nizance is  determined  as  of  the  time  when  the  jurisdiction  first  attached; is 
and  in  removal  cases  this  involves  both  the  time  of  removal  and  of  the 
institution  of  the   proceeding.19 

[h]     Parties  collusively  or  improperly  made  or  joined. 

Congress  has  from  the  first  legislated  to  prevent  assignments  and  trans- 
fers made  to  confer  jurisdiction  on  the  Federal  courts; 2  and  the  courts 
have  themselves  made  rules  for  their  protection  against  fraud  in  this 
respect. 3  Prior  to  this  provision  of  the  act  of  1875,  however,  the  court.? 
were  unable  to  dismiss  or  remand  many  such  causes  when  no  plea  in  abate- 
ment was  made.*  The  foregoing  provision  gave  them  that  power. 5  A  case 
brought  in  the  name  of  a  party  who  has  no  interest,  in  order  to  confer 
colorable  jurisdiction  should  be  dismissed; 6  and  if  removed  through  collu- 
sion or  improper  joinder  it  should  be  remanded. 7  So  an  alleged  change  nf 
residence  may  appear  to  be  a  fraudulent  attempt  to  secure  Federal  juris- 
diction.8  However,  if  a  transfer  is  bona  fide  even  though  the  intent  was 
to  confer  jurisdiction,  it  is  not  within  this  provision. 9  Wliere  assignments 
is  made  to  defeat  Federal  jurisdiction,  this  section  affords  no  relief.!  0 

[ij     Dismiss  or  remand. 

These  words  are  not  used  interchangeably,  but  "dismiss"  applies  to  suits 
brought  in  the  circuit  court  and  ''remand"  to  suits  removed  thereto,  n 

17 Ante,  §  3.  Works  v.  Louisville  B.  Co.  122  Fed. 

18 See  Phelps  v.  Oaks,  117  U.  S.  236,  770,  58  C.  C.  A.  576. 
29  L.  ed.  888,  6  Sup.  Ct.  Rep.  714.  ^Little  v.  Giles.  118  U.  S.  602,  30 

isThe  writer  finds  no  cases  so  de-  L.  ed.  271,  7   Sup.  Ct.  Rep.  32;   Mc- 

cliiriiig,  but  it  seeems  clear.    The  de-  Lean  v.  Clark,  31  Fed.  501. 
cision   might  have  been  rested   upon        sAlabama,    etc.    R.    R.   v.    Carroll, 

this  ground  in  Levinski  v.  Middlesex  84  Fed.  780,  28  C.  C.  A.  207. 
B.  Co.  92  Fed.  457,  34  C.  C.  A.  452,        sLanier  v.  Nash,  121  U.  S.  404,  410. 

and  Hardin  v.  Cass  Co.  42  Fed.  652,  30  L.  ed.  947,  7  Sup.  Ct.  Rep.  919; 

in  which    dismissal   was   refused,  al-  Cross  v.  Allen,   141  U.  S.   533,  35  L. 

though  the  value  in  dispute  was  re-  ed.  847,  12  Sup.  Ct.  Rep.  69;  Stanley 

duced  by  the  sustaining  of  demurrers,  v.  Albany  Co.  15  Fed.  483,  21  Blatchf. 

below  the  jurisdictional  sum.  249:    And  see  ante,  §  23. 

2Ante.  §  23.  loOaklev  v.  Goodnow,  118  U.  S.  44, 

3 Ante,  §  2  [q]  et  seq.  30   L.   ed.'61,   6   Sup.    Ct.   Rep.    944: 

4Hartog  v.  IMeniorv.  116  U.  S.  588,  leather  Mfg.  Bank  v.  Cooper.  120  U. 

29  L.  ed.  725,  6  Sup."^Ct.  Rep.  521.  S.  781.  30  L.  ed.  816,  7  Sup.  Ct.  Rep. 

5Supra[a].  777.     See  Dow  v.  Bradstreet,  46  Fed. 

6Lake   Co.   Comrs.   v.   Dudley,    173  826;    Carson   v.   Dunham.    149  Mass. 

U.  S.  2;>3,  43  L.  ed.  689,  19  Sup.  Ct.  56,  14  Am.  St.  Rep.  400,  20  X.  E.  314, 

Rep.  402;  Detroit  v.  Dean,  106  U.  S.  3  L.R.A.  205;  Bmvley  v.  Railroad,  110 

537,  27   L.  ed.  300,   1   Sup.   Ct.  Rep.  N.  C.  318,   14  S.  E.'  777.     It  is  sug- 

560:  Lehigh  M.  etc.  Co.  v.  Kellv,  160  gested  that  the  State  courts   should 

U.  S.  342,  40  L.  ed.  450,  16  Sup.  Ct.  take  notice  of  such  a  fraud:     Pr.ni- 

Rep.   307;    Coffin  v.  Haggin.    11    Fed.  dent.  etc.  Soc.  v.  Ford,  114  U.  S.  635, 

219,  7  Sawy.  509:  Industrial  Guaran-  29  L.  ed.  261.  5  Sup.  Ct.  Rep.  1104. 
ty.   etc.    Co.   V.   Electrical    S.   Co.   58        nCates  v.  Allen,  149  U.  S.  460.  37 

Fed.  543.  7  C.  C.  A.  471;  New  A.  W.  L.  ed.  804,  13  Sup.  Ct.  Rep.  SS3.  977; 
Fed.  Proc— 48.                                       753 


S   S18    tjj  GKNEKAL  AND  MISCELLANEOUS  FROVISIONS.        [Code   Fed. 

LjJ     Costs. 

Where  the  fault  is  distinctly  traceable  to  one  party  and  the  other  is 
free  therefrom,  costs  should  of  course  be  taxed  against  the  former. 1 3 
1'hus,  the  party  removing  is  usually  i4  the  one  in  fault  and  should  pay  the 
costs  of  both  trial  and  appellate  courts. is  Where  parties  are  equally  re- 
sponsible for  the  removal  or  bringing  of  the  suit  in  the  Federal  court,  costs 
have  sometimes  been  refused  to  eitheris  and  sometimes  each  has  been  de- 
creed to  pay  one-half. 1'?  So  where  one  improperly  brought  a  case  in  the 
Federal  court  and  the  other  removed  a  case  thereto,  each  was  decreed  to 
I  ay  his  own  costs. is  There  has  been  some  question  whether  an  attorney's 
(locket  fee  should  be  allowed  as  taxable  costs  upon  remand.  In  a  Michigan 
district  the  usual  $20  docket  fee  was  allowed,i9  but  in  the  district  of 
Indiana  the  right  to  any  docket  fee  was  denied. 20  Elsewhere  the  docket  fee 
of  $10  allowable  in  trials  at  law  without  a  jury  was  deemed  a  fair  com- 
promise.! Compensation  for  typewriting,  pleadings,  motions,  etc.,  has  been 
refused.  2 

o  819.     Either  party  may  notice  cause  for  trial. 

In  all  civil  actions  in  the  courts  of  the  United  States  either  party 
may  notice  the  same  for  trial. 

R.  S.  §  950,  U.  S.  Comp.  Stat.  1901,  p.  695. 

This  provision  was  first  enacted  in  1871.5  In  common  law  causes  the 
State  practice  is  followed  "as  near  as  may  be." 6  This  includes  the  time  of 
giving  notice  of  hearing  on  demurrer  which  is  a  trial  of  an  issue  of  law." 

§  820.     Priority  in  hearing  of  state  cases. 
When  a  State  is  a  part}^  or  the  execution  of  the  revenue  laws  of 

Northern  P.  T.  Co.  v.  Lowenberg,  18  544,  12  Sup.  Ct.  Rep.  922;  North  .\. 

Fed.   339,   9   Sawy.  348-    Gombert   v.  etc.  Co.  v.  Morrison,   178  U.  S.  269. 

Lyon,  80  Fed.  306.     But  see  the  die-  44  L.  ed.  106,  20  Sup.  Ct.  Rep.  869. 

tum  of  Harlan  J.  in  Barney  v.  Lath-  iGFir.st  Nat.  Bank  of  Parker.sbur;,' 

am,  103  U.  S.  205,  216,  26  L.  ed.  518.  v.    Prager.    91     Fed.    689,    34    C.    (' 

isTennessee    v.    Union,    etc.    Bank,  A.  51. 

152  U.  S.  464,  38  L.  ed.  511,  14  Sup.  i7Hancock  v.  Holbrook,   112  U.  S. 

Ct.  Rep.  654.  2.30,   28    L.     ed.  715,  5  Sup.  Ct.  Rep. 

i4But    see    Egerton    v.  Starin.  91  115. 

Fed.   932;    Bane   v.   Keefer,    66    Fed.  isPeper  v.  Fordyce.  119  U.  S.  469. 

610.  30  L.  ed.  435,  7  Sup.  Ct.  Rep.  287. 

isMansfieldv.  Swan,  111  U.  S.  386,  is.Tosslvn  v.  Phillips.  27  Fed.  481. 

28  L.  ed.  462,  4  Sup.  Ct.  Rep.  510;  2oSmitii   v.  Tel.   Co.  81    Fed.  242: 

Hanrick  v.  Hanrick,   153   U.   S.    196,  and  sec  Lozano  v.  AVehmer,  22  Fed. 

38  L.  ed.  685.  14  Sup.  Ct.  Rep.  835;  755. 

Graves  v.  Corbin,  132  U.  S.  590.  33  L.  iRiser    v.    Southern  Rv.  116  Fed. 

ed.    462,    10   Sup.    Ct.    Rep.    196;    La  1014. 

Confiance,   etc.    Co.   v.    Hall,    137   U.  2Pellett    v.    Great    N.    R.    R.    105 

S.  62,  34  L.  ed.  573,  11  Sup.  Ct.  Rep.  Fed.  194. 

5: Walker   v.    Collins.    167   U.    S.   59,  5 Act  Feb.  28,  1871,  c.  99,  §  17,  10 

42   L.  ed.   76,   17    Sup.   Ct.   Rep.   38;  Stat.  439. 

Torrence  v.  Shedd,  144  U.  S.  533,  36  L.  ePost,  §  900. 

ed.  528.  12  Sup.  Ct.  Rep.  726;  Kellam  TRosenbach  v.  Dreyfuss,  2  Fed.  23. 
v.   Keith.  144  U.   S.   570.    36  L.    ed. 

754 


Procedure]  DEPOSIT  OF   MONEYS   PAID   INTO   CX)URT.  §   821 

a  State  is  enjoined  or  stayed,  in  any  suit  in  a  court  of  the  United 
States,  such  State,  or  the  party  claiming  under  the  revenue  laws 
of  a  State,  the  execution  whereof  is  enjoined  or  stayed,  shall  be 
entitled,  on  showing  sufficient  reason,  to  have  the  cause  heard  at 
any  time  after  it  is  docketed,  in  preference  to  any  civil  cause  pend- 
ing in  such  court  between  private  parties. 
R.  S.  §  949,  U.  S.  Comp.  Stat.  1901,  p.  695. 

This  provision  was  enacted  in  1870.9  It  applies  both  to  the  trial  docket 
and  to  hearing  on  appeal.  As  the  court  judges  the  sufficiency  of  the  rea- 
son shown,  the  section  is  not  imperative  but  vests  a  discretion  in  the 
court.io  Hence  advancement  of  causes  upon  the  docket  has  been  denied 
where  the  enjoining  of  a  State's  revenue  law  affected  only  one  property 
holder  and  did  not  appear  to  embarrass  the  State's  governmental  opera- 
tions.! i  So  the  motion  must  be  made  on  the  part  of  the  State  or  the  party 
claiming  under  the  revenue  laws.12  The  State  must  be  more  than  a  nomi- 
nal party  as  in  the  case  of  quo  warranto  against  corporate  directors. 1 3  The 
rules  of  the  Supreme  Court  also  provide  as  to  advancement  of  causes  upon 
its  docket.  14  R.  S.  §  949,  has  also  been  referred  to  argumentatively  as 
supporting  the  right  of  Federal  courts  to  enjoin  State  revenue  officers.iB 

§  821.     Deposit  of  moneys  paid  into  court. 

All  moneys  paid  into  any  court  of  the  United  States,  or  received 
by  the  officers  thereof,  in  any  cause  pending  or  adjudicated  in  such 
court,  shall  be  forthwith  deposited  with  the  treasurer,  an  assist- 
ant treasurer,  or  a  designated  depositary  of  the  United  States,  in 
the  name  and  to  the  credit  of  such  court  :Provided,  That  nothing 
herein  shall  be  construed  to  prevent  the  delivery  of  any  such  money 
upon  security,  according  to  agreement  of  parties,  under  the  direction 
of  the  court. 

R.  S.  §  995,  U.  S.  Comp.  Stat.  1901,  p.  711. 

This  provision  was  originally  enacted  in  1871.1"  National  banks  may  be 
designated  as  depositaries  of  the  Ignited  States.is  Though  money  depos- 
ited in  them  is  not  money  in  the  United  States  treasury.is     Money  thus  de- 

9 Act  June  .30.  1870.  c.  181.  16  Stat.         1 4  Post.  §  2040  et  seq. 
17G.  1  "Board  of  Liquidation  v.  ^IcComb. 

loHoge  V.  Richmond,  etc.  R.  R.  93  02  V.  S.  5.31.  2.3  L.  cd.  023:   Parsons 

U.  S.  1,  23  L.  ed.  781.  v.  Marve.  2.3  Fed.  113. 

iiHoge  v.  Riclimond.  etc.  R.  R.  93         ivAct   March    2.    1871.    c.    2.    §    1, 

U.  S.  1.  23  L.  ed.  781.  17  Stat.  1. 

i2Ward  V.  Marvland.  12  Wall.  1()3.         isR.   S.  §  5153.  U.  S.  Comp.   Stat. 

20  L.  ed.  200:  Central  R.  R.  v.  Bour-  1901.   p.   34G5. 

bon  Co.  116  U.  S.  538.  29  L.  ed.  725.         ir'Branch  v.  United  States.  100  U. 

6  Sup.  Ct.  Rep.  601.  S.    674.    25    L.    ed.    759;    Coudert    v. 

isMillerv.  New  York.  12  Wall.  1.59.  Unit<^d   States.  175  U.  S.   180.  44  L. 

20  L.  ed.  259.  ed.  122,  20  Sup.  Ct.  Rep.  56. 

755 


§   822  GENERAL   AND   MISCELLANEOUS   PROVISIONS.      [Code   Fed. 

posited  is  in  the  custody  of  the  law^o  and  in  the  possession  of  the  court 
as  fully  as  though  actually  in  the  clerk's  hands. i  It  is  not  subject  to 
process  even  from  the  same  court  in  another  suit. 2  The  bank  acting  as 
depositary  is  not  to  be  sued. 3  The  principles  of  law  respecting  the  ex- 
clusiveness  of  such  courts  custody,  and  forbidding  interference  by  any  other 
court,  apply  to  such  deposits. 4  Attempts  to  reach  funds  so  deposited,  or  to 
obtain  a  share  thereof,  must  be  by  ancillary  application  in  the  suit  in 
which  the  funds  were  deposited,  not  by  separate  suit  with  different  par- 
ties.5  Claimants  to  the  fund  may  be  heard  at  any  time  prior  to  final  dis- 
tribution.6  Tender  of  payment  by  deposit  in  court  has  long  been  recognized 
both  in  equity  and  common  law  practice.7 

§  822.     Withdrawal    of   deposit — transfer   to    credit    of   United 
States. 

No  money  deposited  as  aforesaid  shall  be  withdrawn  except  by 
order  of  the  judge  or  judges  of  said  courts  respectively,  in  term  or 
in  vacation,  to  be  signed  by  such  judge  or  judges,  and  to  be  entered 
and  certified  of  record  by  the  clerk ;  and  every  such  order  shall  state 
the  cause  in  or  on  account  of  which  it  is  drawn.  And  it  shall  be 
the  duty  of  the  judge  or  judges  of  said  courts,  respectively,  to  cause 
any  moneys  deposited  as  aforesaid,  which  have  remained  in  the 
registry  of  the  court  unclaimed  for  ten  years  or  longer,  to  be  depos- 
ited in  a  designated  depository  of  the  United  States,  to  the  credit 
of  the  United  States. 

R.  S.  §  996  as  amended  by  act  Feb.  19,  1897,  c.  265,  §  3,  29  Stat.  578, 
U.  S.  Comp.  Stat.  1901,  p.  711. 

The  amendment  of  1897  consisted  in  the  addition  of  the  last  sentence 
requiring  deposit  to  the  credit  of  the  United  States  after  ten  years.  The 
first  portion  of  the  section  was  originally  enacted  in  1871.9 

2  0The  Lottawana,  20  Wall.  201,  22  4 Ante,  §  17. 

L.  ed.   259;    In  re   Forsyth,   78   Fed.  sGregory  v.   Boston   S.   I.   Co.   144 

296.                                      '  U.  S.  605,  36  L.  ed.  585,  12  Sup.  Ct. 

iJones  V.  Merchants'  Nat.  Bank,  76  Rep.  783. 

Fed.  683,  22  C.  C.  a.  483,  35  L.R.A.  ein  re  Howard,  9  Wall.  183,  19  L. 

698.     Where  a  bidder  at  judicial  sale  ed.  634 :  Martin  v.  Rainwater,  56  Fed. 

is   permitted   to  deposit   a   cheek   as  10.  5  C.  C.  A.  398. 

part  paymeut  which  by  agreement  is  ^Potter  v.  Gardner,  5  Pet.  722,  8  L. 

to    be    credited    on    a    decree    in    his  ed.  285.     The  power  of  courts  to  or- 

favor.  tliis  need  not  be  deposited  un-  der  payment  of  money  thus  tendered, 

der  this  section :    Curtice  v.  Crawford  to  the  opposite  party,  both  at  law  and 

County  Bank,  124  Fed.  919.  in  equity  is  elaborately  considered  in 

2Gregory  v.  Boston   S.  D.  Co.   144  Caesar  v.  Capell,  83  Fed.  428.  et  seq. 

U.  S.  OaS."  36  L.  ed.  585,  12  Sup.  Ct.  9 Act  March  24,  1871,  c.  2,  §  2,  17 

Rep.  783.  Stat.  1. 

3Jones  v.  Merchants'  Nat.  Bank, 
76  Fed.  683.  22  C.  C.  A.  483,  35  L.R.A. 
098. 

756 


Procedure]  CONSOLIDATION  OF   CAUSES.  §  823   [b] 

§  823.     Consolidation  of  causes. 

When  causes  of  a  like  nature  or  relative  to  the  same  question  are 
pending  before  a  court  of  the  United  States,  or  of  any  Territory, 
the  court  may  .  .  .  consolidate  said  causes  when  it  appears 
reasonable  to  do  so.f^^'f'^^ 

R.  S.  §  921,  U.  S.  Comp.  Stat.  1901,  p.  685. 

[a]  Scope  and  discretionary  nature  of  provision. 

The  section  also  provides  for  making  orders  and  rules  to  avoid  costs  and 
delay  in  such  causes. lo  It  was  enacted  in  1813,ii  and  carried  forward 
without  substantial  change,  into  the  Revised  Statutes.  From  its  wording 
it  is  obvious  that  a  discretion  is  conferred  upon  the  trial  court,i2  and  con- 
solidation orders  made  in  the  exercise  of  that  discretion  will  not  be  set 
aside  on  appeal; is  unless  for  gross  abuse  thereof. i*  Nor  is  such  discre- 
tion controllable  by  mandamus  from  an  appellate  court. is  The  section  ap- 
plies in  equityie  as  well  as  at  law;  and  in  admiralty  it  is  declared  to  be 
merely  declaratory  of  exising  principles. 1 7  Another  provision  of  law  re- 
quires consolidation  of  suits   for  revenue  penalties. is 

[b]  Instances  of  consolidation. 

The  cases  present  a  variety  of  instances  of  consolidation.  Actions  on 
insurance  policies  involving  the  same  risk  and  same  questions  of  fact, 
are  a  common  and  perhaps  the  first  illustration  of  the  enforcement  of  the 
rule.i  Patent  infringement  suits  are  often  consolidated; 2  and  ejectment 
eases  involving  the  same  title. 3  So  suits  involving  the  foreclosure  or  ad- 
ministration of  corporate  assets,  can  frequently  be  consolidated  to  ad- 
vantage. 4  Suits  against  joint  tort  feasors  or  for  different  torts  growing 
out  of  the  same   fax;t,  against  one  defendant  may  be  consolidated. 5     Re- 

loSee  post.  §  1833.  ivSalmon   Falls   Mfg.   Co.   v.  Tan- 

11  Act  July  22.  1813,  c.  14.  3  Stat,  gier,  3  Ware,  110,  Fed.  Cas.  No.  12,- 

21.     Prior  thereto  consolidation  was  267. 

refused  in  absence  of  a  general  rule:  isPost,  §  1384. 

Bank  v.  Young,  2   Cranch  C.  C.   52,  iMutual  L.  I.  Co.  v.  Hillmon,  145 

Fed.  Cas.  Xo.  858.  U.  S.  292,  36  L.  ed.  706,  12  Sup.  Ct. 

i2Seaw€ll   V.   Berry,   55   Fed.   732;  Rep.  909. 

Toledo,  etc.  R.  R.  v.   Continental  T.  2Andrews  v.  Spear.  4  Dill.  470.  Fed. 

Co.  95  Fed.  497.  .36  C.  C.  A.  15.5.  Cas.   No.   379;    Frank  v.   Geiger.    121 

i3Mutual  L.  I.  Co.  V.  Hillmon.  145  Fed.  126:   see  Deering  v.  Winona   H. 

U.  S.  292.  36  L.  ed.  706,  12  Sup.  Ct.  Co.  24  Fed.  90. 

Rep.   909:    Hanover  Ins.  Co.  v.  Kin-  3 See  Keep  v.  Indianapolis,  etc.  R. 

neard,  129  U.   S.   176.   32  L.  ed.  6.53.  R.  10   Fed.  4.55.  3  McCrarv,  302. 

9  Sup.  Ct.  Rep.  269.  4 Wabash,  etc.  R.   R.  v.  Central  T. 

^Lincoln,  etc.   M.   Co.   v.  Hendrv,  Co.  23  Fed.  513:   Continental  T.   Co. 

9  N.  Mex.  152.  50  Pac.  330.               "  v.    Toledo,    etc.    R.    R.    82    Fed.    642; 

i5Le\vis   V.    Baltimore,   etc.    R.   R.  Toledo,  etc.   R.  R.  v.  Continental   T. 

62  Fed.  218,  10  C.  C.  A.  446.  Co.  95  Fed.  497.  36  C.  C.  A.  155. 

i6Tole<lo,  etc.  R.  R.  v.  Continental  sSee  Union  P.  Rv.  v.  .Jones.  49  Fed. 

T.  Co.  95  Fed.  497,  36  C.  C.  A.  155;  343.  1  C.  C.  A.  282:  Keep  v.  Indinna- 

Lant   V.   Kinne,    75    Fed.   636,   21    C.  polis,  etc.  R.  R.   10  Fed.  454,  3  Mc- 

C.  A.  466.  Crarv,    302. 

757 


§   823    [c]         GENERAL    AND    MISCELLANEOUS    PROVISIONS.       [Code   Fed. 

plevin  for  cattle  and  action  for  damages  for  breach  of  contract  of  adjust- 
ment of  same  cattle  may  be  consolidated. 6  Libel  suits  against  different 
newspapers  may  be  consolidated  where  the  principal  issues  are  substantial- 
ly identical  in  all.^  Collision  suits  and  other  proceedings  in  admiralty 
have  been  consolidated. 8  A  bill  to  enjoin  may  be  consolidated  with  a  bill 
to  enforce  an  execution,  the  latter  being  treated  as  a  cross-bill. 9  It  is 
proper  to  consolidate  several  causes  of  action  for  penalties  against  the 
same  defendant. lo  And  where  a  plaintiff  brought  eleven  qui  tam  actions 
for  penalties  against  the  same  defendant,,  his  motion  to  have  decision  on 
demurrer  in  one  stand  for  all,  was  denied  and  he  was  required  to  take  the 
risk  of  costs  and  burden  imposed  by  his  own  action  in  bringing  the  sepa- 
rate suits. 11  Actions  which  might  properly  have  been  consolidated  have 
been  tried  together  and  to  the  same  jury  without  formal  consolidation.! 2 
The  fact  that  service  on  defendants  was  at  different  times  and  a  term  in- 
tervened, does  not  prevent  consolidation; is  nor  does  the  fact  that  de- 
fendants  will  as  a  result   be  brought   into  antagonism.i* 

But  the  purpose  of  consolidation  is  the  saving  of  time,  labor  and  ex- 
;pense,  and  where  that  would  not  result,  it  may  properly  be  denied. is 
Where  proceedings  are  prima  facie  against  distinct  corporations,  consolida- 
tion has  been  refused,  though  they  were  alleged  to  be  practically  the 
same.  16 

[cj     Effect  of  consolidation. 

The  causes  of  action  remain  distinct.is  Consolidation  of  separate  causes 
does  not  deprive  the  parties  to  the  respective  suits  of  their  original  right 
to  three  peremptory  challenges. 1 9  It  does  not  prevent  or  defeat  the  right 
to  dismissal  of  one  of  them. 20  There  must  be  separate  verdicts,  judgments 
or  decrees,!  even  although  the  consolidating  party  wished  for  one  verdict.2 

6Teal   v.  Bilby,   123  U.  S.   573,   31         isDavis   v.    St.   Louis   &   S.    F.   R. 

L.  ed.  263,  8  Sup.  Ct.  Rep.  239.  R.  25  Fed.  786;  Mercantile  T.  Co.  v. 

TButler  V.  Courier-Citizen  Co.  127  Missouri  K.  &  T.  Ry.  41  Fed.  8. 
Fed.  1015.  leCentral  T.   Co.   v.   Virginia,   etc. 

8The  North  Star,  106  U.  S.  27,  27  Co.  55  Fed.  769. 
L.  ed.  96,   1   Sup.   Ct.  Rep.  41;   The        isToledo,  etc.  R.  R.  v.  Continental 

Job    T.     Wilson.     84    Fed.    206;    The  T.  Co.  95  Fed.  506,  36  C.  C.  A.  155. 
Eliza  Lines.  61  Fed.  310;  The  Burke,         i9Mutual  L.  I.  Co.  v.  Hillmon,  145 

4  Cliff.  582.  Fed.  Cas.  No.  2,159.  U.  S.  285,  36  L.  ed.  706,  12  Sup.  Ct. 

9Lant  V.  Kinne,  75  Fed.  636,  21  C.  Rep.  909. 
C.  A.  466.  20 Young  v.    Grand   T.    Ry.   9   Fed. 

loWolverton  v.  Lacey,  18  L.  R.  672,  348,  10  Biss.  550. 
Fed.  Cas.  No.  17,932.  iMutual  L.  I.  Co.  v.  Hillmon,  145 

iiFerrett  v.  Atwill,  1  Blatchf.  151,  U.  S.  285,  36  L.  ed.  706,  12  Sup.  Ct. 

Fed.  Cas.  No.  4,747.  Rep.   909,    but   see   in   an   admiralty 

i2Holmes  v.  Sheridan,  1  Dill.  351,  case:    The  North  Star,  106  U.  S.  27, 

Fed.  Cas.  No.  6,644.  27  L.  ed.  96,  1  Sup.  Ct.  Rep.  41. 

isSmith    V.    Woodward,    2   Cranch        2Union   P.   Ry.   v.   Jones,  49   Fed. 

C.  C.  226,  Fed.  Cas.  No.   13.129.  .343,  1  C.  C.  A.  282. 

KKeep  V.  Indianapolis,  etc.   R.  R. 
10  Fed.  454,  3  McCrary,  302. 

758 


Jl 


Procedure]  ARBITRATION  BETWEEN  CARRIER  AND  EMPLOYEES.         §   826 

§  824.     Actions  for  mining  claims  governed  by  law  of  posses- 
sion. 

JSTo  possessory  action  between  persons,  in  any  court  of  the  United 
States,  for  the  recovery  of  any  mining  title,  or  for  damages  to  any 
such  title,  shall  be  affected  by  the  fact  that  the  paramount  title  to 
the  land  in  which  such  mines  lie  is  in  the  United  States;  but 
each  case  shall  be  adjudged  by  the  law  of  possession. 
R.  S.  §  910,  U.  S.  Comp.  Stat.  1901,  p.  679. 

§  825.     Procedure  upon  arbitration  award  between  carrier  and 
its    employees — filing   award   and    exceptions. 

The  award  [made  by  arbitrators  between  an  interstate  carrier 
and  its  employees  pursuant  to  a  submission  by  the  parties]  and 
the  papers  and  proceedings,  including  the  testimony  relating  there- 
to, certified  under  the  hands  of  the  arbitrators  and  which  shall  have 
the  force  and  effect  of  a  bill  of  exceptions,  shall  be  fded  in  the 
clerk's  office  of  the  circuit  court  of  the  United  States  for  the  dis- 
trict wherein  the  controversy  arises  or  the  arbitration  is  entered 
into,  and  shall  be  final  and  conclusive  upon  both  parties,  unless 
set  aside  for  error  of  law  apparent  upon  the  record.  .  .  .  The 
award  being  filed  in  the  clerk's  office  of  a  circuit  court  of  the 
United  States,  as  hereinbefore  provided,  shall  go  into  practical  op- 
eration, and  judgment  shall  be  entered  thereon  accordingly  at  the 
expiration  of  ten  days  from  such  filing,  unless  within  such  ten  days 
either  party  shall  file  exceptions  thereto  for  matter  of  law  apparent 
upon  the  record,  in  which  case  said  award  shall  go  into  practical 
operation  and  judgment  be  entered  accordingly  when  such  exceptions 
shall  have  been  finally  disposed  of  either  by  said  circuit  court  or  on 
appeal  therefrom. 

Part  of  §§  3  and  4  of  act  June  1,  1898,  c.  370,  30  Stat.  425,  426,  U.  S. 
Comp.  Stat.  1901,  p.  3207,  3208. 

§  826.  —  judgment  and  appeal. 

At  the  expiration  of  ten  days  from  the  decision  of  the  circuit  court 
upon  exceptions  taken  to  said  award,  as  aforesaid,  judgment  shall 
be  entered  in  accordance  with  said  decision  unless  during  said  ten 
days  either  party  shall  appeal  thereform  to  the  circuit  court  of  ap- 
peals. In  such  case  only  such  portion  of  the  record  shall  be  trans- 
mitted to  the  appellate  court  as  is  necessary  to  the  proper  under- 
standing and  consideration  of  the  questions  of  law  presented  by  said 
exceptions  and  to  be  decided.     The  determination  of  said  circuit 

759 


§   S26  GENERAL     AND     MISCELLANEOUS     PROVISIONS.       [Code   Fed. 

court  of  appeals  upon  said  question  sliall  be  final,  and  being  certified 
by  the  clerk  thereof  to  said  circuit  court,  judgment  pursuant  there- 
to shall  thereupon  be  entered  b}^  said  circuit  court.  If  exceptions 
to  an  award  are  finally  sustained,  judgment  shall  be  entered  setting 
aside  the  award.  But  in  such  case  the  parties  may  agree  upon  a 
judgment  to  be  entered  disposing  of  the  subject-matter  of  the  con- 
troversy, which  judgment  when  entered  shall  have  the  same  force 
and  effect  as  judgment  entered  upon  an  award. 

Part  of  §  4  act  June  1,  1898,  c.  370,  30  Stat.  426,  U.  S.  Comp.  Stat, 
1901,  p.  3208. 


760 


I 


CHAPTEE  22. 

WRITS  AXD  PROCESS. 

Cross  references  and  related  matters. 

Form  of  writs  and  process. 

Teste  of  process  from  day  of  its  issue. 

Supreme  Court  process  in  name  of  President. 

Form  of  process  of  circuit  court  of  appeals. 

Amendment  of  circuit  and  district  court  process. 

Power  of  Federal  courts  to  issue  writs. 

Power  of  circuit  court  of  appeals  to  issue  writs. 

Federal  courts'  power  to  issue  writs  of  ne  exeat. 

Supreme  Courts'  power  to  issue  mandamus  and  prohibition. 

Mandamus  to  judicial  officers  for  returns  of  fees. 

Preemptory  mandamus  against  carriers  to  compel   equal   facilities. 

— remedy  by  mandamus  merely  cumulative. 

Mandamus  to  compel  carriers  to  publish  rate  schedules. 

— form  of  its  issuance  and  effect  of  non-compliance. 

Bankruptcy  courts'  power  to  issue  process. 

Statutory  provisions  as  to  place  where  process  is  returnable. 

Provisions  authorizing  service  of  process  throughout  districts  con- 
taining judicial  divisions. 

Place,  mode  and  sufficiency  of  service. 

Process  may  run  in  another  district  of  State  if  some  defendants 
there. 

Process  in  local  actions  may  run  in  another  district  of  State. 

Service   by   publication,   etc.,   in   suits     to    enforce    liens,    remove 
clouds,  etc. 

Service  of  process  when  marshal  is  party. 

Service  of  process  in  suit  against  a  State. 

Service  on  government  in  partition  suits. 

Appearance  as  cure  for  defective  service  or  want  thereof. 

Process  against  foreign   ministers  and  their  domestics  void. 

— penalty  for  suing  out  and  executing  such  process. 

— when  process  may  be  issued  against  persons  in  service  of  minis- 
ters. 
§  8G4.     Issuance   of  prohibition   by   circuit  court   of  appeals   in   admiralty. 

§  835.     Cross  references  and  related  matters. 
Habeas  corpus^  and  injunction^  are  treated  elsewhere.  Attachment 

iPost.  §§  1669  et  seq.  2Post.  ?^  1111  et  seq. 

761 


§ 

835. 

§ 

836. 

§ 

837. 

§ 

838. 

§ 

839. 

§ 

840. 

§ 

841. 

§ 

842. 

§ 

843. 

§ 

844. 

§ 

845. 

§ 

846. 

§ 

847. 

§ 

848. 

§ 

849. 

§ 

850. 

§ 

851. 

§ 

852. 

§ 

853. 

§ 

854. 

§ 

855. 

§ 

856. 

§ 

857. 

§ 

858. 

§ 

859. 

§ 

860. 

§ 

861. 

§ 

862. 

§ 

863. 

I   836  WRITS   AND  PROCESS.  [Code   Fed. 

and  execution  while  discussed  generally  in  this  chapter,^  are  more 
fully  treated  in  the  chapter  on  common  law  procedure.*  Provisions 
as  to  writ  of  error  are  contained  in  the  chapter  on  appeals.^  The 
sections  dealing  with  the  necessity  for  w^its  to  bring  prisoners  into 
court,  or  for  arrest  upon  several  indictments  or  for  removal  from  one 
district  to  another,  are  set  forth  in  the  chapter  on  criminal  proced- 
ure.*^ Equity  and  admiralty  process  may  be  prescribed  by  the  Su- 
preme Court  ;'^  and  the  circuit  and  district  courts  may  also  make 
rules  governing  their  process.^  The  alteration  of  the  time  of  hold- 
ing term  does  not  abate  process  f  or  the  holding  of  special  criminal 
sessions.^"  The  Yellowstone  Park  Commissioner  has  power  to  is- 
sue process  of  arrest.^  ^  Where  a  criminal  cause  is  remitted  from 
circuit  to  district  court,  or  vice  versa,  process  goes  with  it.^^  It 
is  the  marshal's  duty  to  serve  process  :^3  though  the  plaintiff  sue 
in  forma  pauperis. ^'^  Provisions  as  to  imserved  process  in  a  mar- 
shal's hands  on  his  retirement  are  given  elsewhere  ;^  ^  so  also  as  to 
costs  where  several  processes  are  issued  where  one  would  do.^^ 
Provisions  respecting  subpoenas  for  witnesses  will  be  found  in  the 
chapter  on  witnesses.^  ^  Penal  provisions  punishing  the  obstructing 
of  an  officer  executing  writ  or  process^  ^  or  the  stealing  or  falsifying 
of  them^^  are  not  within  the  scope  of  this  work.  The  jurisdiction 
of  the  Federal  courts  to  issue  mandamus  against  the  Union  Pacific 
Railroad-^  and  to  compel  equal  facilities  to  shippers^  is  set  forth  in 
a  preceding  chapter. 
Author's  Section. 

§  836.     Form  of  writs  and  process. 

All  writs  and  processes  issuing  from  the  courts  of  the  United 
States  shall  be  under  the  seal  of  the  court  from  which  they  issue, 
and  shall  be  signed  by  the  clerk  thereof.  Those  issuing  from  the 
Supreme  Court  or  a  circuit  court  shall  bear  teste  of  the  Chief  Jus- 
tice of  the  United  States,  or,  when  that  office  is  vacant,  of  the  as- 

sPost,  841  [c].  i3Ant«,  §  644:  see  also  §  657. 

4Post,  §§  904-907,  925.  1 4 Ante,  §  478. 

BPost,  §§  1923,  et  seq.  is  Ante,  §§  663,  664. 

ePost.  §§  1584,  1581,  1583.  lePost,  §  1832. 

7Ante,  §  802.  iTPost,  §§  1742,  1743.  1748. 

8 Ante,  §  805.  isR.   S.   §   398.   U.   S.   Comp.   Stat. 

9Ante,  §§  367.  304.  1901.   p.  3655. 

loAnte,  §  358.  loR.  S.  §  53.  94  U.  S.  Comp.  Stat. 

ii§  5,  act  May  7,  1894.  28  Stat.  74  1901,  p.  3654. 
U.  S.  Comp.  Stat.  1901,  p.  1563.  2  0Ante,  §  ],59. 

i2Post,  §  1590.  lAnte,  §   152. 

762 


m 


Procedure]  FORM   OF   WRITS    AND   PROCESS.  §  836   [a] 

sociate  justice  next  in  precedence,  and  those  issuing  from  a  district 
court  shall  bear  teste  of  the  judge,  or,  when  that  office  is  vacant, 
of  the  clerk  thereof.    The  seals  of  the  said  courts  shall  be  provided 
at  the  expense  of  the  United  States  J^^'f'^^ 
R.  S.  §  911,  U.  S.  Comp.  Stat.  1901,  p.  G83. 

[a]     Scope  and  general  construction. 

The  foregoing  provision  was  enacted  in  1792,*  although  R.  S.  §  912  as 
to  date  of  teste  was  not  enacted  until  1872.5  Writ  is  a  form  of  process,  and 
process  is  the  larger  or  generic  term.  This  and  the  next  succeeding  sec- 
tion control  as  to  the  sealing,  signing  and  teste  of  Federal  process,  thus 
excluding  the  operation  of  State  laws  under  the  section  conforming  Federal 
to  State  practice  in  common-law  causes,  so  far  as  respects  signing,  seal,  or 
teste. 6  Otherwise  neither  the  form  of  process  nor  its  contents  are  pre- 
scribed by  Congress,7  except  in  admiralty  and  equity.^  In  common-law 
cases  the  State  practice  and  procedure  govern,  both  by  virtue  of  the  general 
conformity  clause,9  and  particular  provisions  respecting  attachment  and  ex- 
ecution.lo  But  while  Congress  has  not  specifically  required  it,  the  general 
style  of  State  process,  which  runs  usually  in  the  name  of  the  State  or 
the  people,  is  very  properly  departed  from  by  the  Federal  courts. n  In 
the  Federal  courts  process  runs  in  the  name  of  the  President. 12  This  prac- 
tice is  not  affected  or  controlled  by  the  fact  that  the  constitution  of  a  State 
where  the  court  sits,  requires  process  to  be  in  the  name  of  the  State.ia 
One  result  of  the  Federal  statutory  requirement  as  to  form  of  process  is 
that  in  States  like  New  York  and  Wisconsin,  where  process  of  summons  is 
issued  and  served  by  the  attorney,  in  the  State  court,  the  Federal  courts 
will  not  adopt  or  follow  that  practice  under  the  conformity  provisions 
of  R.  S.  §  914,  but  will  require  their  summons  to  be  signed  and  sealed  by 
the  clerk. 14  A  suitor  or  his  attorney  may,  however,  draft  the  writ  in  the 
Federal  court  and  a  valid  writ  of  summons  may  be  written  in  over  the 
seal  and  signature  affixed  by  the  clerk  to  a  blank. is  Where  garnishment 
is  accomplished  under  State  practice  by  delivery  of  notice  under  the  writ 
of  attachment  issued,  and  is  not  treated  as  process  by  the  State  courts, 
it  will  not  be  deemed  process  required  to  be  signed  and  sealed  imder  R. 

4 Act  May  8.  1792.  c.  36.  §  1,  1  Stat.  iThamberlain  v.  Men-iing,  47  Fed. 

275.  436. 

sPost.  §  837.  i4Peaslee  v.  Haberstro.  15  Blatchf. 

sGillum  V.  Stewart,  112  Fed.  .30.  472.  Fed.  Cas.  No.  10.8S4:  Dwight  v. 

TJewett   V.   Garrett.    47    Fed.    627;  Merritt,  4  Fed.  614,  IS  Blatchf?  .305; 

Chamberlain  v.  Mensinir,  47  Fed.  436.  Middleton   P.   Co.   v.  Rock  R.   P.  Co. 

sPost.  §§  1195.  936.   '  19   Fed.  253:   Brown   v.  Pond,  5  Fed. 

sPost.  §  900.  37.     As  to  the  proper  form  and  pro- 

loPost,  §§  90.5,  925.  cedure    in   New   York    see    Martin   v. 

iiSce  Chamberlain  v.  Mensing.  47  Criscuola.   10  Blatchf.  211,  Fed.  Cas. 

Fed.  436:    Middleton  P.   Co.   v.  Rock  No.  9.1.50;   Johnson  v.  Healv,  9  Bon. 

R.  Co.  19  Fed.  253.  254.  318,  Fed.  Cas.  No.  7.389. 

i2Middleton   P.  C.  v.  Rock  R.  Co.  is.Jewett  v.  Garrett.  47  Fed.  627. 
19  Fed.  253,  254;  see  post,  §  838. 

763 


$  836   [b] 


WRITS   AND   PROCESS. 


[Code   Fed. 


S.  ij  911.16  Yet  wliere  by  State  practice  garnishment  is  effected  tlirough 
a  garnishee  summons,  running  in  the  name  of  the  State  and  executed  and 
served  by  plaintiff's  attorney,  it  has  been  held  that  such  summons  is  a 
process  and  hence  must  conform  to  R.  S.  §  911.1"  The  original  process  ap- 
prising defendant  of  proceedings  against  him  is  within  tliis  section, 
whether  called  citation  or  summons  or  by  any  other  name. is  This  section 
does  not  apply  to  the  Territories.! 9  Notice  of  motion  for  judgment  on 
a  contract  under  Virginia  practice  is  not  process. 1 9a 

[b]  Teste. 

The  term  teste  is  now  applied  generally  to  the  concluding  attestion  part 
of  a  process,2  0  although  originallj'-  applied  to  the  first  word  of  the  attesta- 
tion. A  Avrit  of  venire  facias  summoning  a  grand  jury  which  bears  teste 
of  the  deputy  clerk  is  fatally  defective.!  A  writ  from  the  district  court 
bearing  teste  of  the  Chief  Justice  instead  of  the  district  judge  is  also  de- 
fective, but  may  be  amended. 2  A  writ  of  error  with  the  teste  of  a  territorial 
court  clerk  instead  of  the  Chief  Justice  must  be  dismissed. 3  But  the  date 
of  the  teste  may  be  amended; 4  or  if  there  is  a  mere  clerical  error  therein 
it  may  be  disregarded. 5  So  a  writ  with  the  teste,  seal,  signature,  and  re- 
turn day,  all  wrong  has  been  amended. 6  If  teste  is  entirely  lacking  in  ;'. 
writ  of  error  it  cannot  be  amended,  but  must  be  dismissed.7 

[c]  Seal  and  signature. 

A  United  States  commissioner  is  not  required  to  have  a  seal  and  his 
warrants  are  not  process  out  of  a  Federal  court  and  may  be  merely  imder 
his  own  hand, 9  at  least  in  States  where  the  local  law  adopted  as  to 
process  of  arrest  by  R.  S.  §  1014, lo  does  not  require  a  seal.n  A  writ  of 
error  bearing  no  seal  is  fatally  defective.  And  it  has  been  said  all  writs  not 
under  seal  are  voidi2  and  must  be  dismissed.13     But  the  absence  of  a  seal 


16 Wile  V.  Colin,  63  Fe<l.  759.  4 Course  i 

iTMiddleton  P.   Co.  v.  Rock  L.  P.  ed.  726. 

Co.  19  Fed.  252.  sQ'Dowd 

isSee  Gillum  v.  Stewart,  112  Fed.  20  L.  ed.  857. 


Stead,  4  Dall.  25,  1  L. 
Russell,  14  Wall.  405, 


30. 

i9Hornbuckle  v.  Toombs,  18  Wall. 
648.  21  L.  ed.  966. 

i9aLeas  V.  Merriman,  132  Fed. 
510. 

2oE.  g.  "Witness  the  Hon.  Melville 
W.   Fuller.   Chief  Justice  of  the  Su- 


6Texas,  etc.  Ry.  v.  Kirk,  111  U.  S. 

487,  28  L.  ed.  481,  4  Sup.  Ct.  Rep. 
500. 

TMoulder  v.  Forrest,  154  U.  S.  567, 
19  L.  ed.  154.  14  Sup.  Ct.  Rep.  1207. 

9Starr  v.  United  States.  15.3  U.  S. 
614,  38  L.  ed.  841,  14  Sup.  Ct.  Rep. 


preme    Court    of    the   United    States,    919.     A  recent  amendment  however, 

this  day  of  in  the  year    provides  for  a  seal  for  commissioners. 

of  our  Lord ,  and  of  the  independ-    See  ante,  §  672. 


ence  of  the  United  States  the 

lUnited   States   v.   Antz,    16    Fed. 

122,  1  Woods,  174. 

2United   States  v.  Turner,  50  Fed. 

734. 

swells  F.  Co.  V.  McGregor,  13  Wall. 

188,  20  L.  ed.  538;  Germain  v.  Mason, 

154  X'.  S.  588,  20  L.  ed.  689.  14  Sup. 

Ct.  Rep.  1171 


loPost.  §  1537. 

iiUnited  States  v.  Clough.  55  Fed. 
374,  5  C.  C.  A.  140. 

i20verton  v.  Check,  22  How.  48,  16 
L.  ed.  285 ;  Washington  v.  Dennison, 
6  Wall.  496,  18  L.  ed.  863. 

i3lnsurance  Co.  v.  Hailock,  6  Wall. 
.5.58,  18  L.  ed.  948. 


764 


Procedure]   FORM  OF  PROCESS  OF  CIRCUIT  COURT  OF  APPEALS.       §   839 

has  been  declared  an  amendable  defect  if  the  writ  is  othrwise  in  proper 
form  as  respects  signature,  etc.i*  Where  summons  is  not  signed  by  the 
clerk,  nor  sealed,  the  defect  is  fatal  and  there  is  nothing  to  amend  by.is 
The  fact  that  a  deputy  clerk  signed  a  writ  otherwise  regular,  with  his  own 
name  and  omitted  that  of  the  clerk,  is  at  most  a  mere  irregularity. is  Where 
a  court  has  not  yet  adopted  a  seal,  a  substitute,  ^vith  the  reasons  therefor 
stated,  will  suffice.i^ 

§  837.     Teste  of  process  from  day  of  its  issue. 

All  process  issued  from  the  courts  of  the  United  States  shall 
bear  teste  from  the  day  of  such  issue. 

R.  S.  §  912,  U.  S.  Comp.  Stat.  1901,  p.  683. 

This  provision  was  enacted  as  part  of  a  statute  "to  further  the  adminis- 
tration of  justice"  in  1872.2  0  Previously  it  was  the  practice  to  make  writ 
of  error  bear  teste  of  the  term  preceding  that  to  which  it  was  made  re- 
turnable.! Now  it  is  proper2  and  indeed  imperative  that  it  bear  teste  from 
the  day  of  its  issue;  and  it  is  returnable  in  thirty  and  sixty  days. 3 

§  838.     Supreme  Court  process  in  name  of  President. 

All  process  of  this  court  shall  be  in  the  name  of  the  President 
of  the  United  States. 

Supreme  Court  rule  5,  part  1. 

This  rule  was  originally  promulgated  Feb.  5,  1790.5  It  was  revised  as 
at  present  at  the  December  term  1858.6  It  is  also  the  practice  in  all  the 
other  Federal  courts  to  have  process  run  in  the  name  of  the  President.'? 

§  839.     Form  of  process  of  circuit  court  of  appeals. 

All  process  of  this  court  shall  be  in  the  name  of  the  President 
of  the  United  States,  and  shall  be  in  like  form  and  tested  in  the 
same  manner  as  process  of  the  Supreme  Court. 
Original  circuit  court  of  appeals,  rule  No.  9. 

This  rule  is  in  force  without  modification,  in  each  of  the  nine  circuits. 

i4See  Wolf  V.  Cook.  40  Fed.  4.34;  2  0 Act  .June  1,  1872,  c.  255,  17  Stat. 

Peasle«  v.  Haberstro,  15  Blatchf.  472,  197. 

Fed.  Cas.  No.  10,884.  iHaniilton  v.  Moore,  3  Dall.  377.  1 

i5Dwight    V.    Merritt,   4   Fed.    614.  L.  ed.  642. 

18   Blatchf.   305;    Brown   v.   Pond,   5  2Sce  Atherton  v.  Fowler,  91  U.  S. 

Fed.  37.  143,  23  L.  ed.  265. 

leBragg   v.    Lorio.    1    Woods,   209,  sPost,  §  1950-1952. 

Fed.  Cas.  No.  1,800;  Griswold  v.  Con-  sSee  2  Dall.  399,  1  Cranch,  XVI,  1 

nollv.   1   Woods,    193,   Fed.    Cas.  No.  Pet.  VI,  1  Wheat.  XIV. 

.5.833.  621  How.  6. 

tnVehrman  v.   Conklin,   155  U.  S.  "See  Middleton  P.  Co.  v.  Rock  R. 

3.30,  39  L.  ed.   167,  15  Sup.  Ct.  Rep.  Co.  19  Fed.  252. 
1 20. 

765 


§  840  WRITS  AND  TROCESS.  [Code  Fed. 

§  840.     Amendment  of  circuit  and  district  court  process. 

Any  circuit  or  district  court  may  at  any  time,  in  its  discretion^ 
and  upon  such  terms  as  it  may  deem  Just,  allow  an  amendment  of 
any  process  returnable  to  or  before  it,  where  the  defect  has  not 
prejudiced,  and  the  amendment  will  not  injure,  the  party  against 
whom  such  process  issues. 

R.  S.  §  948,  U.  S.  Comp.  Stat.  1901.  p.  695. 

R.  S.  §  954  empowers  the  court  to  amend  process  and  pleadings  and  tO' 
disregard  merelj^  formal  defects. 9  There  is  also  a  specific  provision  of  the 
Revised  Statutes  permitting  amendment  of  writ  of  error. lo  The  general 
power  to  amend  process  is  discussed  under  R.  S.  §  954. n 

§  841.     Power  of  federal  courts  to  issue  writs. 

The  Supreme  Court  and  the  circuit  and  district  courts  shall 
have  power  to  issue  writs  of  scire  facias."^^^  They  shall  also  have 
power  to  issue  all  writs  not  specifically  provided  for  by  statute,^''^"^^^ 
which  may  be  necessary  for  the  exercise  of  their  respective  juris- 
dictions, and  agreeable  to  the  usages  and  principles  of  law."^®^""^™^ 
R.  S.  §  716,  U.  S.  Comp.  Stat.   1901,  p.  580. 

[a]     History  and  scope  of  section. 

R.  S.  §  716  was  originally  §  14  of  the  judiciary  act  of  1789,  and  §  5  of 
the  supplementary  act  of  March  2,  179.3.  The  act  of  1891  establishing  the 
circuit  court  of  appeals  conferred  upon  that  tribunal  also,  the  powers  above 
specified. 14  The  section  confers  the  power  on  the  courts,  and  while  it 
has  been  held  that  a  judge  at  chambers  may  issue  a  writ; is  the  section 
grants  no  power  in  the  issuing  of  writs  to  commissioners.! 6  The  writ  au- 
thorized by  this  section  need  not  be  agreeable  to  the  principles  and  usages 
of  the  law  of  any  particular  State,  nor  must  they  conform  to  the  State 
law.i"  The  requirement  that  they  be  necessary  to  jurisdiction  and  agree- 
able to  law,  has  been  found  to  involve  important  limitations  in  the  issuance 
of  many  writs  by  the  Federal  courts,  as  subsequent  notes  will  show.is 

[aa]     Scire  facias. 

.jcire  facias  is  generally  used  to  revive  a  judgmenti  or  enforce  a  recogni- 
zance,2  so  that  execution  may  issue  thereon.    In  England  it  has  been  used 

9  Ante,  §  81.3.  is  See    especiallv    infra,     notes  [e], 

loPost.  §  1928.  [f],  [m]. 

iiAnte,  §  813[d].  iWalden  v.  Craig,  14  Pet.  151,  10 

i^See  post,  §  842.  L.  e<l.  393:  Brown  v.  Wvgant,  163  U. 

isBennett  v.  Bennett.  1  Deady.  299,  S.  622,  41  L.  ed.  284,  16  Sup.  Ct.  Rep. 

Fed.  Cas.  No.  L31S.                      '  11.59;  Browne  v.  Chavez,  181  U.  S.  68. 

leChittenden  v.  Darden,  2  Woods,  45  L.  ed.  752,  21  Sup.  Ct.  Rep.  514. 

437,  Fed.  Cas.  No.  2,688.  2Kirk  v.   United   States,   131    Fed. 

iTBank  of  U.  S.  v.  Halstead,  10  334;  Hunt  v.  United  States,  61  Fed. 
Wheat.  51,  6  L.  ed.  266. 

766 


Procedure]       POWER  OF  FEDERAL  COURTS  TO  ISSUE  WRITS.     §   841   [aaj 

for  anuulling  letters  patent;  but  other  remedies  are  substituted  in  tliis 
country. 3  The  Massachusetts  statutory  liability  for  costs  against  the  in 
dorser*  of  a  writ  may  be  enforced  by  scire  facias.  It  is  a  very  convenient 
writ  and  accommodates  itself  to  almost  any  case  in  which  its  use  is  either 
necessary  or  desirable. 5  R.  S.  §  955  provides  for  scire  facias  to  revive  ac- 
tions against  representatives  of  party  dying  before  judgment. 6  In  an  earh 
case  scire  facias  was  invoked  by  Vermont  against  a  charitable  corporation 
to  show  cause  why  certain  lands  claimed  by  it  should  not  be  forfeited." 
It  has  been  used  to  revive  a  judgment  against  a  taxing  district  succeeding 
to  the  fiscal  obligations  of  the  city,  which  was  the  original  judgment 
debtor,s  and  to  revive  a  judgment  against  devisees. 9  It  has  issued  to  en- 
force a  mechanics  lien  in  the  District  of  Columbia  under  a  statute  providing 
that  mode  of  proceeding. lo  By  the  law  of  some  States  a  form  of  scire 
facias  is  used  in  foreclosing  mortgages. n  Its  use  for  the  purpose  of  re- 
viving judgment  in  ejectment  is  considered  in  several  cases. 12  When  used 
to  revive  a  judgment  it  is  a  continuation  of  the  original  suit, is  and  main- 
tainable as  ancillary  regardless  of  citizenship,i4  but  scire  facias  in  a  recog- 
nizance is,  in  a  sense  at  least,  an  original  cause.is  Where  a  law  provides 
the  time  within  which  a  judgment  may  be  revived  by  an  "action"  it  in- 
cludes scire  facias,  and  the  writ  may  not  be  maintained  thereafter  upon  the 
theory  that  it  is  not  an  action. 1 6  It  is  a  judicial  writ  or  writ  of  execution, 
but  so  far  original  that  a  defendant  may  plead  to  it.i'?  A  demurrer  to  the 
writ  is  the  same  in  legal  effect  as  demurrer  to  the  declaration  on  which  it  is 


795,  10  C.  (J.  A.  74;  Morsell  v.  Hall, 

13  How.  215,  14  L.  ed.  117. 
sUnited   States   v.   Stone,   2  Wall. 

525,  17  L.  ed.  7G5;  Mowry  v.  Whit- 
ney, 14  Wall.  434,  20  L.  ed.  858; 
United  States  American  Bell  Tel.  Co. 
128  U.  S.  370-372,  32  L.  ed.  450,  9 
Sup.  Ct.  Rep.  90. 

4 Pullman's  P.  Co.  v.  Washburn,  66 
Fed.  790. 

sGrantland  v.  Memphis,  12  Fed. 
288. 

6Hatch  v.  Eustis,  1  Gall.  160,  Fed. 
Cas.  No.  6,207;  Butler  v.  Poole,  44 
Fed.  586;  Allen  v.  Fairbanks,  40  Fed. 
188;  ante,  §  814. 

"Vermont  v.  Society  for  the  Propa- 
gation, etc.  I  Paine,  652,  Fed.  Cas. 
No.  10,919. 

sGrantland  v.  Memphis,  12  Fed. 
288. 

sDeneale  v.  Archer,  8  Pet.  526,  8 
L.  ed.   1033. 

10 Winder  v.  Caldwell,  14  How.  434, 

14  L.  ed.  487. 

11  Fox  V.  Seal,  22  Wall.  441.  22  L. 
ed.  774;  Black  v.  Black.  74  Fed.  078: 
Kenosha,  etc.  R.  R.  v.  Sperry,  3  Biss. 
309,  Fed.  Cas.  No.  7712. 


izWaldem  v.  Craig,  14  Pet.  151,  10 
L.  ed.  393 ;  Penn  v.  Klyne,  Pet.  C.  C. 
446,  Fed.  Cas.  No.  10,936. 

isMcKnight  v.  Craig,  6  Cranch, 
183,  3  L.  ed.  193;  but  see  Browne  v. 
Chavez,  181  C.  S.  68,  21  Sup.  Ct.  Rep. 
515,  45  L.  ed.  751 ;  Penn  v.  Klyne, 
Pet.  C.  C.  446,  Fed.  Cas.  No.  10,936 ; 
\Vonderly  v.  Lafayette  Co.  77  Fed. 
665. 

14  See  ante,  §  3. 

isUnited  States  v.  Payne,  147  U.  S. 
690,  37  L.  ed.  333,  13  Sup.  Ct.  Rep. 
442. 

leBrowne  v.  Chavez,  181  U.  S.  68, 
21  Sup.  Ct.  Rep.  515,  45  L.  ed.  751 ;  see 
Deneale  v.  Archer,  8  Pet.  530,  8  L. 
ed.  1033. 

iTBrown  v.  Chavez,  181  U.  S.  68, 
21  Sup.  Ct.  Rep.  515,  45  L.  ed.  751; 
Winder  v.  Caldwell,  14  How.  443,  14 
L.  ed.  491;  Brown  v.  Chesapeake  & 
0.  C.  Co.  4  Fed.  770,  Hughes,  584; 
IMcRoberts  v.  Lvon,  79  Mich.  33,  44 
N.  W.  163;  Eddy  v.  Caldwell,  23  Ore. 
166,  37  Am.  St.  Rep.  074,  31  Pac. 
47  6. 


767 


§  841    [b] 


WRITS  AND   PROCESS. 


[Code  Fed. 


or  should  be  based; is  but  it  cannot  reach  defects  in  the  original  proceed- 
ing.! 9  On  scire  facias  after  judgment  debtor's  death  his  representative 
can  make  no  plea  not  open  to  the  original  defendant; 20  nor  is  any  de- 
fense available  of  matters  prior  to  the  oinginal  judgnunit.i  Demurrer  to  the 
writ,  raises  only  (questions  of  law  based  on  facts  in  the  writ  and  cannot  in- 
clude facts  in  the  mashal's  return. 2  Defendant  may  interpose  a  plea  or 
several  pleas  to  the  writ.s  Where  the  writ  is  returned  by  the  marshal 
'"nihil"  an  alias  writ  should  issue,  and  upon  a  like  return  thereon  and 
no  appearance  by  defendant,  judgment  may  be  entered. 4  A  payment  or 
other  plea  which  might  have  been  made  to  an  original  scire  facias  issued 
to  revive  a  judgment  cannot  be  pleaded  to  a  second  writ. 5  Defendants 
claiming  that  other  terre  tenants  have  lands  also  liable  to  the  judgment 
cannot  plead  that  as  a  defense  to  the  writ,  but  should  seek  audita  querela, 
or  a  stay  of  proceedings. 6  No  action  lies  against  one  judgment  debtor  on 
scire  facias  reviving  a  judgment  against  the  other."  Scire  facias  is  based 
on  matters  of  record  and  parol  evidence  is  inadmissible  thereon.  How- 
ever, if  parol  admitted  did  not  vary  the  record  it  is  harmless  error.s  It 
seems  proper  to  follow  the  State  practice  in  the  matter  of  scire  facias 
at  law,  under  the  conformity  requirements  of  R.  S.  §  914.9 

[b]     Writs  otherwise  provided  by  statute — execution. 

Eexecution  is  a  writ  agreeable  to  legal  usages  and  principles  and  power 
to  issue  it  might  be  derived  from  R.  S.  §  710,  which  does  not  authorize 
merely  writs  prior  to  judgment. 12  It  is  not  required  to  be  a  form  of 
execution  agreeable  to  the  usages  and  principles  of  the  common  law,  but 
probably  such  as  is  sanctioned  by  the  principles  and  usages  of  the  State 
laws. 13  Congress  has  undoubted  power  to  make  laws  necessary  for  carry- 
ing Federal  judgn.ents  into  effect. i*     The  power  of  the  Federal  courts  to 


IS  Vermont  v.  Society,  etc.  1  Paine, 
G52,  Fed.  Cas.  No.  16,919. 

i9Dixon  V.  Wilkinson,  3  How.  61, 
11  L.  ed.  491. 

2  0McKnight  v.  Craig,  6  Cranch, 
183,  3  L.  ed.  193;  Janney  v.  Mande- 
ville,  2  Cranch  C.  C.  31,  Fed.  Cas.  No. 
7,2.13. 

1  United  States  v.  Thompson,  Gilp. 
614,  Fed.  Cas.  No.  16,487;  Dickson  v. 
Wilkinson,  3  How.  61,  11  L.  ed.  491. 

2Walden  v.  Craig,  14  Pet.  147,  10 
L.  ed.  393. 

sMorsell  v.  Hall,  13  How.  212,  14 
L.  ed.  117;  Wilson  v.  Watson,  Pet. 
C.  C.  269,  Fed.  Cas.  No.  17,847. 

4Brown  v.  Wygant,  163  U.  S.  618. 
41  L.  ed.  284,  16  Sup.  Ct.  Rep.  1159; 
two  successive  returns  "nihil"  are 
equi\alent  to  personal  service  only 
when  defendant  is  domiciled  or 
found  within  jurisdiction  of  court  is- 

7£ 


suing  writ:     Kirk  v.  United  States, 
131  Fed.  331. 

sWilson  V.  Hurst,  Pet.  C.  C.  441, 
Fed.  Cas.  No.  17,809;  Dickson  v. 
Wilkinson,  3  Hoav.  61,  11  L.  ed.  491. 

eWilson  v.  Watson,  Pet.  C.  C.  269, 
Fed.  Qis.  No.  17,847. 

70w«ns  V.  Henry,  161  U.  S.  646,  40 
L.  ed  837,  16  Sup.  Ct.  Rep.  693. 

sHunt  V.  United  States,  61  Fed. 
793,  10  C.  C.  A.  74. 

9King  V.  Davis,  137  Fed.  205; 
Brown  v.  Chesapeake  &  0.  C.  Co.  4 
Fed.   770,  4  Hughes,  584. 

i2Wayman  v.  Southard,  10  Wheat. 
1,  22,  6  L.  ed.  258 ;  Bank  of  U.  S.  v. 
Halstead,  10  Wheat.  55,  56,  6  L.  ed. 
265.  266. 

isBank  of  U.  S.  v.  Halstead,  10 
Wheat.  56,  6  L.  ed.  266;  Grantland 
;■.  Memphis,  12  Fed.  288;  Adler  v. 
Cole,  12  Wis.  211.. 

14 See  ante,  §  799   [b]. 


riocedure]     POWER  OF   FEDERAL  COURTS  TO  ISSUE  WRITS.       §   841    [d] 

issue  execution  is  derived  from  Congress  and  is  governed  by  R.  S.  §§  91615 
and  990,16  which  do  not  require  the  same  conformity  to  the  State  practice 
as  is  required   by  R.  S.  §  914  respecting  proceedings  prior  to  judgment.i" 

£c]  —  Replevin,  attachment,  garnishment  and  sequestration. 

While  authority  to  issue  the  ordinary  writs  of  replevin,  garnishment  or 
attachment  against  property  might  undoubtedly  be  derived  from  R.  S.  § 
716,  other  provisions  empower  tlie  Federal  circuit  and  district  courts  to  simi- 
lar remedies  by  attachment  or  otherwise  against  the  property  of  defendant 
as  are  given  by  the  State  laws. 19  So  also  the  writ  of  sequestration  is 
provided  for  in  equity  rule.20  R.  S.  §  716  has,  however,  been  relied  upon 
as  authorizing  attachment  against  the  person  for  contempt  or  to  compel 
his  attendance  as  a  witness. i  The  Supreme  Court  has  issued  attachment 
against  sureties  on  a  cost  bond2  under  authority  presumably  derived  from 
that  section.  No  power  is  conferred  on  the  Federal  courts  by  this  or  any 
other  section  and  regardless  of  the  local  law  on  the  subject  to  use  the  proc- 
ess of  foreign  attachment,  i.  e.,  there  is  no  right  to  attach  property  within 
a  given  district  for  the  purpose  of  compelling  a  defendant  not  resident  or 
found  there  to  come  in  and  defend. 3  In  the  Federal  courts  attachment  is 
but  an  incident  of  a  suit  and  unless  the  suit  is  properly  maintainable  the 
attachment  fails. •»  Appearance  waives  the  invalidity  of  such  proceeding. » 
AVhere  the  defendant  in  an  action  begun  in  a  State  court  by  foreign  attach- 
n:ent  and  where  actual  seizure  of  his  goods  has  been  made,  appears  and 
removes  it  to  the  Federal  court,  the  attachment  will  stand  and  the  Federal 
•court  has  jurisdiction  to  proceed.6 

[d]  —  injunction,  habeas  corpus,  writ  of  error,  ne  exeat. 

Injunction  is  clearly  a  writ,  the  issuance  of  which  would  be  authorized 
by  R.  S.  §  716.     Other  sections,  however,  define  the  powers  of  Federal  courts 

15 See  post,  §  0-2.i.  Fed.  310,  6  L.R.A.  253;   Boston,  etc. 

i6See  post,  §  1558.  Co.  v.  Electric,  etc.  Co.  23  Fed.  839; 

iTUnited  States  v.  Arnold,  69  Fed.  Lackett   v.    Rumbaugh,   45    Fed.   30; 

992,  16  C.  C.  A.  575.  Anderson    v.    Shaffer,    10    Fed.   267. 

19R.   S.   §§   915,   933:   see  post,  §§  This  is  because  of  the  provisions  of 

^5.  906.  R.  S.   §  739  and  §   I  of  act  of  Aug. 

20See  post.  §  1097.  13.  18S8;  see  ante.  §  402. 

iVoss  V.  Luke,  1  Cranch  C.  C.  331,  4lbid. 

Fed.   Cas.  No.   17.014;    United  States  sToland  v.  Sprague,  12  Pet.  .331.  9 

V.  Williams.  4  Cranch  C.  C.  372.  Fed.  L.  ed.   1105;   Central  T.  Co.  v.  Chat- 

Cas.  No.  16,712;   see  Equity  Rule  18,  tanooga.  etc.  R.  R.  68  Fed.  695.  696. 

post,   §   1507.                            "  sAmsinck    v.    Balderston.    41    Ved. 

2Craig  V.  Leitensdorfer,   127  U.   S.  641;    Crocker    Nat.    Bank    v.    Pagen- 

764.   32   L.  ed.   322.   8   Sup.   Ct.   Rep.  stecher.    44    Fed.    705:    Vermilvn    v. 

1393.  Brown,  65   Fed.    149;    see  New  "York 

SToland    v.    Sprague.    12   Pet.    330.  1..  E.  etc.  R.  R.  Co.  v.  Estill.  147  U. 

'9  L.  ed.  1105:  Chaffoe  v.  Havward.  20  S.  .591.  37  L.  ed.  292.  13  Sup.  Ct.  Rep. 

How.  215.   15    L.    ed.  852:  "Ex   parte  444.    452:     Commonwealth   T.   Co.   v. 

Railway  ("o.  103  U.  S.  794,  26  L.  ed.  Frick,  120  Fed.  6S8 :   contra,  see  Per- 

4(5]  :  Noyes  v.  Canada.  30  Fed.  666:  kins  v.  Hendry.x,  40  Fed.  657. 
Harland   v.  United   States  T.  Co.  40 
Fed.  Proc— 49.                                 769 


§   S41    [e]  WRITS  AND  rUOCESS.  [Code   Fed. 

as  respects  its  use.9  It  has  been  said  that  R.  S.  §  720,  forbidding  injunction 
against  State  court  proceedings,  is  to  be  read  in  connection  with  R.  S.  § 
716  antliorizing  its  use  when  necessary  to  tlie  exercise  of  the  court's  juris- 
diction, lo  Habeas  corpus  was  originally  included  in  the  enactment  here 
under  consideration,  but  its  issuance  by  the  Federal  courts  is  now  other- 
wise provided  for.n  Habeas  corpus  cum  causa  is  authorized  upon  removal 
of  a  cause  where  a  person  is  in  custody. 12  Writ  of  error  is  otherwise  pro- 
vided for. 13  Error  coram  nobis  may  not  be  issued  by  the  circuit  or  dis- 
trict courts  in  criminal  cases. i*  The  writ  of  ne  exeat  is  provided  for  by 
R.  S.  71715  as  respects  the  circuit  and  Supreme  Courts.  It  has  been  held 
at  circuit  that  R.  S.  §  716  empowers  the  district  court  to  issue  the  writ 
when  necessary  to  the  exercise  of  its  jurisdiction.! 6 

[e]     Certiorari. 

R.  S.  §  716,  authorizes  certiorari  in  a  proper  case.i9  Certiorari  is  usually 
defined  as  a  writ  issuing  from  a  superior  to  an  inferior  court  commanding 
the  latter  to  certify  to  the  former  certain  proceedings  before  it.  it  has 
several  uses.  It  is  employed  as  an  auxiliary  process  to  supplement  a  rec- 
ord already  before  an  appellate  court  by  commanding  the  lower  court  to 
certify  additional  facts  or  matters  to  it.  This  use  of  the  writ  by  the 
Supreme  Court  is  regulated  by  rule  14  and  considered  elsewhere.20  it  is 
also  used  as  an  original  process  and  a  mode  of  appeal,  being  a  command  to 
an  inferior  court  to  certify  the  entire  record  in  a  cause  that  the  same  may 
be  reviewed  in  the  appellate  court.  In  this  use  it  differs  from  other  modes 
of  appeal  in  that  its  issuance  is  discretionary  in  the  appellate  tribunal.  1 
The  Supreme  Court  is  expressly  authorized  by  statute  to  employ  the  writ 
in  this  way,  for  the  review  of  decisions  of  the  court  of  appeals  of  the  Dis- 
trict of  Columbia2  and  of  the  circuit  courts  of  appeals.3  The  writ  is  fur- 
ther sometimes  used  in  an  auxiliary  form  prior  to  judgment  in  the  court 
to  which  it  is  directed,  as,  when  directed  to  a  State  court  after  removal  of 
a  cause  to  a  Federal  court,  for  the  purpose  of  obtaining  a  copy  of  the 
record  there  ;4  and  when  used  in  conjunction  with  habeas  corpus  to  enable 
the  court  to  pass  upon  the  matters  raised  by  the  habeas  corpus. 5  But 
ordinarily,  and  as  an  original  process,  it  is  not  proper  prior  to  judgment  iu 

9See  post,  §g  1111,  et  seq.  20See  post,  §  1997. 

loSee  ante,  §  20[a].  lEx  parte  Hitz,   111   U.  S.  766.  28 

11  See  post,  §§  1670-1674.  L.  ed.  592,  4  Sup.  Ct.  Rep.  698;  Har- 

i2See  post,  §  1146.  his  v.  Barber,  129  U.  S.  369.  32  L.  ed. 

i3See  post,  §  1925  et  seq.  697.9     Sup.     Ct.     Rep.    315;     Hire 

i4United  States  v.  Plumer,  3  CliflF.  Tampa,  etc.  R.  R.  168  U.  S.  583,  42 

28,  Fed.  Cas.  No.  16,056.  L.  ed.  589.  18  Sup.  Ct.  Rep.  177. 

isSee  post,  §  843.  2Sef  ante.  §  46. 

isLewis  V.  Shainwald,  48  Fed.  500,  3 See  ante,  §  41. 

501;    contra  see:    Gernon    v.    Boeca-  4This  use  of  the  writ  is  authorize'! 

line,  2  Wash.  C.  C.  130,  Fed.  Cas.  No.  bv  Congress:    Act  March  3,   1875,  § 

5,367.  7":  see  post,  §  1146;  State  v.  Sulliva;i. 

i9ln  re  Tampa,  etc.  R.  R.  168  U.  50   Fed.   593;  -Staffords   v.   King.  90 

S.  587,  42  L.  ed.  589,  18  Sup.  Ct.  Rep.  Fed.  141.  32  C.  C.  A.  536. 

177:    In   re   Martin,   5   Blatchf.   303,  5Ex   parte  Bollman.  4  Cranch,  75, 

Fed.  Cas.  No.  9,151.  2  L.  ed.    554;    Ex    parte    Lange,   IS 

770 


Fiocedure]      POWER  OF   FEDERAL  COURTS  TO  ISSUE   WRITS.        §  841    [e] 

the  court  to  which  it  is  directed.  6  Thus,  certiorari  as  an  original  process 
is  not  a  proper  mode  of  removing  to  the  Supreme  Court  a  cause  pending 
in  the  circuit  court  and  not  yet  decided,  upon  the  ground  that  the  former 
properly  has  original  jurisdiction  ;T  and  it  is  equally  improper  as  a  mode 
of  removing  a  case  before  trial,  from  a  district  to  a  circuit  court. s 

R.  S.  §  716  only  authorizes  the  writ  when  necessary  to  the  exercise  of 
jurisdiction.9  Hence  it  does  not  enlarge  jurisdiction,! "  and  if  the  Supreme 
Court  is  not  vested  with  jurisdiction  in  a  given  case,  this  section  does  not 
confer  it.  Having  no  appellate  jurisdiction  over  the  proceedings  of  a  mili- 
tary commission,  the  Supreme  Court  is  not  enabled  by  this  section  to  re- 
view their  proceedings  by  certiorari.il  Xor  will  certiorari  lie  in  a  criminal 
case  over  which  no  appellate  jurisdiction  exists. i*  So  also  it  may  not  be 
substituted  for  the  modes  of  review  provided  by  Congress:  Hence  where  Con- 
gress has  provided  appeal  as  a  mode  of  reviewing  the  decision  of  the  Court 
of  Claims,  the  section  does  not  authorize  certiorari  to  be  employed  in- 
stead.is  The  Supreme  Court's  power  to  issue  certiorari  is  not  at  all 
analogous  to  the  power  exercised  by  the  Kings  Bench  in  England. is  It  has 
been  said  that  except  as  provided  in  the  circuit  court  of  appeals  act,  the 
Supreme  Court  can  never  use  certiorari  as  an  original  process;  but  this 
statement  has  reference  to  its  use  in  an  attempt  to  enlarge  or  vary  the 
Supreme  Court's  appellate  jurisdiction.  In  cases  within  the  Supreme  Court's 
original  jurisdiction  it  would  seem  that  certiorariis  might  sometimes  be 
proper  as  an  original  process.  Moreover,  a  comparatively  recent  case 
adopts  certiorari  as  a  mode  for  relieving  against  the  improper  action  of  the 
circuit  court  in  attempting  to  enjoin  parties  from  taking  a  writ  of  error 
from  the  highest  court  of  a  State;  and  declares,  without  apparently  exam- 
ining the  prior  decisions,  that  while  the  Supreme  Court  has  no  power  to  re- 
view judgments  in  contempt  proceedings  by  appeal  or  error,  certiorari  may 
l)e  used  in  the  absence  of  other  adequate  remedy.  It  is  further  said  that 
certiorari  may  be  allow-ed  as  at  common  law,  to  correct  excesses  of  juris- 

Wall.  166.  21  L.  ed.  872;  In  re  Kaine,  S.  462.  41  L.  ed.  782.  17  Sup.  Ct.  Rep. 

14  How.   103.  148.  14  L.  ed.  .345:  Ex  391,  392:   see  also  infra.  note[   ]. 
parte  Royall.  112'U.  S.  182.  28  L.  ed.         nEx  parte  Vallandigham.  1  Wall. 

690.    5    Sup.    Ct.    Rep.    98:    Ex   parte  251.  17  L.  ed.  589:    In  re  Vidal.   179 

EKigan,  2  Wall.  134.  17  L.  ed.  871;  Ex  U.  S.  127,  45  L.  ed.  119,  21  Sup.  Ct. 

parte   Burford,   3    Cranch,   448,   2  L.  Rep.  48. 
ed.  495.  i4Ex  parte  Gordon,   1  Black,   503, 

ePeople  v.  Lindsav.  1   Idaho,  401;  1"  L.  ed.  134. 
American  C.  Co.  v.  Railwav  Co.   148        isLnited   States  v.   Young.   94   U. 

U.  S.  380.  37  L.  ed.  490.  13  Sup.  Ct.  S.  258.  24  L.  ed.  153. 
Rep.    762:    Ex   parte    Van   Orden,    3        ^^Ex  parte  \  allandigham,  1  Wall, 

Blatchf.  168,  Fed.  Cas.  Xo.  16.870.  ^ol,  17  L.  ed.  oS9. 

..t:,      1  T-    1  o  T^  11    .lo    1         i^f^x  parte  Hitz.  Ill  U.  S.  766.  28 

L  Zri-S  ^'  ^'"'^''^^-  ^  ^''"-  ^^^'  ^  L.  ed.  592.  4  Sup.  Ct.  Rep.  698,  raised 

this    question,   but    there    was    doubt 

sPatterson     v.     United    States,    2  as    to    the    rank    of    petitioner   as    a 

Ulieat.  225,  4  L.  ed.  225.  foreign  minister,  and  his  application 

9Ex  parte  Van  Norden,  3  Blatchf.  was   denied.     See   Commonwealth   of 

166.  Fed.  Cas.  No.  16.870.  Kentuckv  v.   Dennison,  24   How.  6", 

10 But  see  In  re  Chetwood.  165  U.  16  L.  ed'  717. 

771 


S   841    [ee]  WRITS  AND  PROCESS.  [Code   Fed. 

diction  and  in  furtherance  of  justice  whenever  circumstances  imperatively 
demand  that  form  of  interposition. 20  As  the  writ  issued  in  that  case  to 
[uolect  parties  in  their  right  of  appeal  to  the  Supreme  Court  it  may  fairly 
be  regarded  as  an  auxiliary  use  of  it,  and  '"necessary  for  the  exercise"  of 
the  Supreme  Court's  jurisdiction. 

When  there  is  doubt  whether  certiorari  should  issue,  a  rule  to  show  cause 
should  be  granted. 2  When  used  as  a  mode  of  review  the  questions  dis- 
closed by  the  record  are  examined  and  decided  as  in  other  cases  of  appeal. s 
tl.  S.  §  587  provides  for  bringing  district  court  cases  before  the  circuit 
court  where  the  district  judge  is  unable  to  perform  his  duties,  by  an  ordei- 
an  the  nature  of  certiorari  to  the  clerk.* 

Xee] — Certiorari  by  circuit  court  of  appeals. 

The  same  reasoning  which  forbids  certiorari  as  an  original  process  and 

mode  of  review  by  the  Supreme  Court,  forbids  that  use  of  the  writ  by  the 
■circuit  court  of  appeals. «     Hence  that  court  has  no  power  to  issue  it  as  a 

substitute  for  appeal  or  error  to  review  a  conviction  in  a  lower  court  claimed 

to  have  been  without  jurisdiction. 9  Congress  has  provided  for  the  exercise 
•of  the  appellate  powers  of  that  court  by  appeal  and  writ  of  error  and  this 
■excludes  the  use  of  certiorari  or  prohibition  merely  as  a  mode  of  review. i« 

[f]     Mandamus. 

Mandamus  is  one  of  the  writs  authorized  by  R.  S.  §  71G.13  It  is  defined 
as  a  command  issuing  from  a  court  of  competent  jurisdiction  in  the  name 
of  the  State  or  United  States,  directed  to  some  corporation,  officer  or  in- 
ferior court,  requiring  the  performance  of  a  particular  thing  therein  speci- 
lied,  a  duty  to  perform  which  results  from  the  official  position  of  the  party 
to  whom  it  is  directed  or  by  operation  of  law.  There  must  be  a  clear  legal 
right  to  have  the  thing  done  and  an  absence  of  other  adequate  remedy. n 
The  adequacy  of  other  remedy  is  tested  by  its  availability  in  the  same 
tribunal.  The  fact  that  another  remedy  might  be  had  in  a  State  court  is 
no  objection  to  the  issue  of  the  writ  by  a  Federal  tribunal. is  R.  S.  §  G88 
governs  the  jurisdiction  of  the  Supreme  Court  to  issue  mandamus  and  is 

20Tn   re    Chetwood,   1G5   U.    S.  462.         sWhitnev  v.    Dick.   202  U.   S.   132. 

41   L.  ed.  782,   17   Sup.   Ct.  Rep.  391,  50  L.  ed.   063,  26  Sup.  Ct.  Rep.  584. 
392.     It  is  doubtful   wliether  the  ex-         lojn   re   Paquet,    114   Fed.   440,   52 

pressions    in    this   opinion    should   be  C.  C.  A.  239. 

construed  as  a  repudiation  of  the  rea-         isMcIntire  v.  Wood,  7  Crancli,  504, 

soning     in     the     earlier    cases.      See  3   L.   ed.    420;    Bath   Co.   v.   Ainv,   13 

Travis  Co.  v.  King  Co.  92  Fed.  693.  Wall.     248,     20     L.    ed.     539;    fn    re 

34  C.  C.   A.  620.  Forsytihe,     78     Fed.     301;     Board   of 

2American  Con.  Co.  v.  Jacksonville.  Comrs.  v.  Aspinwall.  24  How.  384,  16 

etc.  Ry.  148  U.  S.  388,  37  1^.  ed.  486,  L.  ed.  735. 
13  Sup.  Ct.  Rep.  758.  uMarbury   v.   Madison,    1    Crancli, 

sllarris  v.   Barber,    129  U.   S.   369,  169-173.  2  L.  ed.  60. 
32  L.  ed.  697,  9  Sup.  Ct.  Rep.  314.  isBoard    of   Comrs.    v.    Aspinwall. 

4See  ante,  §  116.  24  How.  385,  16  1..  ed.  735;  see  Wheel- 

sTravis    Co.    v.    King,    etc.    Co.    92  ing  v.  Baltimore,  1   Hughes,  90,  Fed. 

Fed.  693.  34  C.  C.  A.  620.  Cas.  No.  17,502. 

772 


Procedure]      POWER  OF   FEDERAL  COURTS  TO   ISSUE   WRITS. 


S41    [fj 


elsewhere  considered. is  In  a  few  special  cases  the  circuit  and  district  courts; 
liave  specific  statutory  authority  for  the  issue  of  mandamus.  Thus,  the 
circuit  court  has  power  to  enforce  the  prov^isions  of  the  act  of  1875  respect- 
ing fees  and  costs  of  Federal  officers  by  mandamus; i7  and  to  compel  the 
Union  Pacific  Railroad  to  operate. is  The  circuit  and  district  courts  have 
power  to  compel  carriers  to  grant  equal  facilities  to  sliippers  and  publish 
schedules  of  rates.  i9 

But  apart  from  these  provisions,  the  power  of  the  circuit  and  district 
courts  to  issue  the  writ  is  governed  by  R.  S.  §  716.  It  is  not  dependent  upo  i 
the  laws  or  practice  of  the  individual  States. 2  R.  S.  §  716  limits  the  is- 
suance of  the  writ  to  cases  where  necessary  to  the  exercise  of  their  re- 
spective jurisdictions. 3  That  is,  they  have  power  to  use  it  only  when 
auxcillary  to  a  jurisdiction  already  otherwise  acquired.*  Mandamus  will 
not  lie  in  a  Federal  court  to  compel  a  national  bank  receiver  to  allow  a 
claim  based  on  a  State  court  judgment,5  or  otherwise  to  enforce  a  State 
court's  judgment; 6  nor  to  compel  a  city  to  make  a  conveyance; 7  nor  to 
compel  a  municipality  to  transfer  its  bonds  to  an  aided  railroad  as  agreed.- 
The  circuit  and  district  courts  may  not  use  mandamus  as  an  original  process 
against  executive  officers  of  the  government  to  compel  them  to  perform 
a  duty. 10  Their  power  to  issue  the  writ  is  no  larger  when  sitting  in  States- 
where  mandamus  is  regarded  as  a  civil  action. n  Nor  is  it  larger  where 
an  action  for  mandamus  is  begun  in  a  State  court  and  removed  to  the 
Federal  court;  and  such  a  suit  is  not  removable. 12 

But  they  may  use  it  as  an  auxiliary  process.  Where  having  jurisdiction 
of  a  suit  against  a  county  the  circuit  court  has  entered  judgment, i'  it 
may  in  the  absence  of  other  remedy  for  its  enforcement,  compel  the  county 


leSee  post,  §  844. 

IT  See  post.  §  845. 

18 Ante,  §  157. 

19 See  post.  §§  846-«49. 

2Board  of  Liquidation  v.  United 
States.  108  Fed.  689.  47  C.  C.  A.  587. 

3Riggs  V.  Johnson  Co.  6  Wall.  184. 
19t8,  IS  L.  ed.  768:  McTntire  v.  Wood, 
7  Cranch,  506.  716,  3  L.  ed.  420; 
Rosenbaum  v.  Bauer,  120  U.  S.  458, 
30  L.  ed.  743,  7  Sup.  Ct.  Rep.  634; 
Graham  v.  Norton.  15  Wall.  427.  21 
L.  ed.  177:  Greene  Co.  v.  Daniel,  102 
U.  S.  187,  26  L.  ed.  101. 

*Mvstic.  etc.  Co.  v.  Chicago,  etc. 
Ry.  13.2  Fed.  289;  Large  v.  Consol. 
etc.  Bank.  137  Fed.  168;  In  re  Cole- 
man. 131  Fed.  151. 

5Denton  v.  Baker,  79  Fed.  194.  24 
C.  C.  A.  476. 

sljiited  States  v.  New  Orleans,  117 
Fed.  610,  54  C.  C.  A.  106. 

'Provisional  Municip.  v.  Lehman, 
57  Fed.  330,  331,  6  C.  C.  A.  349. 


sSmitli  V.  Bourbon  Co.  127  U.  S. 
112,  32  L.  ed.  73,  8  Sup.  Ot.  Rep. 
1046. 

io]\IcTntire  v.  Wood.  7  Cranch.  504. 
3  L.  ed.  420;  Van  Antwerp  v.  Hul- 
burd.  7  Blatchf.  426.  433,  Fed.  Cas. 
No.  16.826.  But  the  courts  of  the 
District  of  Columbia  may  do  so;  see 
Kendall  v.  United  States,"  12  Pet.  617, 
9  L.  ed.  1218. 

iiGares  v.  Northwestern,  etc. 
Assn.  55  Fed.  210. 

i2Rosenbaum  v.  Supervisors,  28 
Fed.  224:  Rosenbaum  v.  Baiier,  120 
U.  S.  453.  30  L.  ed.  745.  7  Sup.  Ct. 
Rep.  634:  Kellv  v.  Grand  Circle,  129 
Fed.  830:  State  v.  Lake  E.  &  W.  Ry. 
85  Fed.  3;  contra  Erwin  v.  Walsh.  27 
Fed.  580.  23  Blatchf.  535. 

i3.Tudgment  is  a  necessary  pre- 
requisite: Green  Co.  v.  Daniel.  102 
V.  S.  195,  26  L.  ed.  101  ;  McCauley  v. 
Kellogg,  2  Woods,  IS,  Fed.  Oas.  No. 
8.688. 


773 


g   841    [fij  WUrrS   AND   I'KOCESS.  [Code  l'>a. 

officers  to  levy  a  tax  to  pay  it,i4  though  it  will  refuse  the  remedy  if  the 
judgment  is  invalid. is  Formerly  when  the  circuit  court  had  appellate  power 
over  the  district  court,  mandamus  was  sometimes  a  proper  auxiliary  process 
in  aid  of  the  circuit  court's  jurisdiction;  but  its  use  was  of  course  subject  to 
the  usual  tests  determining  the  propriety  of  the  remedy  by  mandamus. i^ 
While  the  use  of  mandamus  to  compel  a  State  court  to  allow  the  removal 
of  a  cause  might  be  deemed  ancillary,  it  would  be  improper  on  grounds  of 
comity  and  unnecessary.!  s  Mandamus  by  a  court  to  its  clerk  to  compel  the 
allowance  of  a  claim  against  a  fund  in  court  is  unnecessary  and  improper 
as  a  single  order  will  suffice.i'J  It  is  a  proper  auxiliary  use  of  mandamus, 
however,  to  compel  a  corporation  to  transfer  stock  on  its  books  to  a  pur- 
chaser at  Federal  execution  sale. 20  Mandamus  in  aid  of  a  judgment  is  in 
the  nature  of  an  execution  and  not  a  proceeding  in  equity ;i  and  should  con- 
form to  the  practice  in  common-law  actions. 2 

The  effect  of  denjing  the  inferior  Federal  courts  power  to  mandamus 
executive  officers  of  the  Federal  government  by  a  proceeding  instituted  for 
that  purpose  and  of  the  rule  that  the  State  courts  are  equally  without  that 
power,5  is  much  mitigated  by  the  further  well-settled  rule  that  the  Supreme 
Court  of  the  District  of  Columbia  has  power  to  mandamus  such  officers  in 
cases  where  that  remedy  is  proper. 6 

[ff] — mandamus  by  circuit  court  of  appeals. 

The  power  of  the  circuit  court  of  appeals  to  issue  mandamus  is  subject 
to  the  limitations  prescribed  in  R.  S.  §  716.8  Being  exclusively  an  ap- 
pellate court  it  may  use  the  writ  only  in  aid  of  its  appellate  jurisdiction. >* 
It  may  not  mandamus  an  inferior  court  to  compel  it  to  accept  a  certain 
bail, 10  or  to  take  jurisdiction,  n  or  dismiss  a  cause  for  want  of  jurisdic- 

i4Riggs  V  Johnson  Co.  6  Wall.  188,  iKinnev   v.   Eastern,   etc.   Co.    12," 

IS  L.  ed.  774;   Bath   Co.  v.  Amy,  13  Fed.  2&7,  59  C.  C.  A.  58G;  Carter  Co. 

Wall.   249,   20  L.   ed.   541;    Heine  v.  v.  Schmalstig,  127  Fed.  126,  62  0.  C. 

Levee  Comrs.  19  Wall.  660,  22  L.  ed.  A.  78. 

226:   Strvker  v.  Boanl  of  Comrs.  77  2Cleveland   v.    United    States,    127 

Fed.  574,"  23  C.  C.  A.  286 ;  Labette  Co.  Fed.  667,  62  C.  C.  A.  393. 

Comrs.   V.  United   States,   112   U.    S.  sMcClung    v.    Silliman,    6  Wheat. 

217,  28  L.  ed.  698,  5  Sup.   Ct.  Rep.  598.  G04,  5  L.  ed.  341. 

108.  GKendall  v.  United  States,  12  Pet. 

isMoore  v.  Edgefield.  32  Fed.  496.  610.  9  L.  ed.  1215:  Decatur  v.  Pauld- 

isSmith  V.  Jackson,  I    Paine,   455,  ing,  14  Pet.  497,  10  L.  ed.  559;  United 

Fed.  Cas.  No.  13.064;  The  New  Eng-  States  v.  Lamont,  155  U.   S.  308,  39 

land,  3  Sumn.  495.  Fed.  Cas.  No.  10.-  L.   ed.     163,     15     Sup.    Ct.   Rep.   98: 

151;   The  Enterprise,  3  Wall.  Jr.  58,  United  States  v.  Black,  128  U.  S.  48. 

Fed.  Cas.  No.  4.500:  Ex  parte  Hoyt.  32  L.  ed.  357.  9  Sup.  Ct.  Rep.  14. 

13  Pet.  279.  10  L.  ed.  162.                 '  sSee  post,  §  842. 

isLadd  V.  Tudor.  3  Wood.  &  M.  33-2.  sBarber.    etc.    Co.    v.    Morris,    1.32 

Fed.  Cas.  xno.  7.975:  Fisk  v.  Union  P.  Fed.  945,  66  C.  C.  A.  55. 

R.  R.  6  Blatchf.  396,  Fed.  Cas.  No.  lOUnited  States  v.  Judges,  85  Fed. 

4,827;    Hough    v.    Western  T.  Co.   1  179,  29  C.  C.  A.  78. 

Biss.  425.  Fed.  Cas.  No.  6.724.  nUnited   States  v.   Swan,  65  Fed. 

i9ln  re  Forsvthe,  78  Fed.  301.  647,  13  C.  C.  A.  77. 

2  0Hair  v.  Burnell,  100  Fed.  280. 

774 


I 


Pioeedurej      POWER  OF   FEDERAL   COURTS  TO  ISSUE   WRITS.      §S41    [fff] 

tion,i2  or  to  punish  for  contempt  after  the  lower  court  has  acquitted.is 
jMandamus  is  not  a  proper  remedy  to  correct  a  misconstruction  of  the 
mandate  of  the  appellate  court  after  a  cause  has  been  returned  to  the  cir- 
cuit court,  14  nor  to  compel  the  lower  court  to  revoke  its  order  staying 
proceedings  in  execution  of  mandate  where  new  circumstances  have  since 
arisen.i5  Though  it  is  a  proper  remedy  where  a  stay  of  execution  of  a 
mandate  was  unwarranted  and  improper.is 

[fff]     Practice  in  issuance  of  mandamus 

While  the  practice  is  mandamus  proceedings  in  the  Supreme  Court  is 
unaffected  by  the  procedure  in  particular  States, 20  it  seems  the  better  rule 
that  mandamus  proceedings  in  the  circuit  and  district  courts  should  con- 
form under  R.  S.  §  914  "as  near  as  may  be"'  to  the  State  practice.i  It  is 
essentially  a  common-law  remedy, 2  although  a  jury  is  not  required  for  the 
determination  of  issues  of  fact  therein. 3  However  some  cases  have  taken 
the  view  that  conformity  to  State  practice  is  not  required.*  In  any  event, 
the  power  to  issue  the  writ  is  denied  from  the  act  of  Congress; 5  and  the 
fact  that  State  statute  forbids  it,  is  of  no  moment.6  The  application  for 
the  writ  is  usually  in  the  form  of  verified  petition  or  complaint  or  by  in- 
formation.7  The  writ  usually  issues  in  the  alternative  form;S  and  a  hear- 
ing is  had  upon  the  return,  before  a  peremptory  writ  will  issue.  There  must 
be  some  notice  or  rule  to  show  cause  before  peremptory  mandamus  will  be 
granted.9  Generally  some  demand  for  the  performance  of  the  re(iuired 
act  must  be  shown;  10  though  not  where  the  public  interests  are  concerned,!  1 


i2United  States  v.  Severens,  71 
Fed.  768,  18  C.  C.  A.  314. 

isMinnesota  Plow  Co.  v.  Dowagiac 
M.  Co.  126  Fed.  746,  61  C.  C.  A.  352. 

14  James  v.  Central  T.  Co.  108  Fed. 
929,  47  C.  C.  A.  374. 

i5United  States  v.  Marshall,  122 
Fed.  428,  58  C.  C.  A.  410. 

16L.  Bucki  &  Son  Co.  v.  Atlantic 
L.  Co.  128  Fed.  339,  63  C.  C.  A.  62. 

20Post,  §  S44[i]. 

iWisdom  V.  Memphis,  2  Flip.  285, 
Fed.  Cas.  No.  17,903;  Stewart  v. 
Justices,  etc.  47  Fed.  482,  484;  Laird 
V.  Mayor,  25  Fed.  70,  per  Brewer,  J. 
And  see:  Mayor,  etc.,  v.  United 
States,  104  Fed.  115,  116;  Loute  v. 
Alleghany  Co.  10  Pittsb.  L.  J.  241, 
Ffd.  Cas.  No.  8,544;  Northern  Pac.  R. 
E.  V.  Dustin,  142  U.  S.  508,  35  L.  ed. 
1098,  12  Sup.  Ct.  Rep.  283.  following 
the  State  practice  without  discus- 
sion. 

^Heine  v.  Levee  Comrs.  19  Wall. 
660.  22  L.  ed.  220. 

3ln  re  Delgado,  140  U.  S.  580,  35 
L.  ed.  578.  11  Sup.  Ct.  Rep.  8/4. 

4See  Davenport  v.  Dodge  Co.  105  C 


S.  242,  26  L.  ed.  1018;  United  States 
V.  Union  Pax;.  Ry.  2  Dill  527,  Fed. 
Cas.  No.  16,599;  Rusch  v.  Des  Moines 
Co.  Wooolw.  313,  Fed.  Cas.  No.  12,- 
142;  Mayor  v.  Lord,  9  Wall.  413,  19 
L.  ed.  707.  The  last  two  of  these 
cases  were,  however,  decided  before 
the  conformity  law  of  1872,  and  are 
not  of  much  weight  now. 

5  Commissioners  of  Knox  Co.  v. 
Aspinwall,  24  How.  376,  16  L  ed. 
735;  Board  of  Liquidation  v.  United 
States,  108  Fed.  691.  47  C.  C.  A.  5S7. 

6Hart  V.  New  Orleans,  12  Fed.  292; 
New  Orleans  v.  Morris,  3  Woods,  103, 
115,  Fed.  Cas.  No.  10,182. 

vSee  Deuel  Co.  v.  First  Nat.  Bank, 
80  Fed.  264,  30  C.  C.  A.  30;  United 
States  V.  Brown,  41  Fed.  481. 

sSoe  United  States  v.  Cape  G.  Co. 
10  Fed.  836.  5  i\IcCrary,  280. 

9  Fairbanks  v.  Amoskcag  Nat. 
Bank,  30   Fed.  002. 

loUnited  States  v.  Boutwell,  17 
Wall.  007,  21  L.  ed.  722;  United 
States  V.  Indian  G.  D.  85  Fed.  933. 

iiNortliern   P.   R.   R.   v.    Wasjiing- 


775 


S   841    [g] 


WRITS  AND   PROCESS. 


[Code  Fed. 


nor  demand  upon  all  of  the  ollicers  involved.i2  Mandamus  cases  are  still 
often  brouglit  in  the  name  of  the  government  upon  the  relation  of  the 
party  affected, 1 3  and  this  is  especially  proper  where  sought  to  enforce  a 
public  duty;iii  but  where  merely  for  the  purpose  of  enforcing  some 
private  right  it  is  a  survival  of  times  when  mandamus  was  a  strictly 
prerogative  writ.  The  relator  is  the  real  party  in  interest  where  it  is 
souglit  to  enforce  a  mere  private  right. 1 6  The  writ  must  be  directed 
to  the  holder  of  the  office  and  not  merely  the  office  itself  ;17  but  it 
makes  no  difference  that  the  incumbents  are  not  the  same  as  at  the 
time  the  right  accrued. is  Several  different  officers  may  be  joined  where 
all  have  a  duty  to  perform  in  the  premises.is  It  must  of  course  is- 
sue to  the  proper  persons. 20  Mandamus  against  a  continuing  board  to  per- 
form some  official  duty  does  not  abate  by  changes  in  its  personnel.  1 
Disobedience  to  a  mandamus  is  punishable  as  contempt.2 

[g]     Writ  of  prohibition. 

Prohibition  is  a  writ  issuing  out  of  a  superior  court  directed  to  the 
judges  or  the  judge  and  parties  to  a  suit  in  an  inferior  court,  commanding 
them  to  cease  proceedings  therein  because  of  want  of  jurisdiction.  Its  ef- 
fect is  to  suspend  all  action  and  prevent  further  proceedings;  it  cannot 
require  affirmative  action  or  undo  anything  already  done. 6  It  enables  the 
appellate  court  in  case  of  disobedience  to  punish  the  inferior  court  as 
being  in  contempt.''  Prohibition  is  a  common  law  writ  and  proceedings 
therein  are  properly  reviewable  by  writ  of  error.s  R.  S.  §  088  authorizes  the 
Supreme  Court  to  issue  the  writ  in  admiralty  causes. 9  But  the  only  other 
authority  to  issue  the  writ  possessed  by  Federal  courts,  is  conferred  by  this 
section,  and  it  limits  the  power  in  terms  to  cases  where  the  writ  is  nec- 
essary to  the  exercise  of  a  jurisdiction  already  otherwise  required.  10  Tlie 
same  limitation  attends  its  use  by  the  circuit  court  of  appeals  whose  powers 


ton,  Dustin,  142  U.  S.  508,  35  L.  ed. 
1098.  12  Sup.  Ct.  Rep.  283. 

i2Marion  Co.  v.  Coler.  75  Fed.  352, 
21  C.  C.  A.  392. 

isSee  Cleveland  v.  United  States, 
127  Fed.  667,  62  C.  C.  A.  39'3. 

isSee  Northern  P.  R.  R.  v.  Wash- 
ington. Dustin,  142  U.  S.  508,  35  L. 
ed.  10^8.  12  Sup.  Ct.  Rep.  283. 

leindiana  v.  Lake  Erie,  85  Fed.  3. 

iTUnited  States  v.  Boutwell,  17 
Wall.  607.  21  L.  ed.  722. 

i8ln  re  Parker,  131  U.  S.  226,  33 
L.  ed.  124.  9  Sup.  Ct.  Rep.  708. 

isLaoette  Co.  v.  United  States,  112 
U.  S.  217,  28  L.  ed.  700,  5  Sup.  Ct. 
Rep.  108. 

2  0Secretary  v.  McGarahan,  9  Wall. 
208.  19  L.  ed.  579. 

iSee  Murphv  v.  Utter,  186  U.  S. 
100.  46  L.  ed.  1074,  22  Sup.  Ct.  Rep. 
776,   reviewing  the  authorities.     See 


ante.  §  816,  where  Congress  has  pro- 
vided against  abatement  by  retire- 
ment of  Federal  officers. 

2 President,  etc.  v.  Mavor  of  Eliza- 
beth, 40  Fed.  799;  United  States  v. 
Green,  53  Fed.  769. 

5 See  Uaiited  States  v.  Hoffman,  4 
Wall.  158,  18  L.  ed.  355. 

eUnited  States  v.  Hoff"man,  4  Wall. 
1.58.  18  L.  ed.  355;  Ex  parte  Jones, 
191  U.  S.  102,  48  L.  ed.  Ill,  24  Sup. 
Ct.  Rep.  27. 

TPenhallow   v.   Doane.   3   Dall.    87. 

I  L.  ed.  507. 

sSmith  V.  Whitney.  116  U.  S.  174, 
29  L.  ed.  601.  6  Sup.  Ct.  Rep.  573. 
sSee  post.  §  844. 
loEx  i)arte  City  Bank,  3  How.  332, 

II  L.  od.  622:  Ex  parte  Gordon.  1 
Black.  505.  17  L.  ed.  134;  In  re 
Bininger.  7  Blatchf.  159,  Fed.  Ca-. 
No.  1.417. 


776 


Procedure]    POWER   OF    FEDERAL    COURTS   TO    ISSUE   WRITS.      §   841    [h] 

in  this  respect  are  defined  by  this  section. n  No  case  yet  presented  has 
l)een  deemed  to  justify  this  auxiliary  use  of  the  writ  and  its  use  has  been 
confined  to  admiralty  cases  as  provided  in  E.  S.  §  688.  It  has  been  refused 
as  a  mode  of  reviewing  contempt  preceedings;i2  as  a  mode  of  rectifying  al- 
leged error  in  setting  aside  a  judgment  after  a  term,  there  being  no  appeal 
to  which  the  writ  could  be  deemed  ancillary; is  as  a  mode  of  reviewing 
bankruptcy  proceedings; i*  criminal  proceedings; is  and  confiscation  pro- 
ceedings.! 6  The  district  court  sitting  in  bankruptcy  has  refused  to  employ 
it  against  a  State  tribunal; i"  or  against  its  own  commissioner  in  a  crim- 
inal proceeding.! 8  The  Supreme  Court  has  recently  refused  to  use  it  to 
prohibit  circuit  court  proceedings  where  there  is  no  remedy  by  appeal  to- 
the  circuit  court  of  appeals; i9  or  to  issue  it  where  the  proceeding  to  be- 
prohibited  had  already  passed  to  judgment. 20  It  seems  that  the  Supreme 
Court  of  the  District  of  Columbia  has  full  common  law  power  to  issue 
prohibition;  but  the  qitestion  of  its  power  or  the  power  of  any  court  to 
issue  the  writ  to  a  court  martial  although  raised,  has  not   been  decided.! 

[h]     Writ  of  supersedeas. 

R.  S.  §  716  authorizes  the  writ  of  supersedeas. 4  Other  provisions  of  law 
declare  the  terms  and  circumstances  upon  which  parties  are  entitled  to- 
supersedeaso  and  no  writ  is  ordinarily  necessary.6  It  may  however  be  is- 
sued by  the  Supreme  Court  whenever  necessary  to  the  exerci.se  of  its  appel- 
late jurisdiction.''  And  when  through  mistake  or  otherwise,  the  judgment 
below  is  in  fact,  being  carried  into  execution  notwithstanding  that  the  party 
is  by  law  entitled  to  a  supersedeas,  the  Supreme  Court  will  issue  the  writ;S 
unless  by  rule  upon   the  lower  court   the  required  result   is   otherwise  se- 


iiUnited  States  v.  Williams,  67 
Fed.  384.  14  C.  C.  A.  440;  In  re 
Paquet,  114  Fed.  440,  52  C.  C.  A. 
2.39. 

i2ln  re  Paquet.  114  Fed.  440,  52 
('.  C.  A.  23'9. 

isUnited  States  v.  Williams.  67 
Fed.  384,  14  C.  C.  A.  440. 

i4Ex  parte  Citv  Bank.  3  How.  .372. 
11  L.  ed.  60,3. 

i5Ex  parte  Gordon.  1  Black.  .505. 
17  L.  ed.   134. 

16  Ex  parte  Crab  am.  10  Wall.  .543. 
19-  L.  ed.  982:  Ex  parte  Waples.  154 
U.  S.  579.  38  L.  ed.  1088,  14  Sup.  Ct. 
Rep.  1214. 

i^In  re  Bininger.  7  Blatclif.  161, 
Fed.  Cas.  No.  1.417. 

isUnited  States  v.  Berrv,  4  Fed. 
779,  2  McCrary.  58. 

19 In  re  Hugulev.  etc.  Co.  184,  U. 
S.  2i97.  46  L.  ed.  549.  22  Sup.  Ct.  Rep. 
455.  The  opinion  docs  not  refer  to 
the  distinction  between  its  use  in  ad- 


miralty cases  under  R.  S.  §  688  and 
in  other  cases  under  R.  S.  §  716. 

2  0Ex  parte  -loins.  191  U.  S.  102,  48 
L.  ed.  110.  24  Sup.  Ct.  Rsp.  27. 

iSee  Smith  v.  Whitney.  110  I'.  S. 
175.  6  Sup.  Ct.  Rep.  574,  29  L.  ed. 
601:  United  States  v.  ?ilaiiev.  61  Fed. 
140. 

"•Hardeuian  v.  Anderson,  4  How. 
642.  11  L.  ed.  1139;  In  re  Claa.sen.  140 
U.  S.  208.  35  ]>.  ed.  409.  11  Sup.  Ct. 
Rep.  735:  Goddard  v.  Ordway,  94  U. 
S.  672,  24  L.  ed.  237. 

•^See  post,  §  2012  et  seq. 

eSlauglit^T  House  Cases.  10  Wall. 
273.  19  L.  ed.  920. 

"Stockton  v.  Bishoj).  2  How.  75.  1  I 
L.  0(1.  185:  Ex  parte  ^Milwaukee,  etc. 
R.  R.  5  Wall.  188.  IS  L.  ed.  676: 
French  v.  Shoemaker.  12  Wall.  8().  20 
L.  ed.   270. 

sStockton  V.  Bishop.  2  How.  7-'). 
11  L.  ed.  185:  Hardeman  v.  Anderson. 
4  How.  640.  11  L.  ed.  1138:  Ex  parte 


777 


§   841    [i] 


WRITS  AND  PROCESS. 


[Code  Fed. 


cured.9  It  was  issued  to  stay  proceedings  in  a  State  court  after  writ  of 
error.io  The  fact  that  an  inferior  court  is  misconstruing  the  scope  of 
an  injunction  decree  does  not  enable  the  Supreme  Court  to  issue  super- 
sedeas not  otherwise  in  aid  of  its  appellate  powers. n  Where  the  party 
is  in  fact  not  entitled  to  supersedeas  applications  in  the  Supreme  Court 
therefor,  have  been  denied.12  A  Supreme  Court  justice  has  no  discretionary 
power  to  issue  the  writ  unless  the  party  has  brought  himself  strictly  with- 
in the  statutes  as  to  stay.is  The  circuit  court  of  appeals  has  a  like  power 
to  issue  a  writ  of  supersedeas  when  a  decree  below  is  improperly  beiug 
executed  notwithstanding  that  the  party  is  entitled  to  a  stay. 1 4 

[i]     Quo  warranto. 

The  ancient  writ  of  quo  warranto  has  been  superseded  in  modern  practice 
by  information  in  the  nature  of  quo  warrantois  and  it  is  doubtful  whether 
the  writ  would  now  be  deemed  a  writ  agreeable  to  the  usages  of  law. 
Moreover  as  a  writ  it  is  in  its  nature  an  original  process  and  therefore 
there  would  probably  be  no  case  in  which  it  would  be  necessary  to  the 
exercise  of  an  existing  jurisdiction.  No  case  has  sought  to  derive  au- 
thority for  the  use  of  qvio  warranto  from  R.  S.  §  71G;  and  it  would 
seem  clear  that  the  Federal  courts  can  issue  the  writ  only  where  specific 
authority  is  conferred  by  other  enactments  than  the  one  here  under  con- 
sideration. But  the  power  of  the  Supreme  Court  of  the  District  of  Co- 
lumbia is  undoubtedly  larger.20  Quo  warranto  in  a  State  court  is  remov- 
able to  the  Federal  Court  where  arising  under  the  Federal  Constitution  or 
laws;i  but  probably  not  because  of  diverse  citizenship  between  defendant 
and  the  relator  in  cases  where  the  State  is  regarded  as  the  real  party  in 
interest,  since  a  State  is  not  a  citizen  within  the  removal  laws.2  Where  the 
proceeding  is  such  that  relator  seeks  to  oust  defendant  from  an  office  and 
secure  it  himself,  the  State  might  be  deemed  a  merely  nominal  party3 
and  the  proceeding  be  removable  for  diverse  citizenship.*  Want  of  power 
in  the  circuit  court  to  entertain  the  writ  to  try  title  to  the  office  of  Fed- 


Milwaukee,  etc.  R.  R.  5  Wall.  188, 
18  L.  ed.  676;  Railroad  Cos.  v.  Brad- 
ley, 7  Wall.  575.  1ft  L.  ed.  274. 

"sGoddard  v.  Ordway,  94  U.  S.  672, 
24  L.  ed.  237. 

loGreen  v.  Van  Buskirk,  3  Wall. 
448.  18  L.  ed.  245. 

11  French  v.  Shoemaker,  12  Wall. 
86.  20  L.  ed.  270. 

i2Hognn  v.  Ross,  11  How.  294.  13 
L.  ed.  702 :  Adams  v.  Low,  16  How. 
144,  14  L.  ed.  880;  Slaughter  House 
Cases,  10  Wall.  273,  \9  L.  ed.  918. 

isKitchen  v.  Randolph,  93  U.  S. 
SG,  23  L.  ed.  810. 

i4Gunn  V.  Black,  60  Fed.  160.  8 
C.  C.  A.  542;  In  re  ^IcKenzie,  180 
V.  S.  536,  45  L.  ed.  657,  21  Sup.  Ct. 
Rep.  468. 


isNebraska  v.  Loekwood,  3  Wall. 
23G,  IS  L.  ed.  47. 

20Sep  X'nited  State's  v.  Addison,  6 
Wall.  298.  18  L.  ed.  910, 

lAmes  V.  Kansas.  Ill  U.  S.  449, 
28  L.  ed.  482.  4  Sup.  Ct.  Rep.  447: 
Illinois  V.  Illinois  C.  R.  R.  33  Fed. 
721. 

2]Mi5souri.  etc.  Rv.  v.  Missouri,  etc. 
Comrs.  183  V.  S.  .58,  46  L.  ed,  78.  22 
Sup,  Ct,  Rep.  18. 

3Bovd  V.  Xebraska,  143  U.  S.  157, 
36  L.  ed.  103,  12  Sup.  Ct.  Rep.  375. 

4ln  Place  v.  Illinois.  69  Fed.  481, 
16  C.  C.  A.  .300,  defendant  was  citi- 
zen of  a  Territory  and  therefore  di- 
verse citizenship  did  not  exist. 


Procedure]      POWER  OF  FEDERAL  COURTS  TO  ISSUE   WRITS.       §   841    [ml 

eral  district  attorney  seems  to  have  led  in  one  instance  to  a  proceeding 
before  such  court  by  simple  motion  to  obtain  possession  of  the  books  and 
papers  of  the  office  in  which  the  right  of  applicant  to  the  office  was  virtually 
determined. 5 

[j]     Writ  of  entry  and  writ  of  right. 

These  writs  have  never  been  decided  to  be  within  the  contemplation 
of  R.  S.  §  716.  If  they  are  writs  at  all  in  the  sense  of  R.  S.  §  716  they 
are  original  writs;  but  are  more  properly  forms  of  action  for  the  re- 
covery of  realty,  and  available  as  such  in  the  Federal  courts  under  the 
terms  of  the  conformity  clause, 7  when  they  are  in  use  in  the  courts  of 
the  State  where  the  Federal  court  is  sitting. 

[k]     Writs  of  assistance. 

^Yrits  of  assistance  in  equity,  and  of  habere  facias  possessionem  at  law, 
are  undoubtedly  authorized  by  R.  S.  §  716.  They  are  used  for  the  pur- 
pose of  putting  a  purchaser  at  judicial  sale  or  plaintiff  in  ejectment  into 
possession.! 0  The  seventh  and  ninth  equity  rules  provide  for  issuance  of 
the  writ  of  assistance,  n  It  should  not  issue  except  against  parties  or 
privies  or  persons  coming  into  possession  pendente  lite.i2 

{1]     Writs  of  subpoena  and  venire  facias. 

Power  to  issue  the  writ  of  subpoena  is  derivable  from  R.  S.  §  716.15 
Subpoena  for  the  summoning  of  witnessesis  and  the  production  of  papers 
and  documentsi'?  in  Federal  courts  is  provided  for  in  other  enactments. 
The  writ  of  venire  facias  to  summon  a  grand  jury  has  been  held  deriv- 
able from  R.  S.  §  716.1  s 

[m]     Necessary  to  jurisdiction  and  agreeable  to  law. 

No  enlargement  of  the  Federal  courts'  jurisdiction  was  intended  by  this 
■clause.  The  issuance  of  other  writs  is  only  authorized  in  cases  where  the 
jurisdiction  already  exists  and  not  where  it  is  to  be  acquired  by  means 
of  the  writ  to  be  issued.i  As  already  shown  this  debars  the  inferior  Fed- 
■eral  courts  of  power  to  issue  mandamus  certiorari,  quo  warranto  and  other 
writs  except  in  aid  of  their  judgments  and  decrees. 2     Nor  have  they  power 

sTli*  Supreme  Court  refused  man-  i5ln  re  Shephard,    3    Fed.    12,    18 

damns  to  correct  the  proceeding:     In  Blatchf.  22.5. 

re  Parsons.  150  U.  S.  150,  37  L.  ed.  leSeepost,  §  1742. 

1035.  14  Sup.  Ct.  Rep.  50.  i^See  post.^§§   176.3,  1768. 

7  See  post,  §  900.  is  United   States  v.   Antz,   16   Fed. 

loTerrell  v.  Allison,  21   Wall.  289,  122,  4  Woods,  174. 

22   L.    ed.    6.34:     Gormlev   v.    Clnrk,  iMcClung    v.     Silliman,   6  Wheat. 

134  U.  S.  .350.  .33  L.  ed.  909,  10  Sup.  601.  5  L.  ed.  341;  Mclntire  v.  Wood, 

('^    TipD.  5.54:  Lncassasme  v.  Chapuis,  7  C'ranch.  506,  3  L.  ed.  421;  Kendall 

144  U.  S.  125,  30  L.  ed.  371,  12  Sup.  v.  United  States.  12  Pet.  624.  9  L.  ed. 

Ct,  Rep.  002.  1221  ;     United     States     v.    Plumer,   3 

iiSee  post.  §  1097.  Cliff.  28.   Fed.   Cas.   No.   16.056. 

i2Terrell  v.  Allison,  21    Wall.  289,  2Supra.  under  this  section. 
22  L.   ed.   634;    Comer  v.   Felton,   61 
Fed.  735,  10  C.  C.  A.  28. 

779 


§   842  AVltlTS  AND  rKOCKSS.  [Code   Fed^ 

by  this  section  to  issiie  writ  of  error  coram  nobis  to  review  error  in  their 
own  judgments  and  proceedings  in  criminal  cases  and  thus  enlarge  their 
criminal  jurisdiction. 3 

§  842.     Power  of  circuit  court  of  appeals  to  issue  writs. 

The  circuit  court  of  appeals  shall  have  the  power  specified  in  sec- 
tion seven  hundred  and  sixteen  of  the  revised  statutes"'  of  tlie 
United  States, 

Act   §   12  of  act  Mar.  3,  1891,  c.  517,  26  Stat.  829,  U.  S.  Comp.  Stat. 
1901,  p.  553. 

Discussion  of  the  power  of  circuit  courts  of  appeals  is  considered  in  the 
annotation  of  the  preceding  seetion.6 

§  843.     Federal  courts'  power  to  issue  writs  of  ne  exeat. 

Writs  of  ne  exeat  may  be  granted  by  any  justice  of  the  Supreme 
Court  in  cases  where  they  might  be  granted  by  the  Supreme  Court ;. 
and  bj'  any  circuit  justice  or  circuit  judge  in  cases  where  they  might 
be  granted  by  the  circuit  court  of  which  he  is  a  judge.  But  no  writ 
of  ne  exeat  shall  be  granted  unless  a  suit  in  equity  is  commenced, 
and  satisfactory  proof  is  made  to  the  court  or  judge  granting  the 
same  that  the  defendant  designs  quickly  to  depart  from  the  United 
States. 

R.  S.  §  717,  U.   S.  Comp.  Stat.   1901.  p.  580. 

Tliis  provision  is  carried  forward  into  the  Revised  Statutes  from  acts, 
of  1793  and  1869.9  Xe  exeat  is  a  writ  directed  to  the  sheriff  or  marshal 
commanding  him  to  cause  one  who  owing  money  is  about  to  depart  tiie- 
realni,  to  appear  before  him  and  give  sufficient  bail  or  security  in  the  sum 
endorsed  on  the  writ  that  he  will  not  depart  without  leave  of  court,  and 
on  the  party's  refusal  to  give  such  security,  to  commit  him  to  prison.' o 
K(iuity  rule  21  provides  that  it  must  be  asked  in  the  prayer  for  relief  if  it 
is  to  be  obtained  "pending  the  suit."ii  But  after  final  decree  it  may  he- 
awarded  under  a  prayer  for  general  relief. 12  In  view  of  R.  S.  §  090  for- 
bidding imprisonment  for  debt  in  Federal  courts  except  as  allowed  by  the 
local  lawi3  it  would  seem  that  R.  S.  §  717  should  be  construed  as  allowing 
ne  exeat  in  Federal  courts  only  in  States  where  the  State  laws  permit 
imprisonment   for   debt.i*        In   any   event   there   are   few   instances  of  its 

sUnited   States  v.  Plumer.  3  Cliff.  S.  290.  35  L.  ed.  678.  11  Sup.  Ct.  Rep. 

28.  Fed.  Cas.  No.  16.0.")6.  999. 

5 Ante.  §  841.  uSee  post.  ?  945. 

eSee  especially  §  841  [eej.  [ff],  [g].         i2Lewis  v.  Shainwald.  48  Fed.  .500, 

9 Act  March   2,  ^793.  c.  22.   §   5.   1  7  Sravv.  403. 
Stat.  334:   act  Auril   10.   1869.  c.   22,         isSee  post.  §  1.558. 
§  2.  16  Stat.  44.    '  i^See  Mallory  Mfg  Co.  v.  Fo.x,  20 

lOSee  L^riswold  v.  Hazard,   141  U.  Fed.  409. 

780 


•Procedure]   SUPREME   COURT'S  POWER  TO  ISSUE  MANDAMUS.  §   844 

iss\iance  out  of  the  Federal  courts  among  the  reported  cases.  Where  per- 
missible under  the  State  practice  it  will  issue  if  the  party  is  about  to 
leave  the  8tate,i5  but  the  Federal  court  can  issue  it  only  if  the  party  in- 
tends to  leave  the  United  States. 1 6  It  must  be  a  definite  pecuniary 
claimi'  and  complainant  must  swear  positively  to  it. is  By  specifically 
authorizing  a  Sttpreme  or  circuit  court  judge  to  issue  the  writ  where 
issuable  by  their  respective  courts,  U.  S.  §  717  inferentially  denies  this 
power  to  district  jtidgesjis  but  a  district  court  has  been  held  authorized 
to  issue  the  writ  when  is  possesses  equity  powers. 20  it  has  also  been  held 
that  it  should  not  be  granted  in  an  action  to  revive  a  judgment  where 
not  granted  or  prayed  in  the  original  jtidgment;i  and  the  propriety  of  its 
allowance  cannot  be  raised  on  demurrer  to  a  bill  to  revive. 2  In  a  recent 
case  the  coin-t  exercised  its  equitable  discretion  in  refusing  the  writ  to 
hold  in  custody  a  debtor  who  Mas  in  Maine  on  a  pleasure  trip  and  resided 
permanently  in  ^lontreal  where  complainant  might  stie  him  quite  as 
conveniently. 3  Senators  and  Representatives  upon  official  duty  are  privi- 
leged from  arrest;*  and  diplomatic  agents  of  foreign  countries  and  their 
registered  servants  are   privileged   from  process  against  goods   or  person.'' 

§  844.     Supreme  Court's  power  to  issue  mandamus  and  prohibi- 
tion. 

The  Supreme  Court  shall  have  power  to  issite  writs  of  pro- 
hibition to  the  district  courts  when  proceeding  as  courts  of  admir- 
alty and  maritime  jurisdiction  ;f''^"'^'^^  ^^^  and  writs  of  mandamus 
in  cases  warranted  by  the  principles  and  usages  of  law,  to  any 
•courts  appointed  under  the  authority  of  the  United  StatesJ®^"^^!  or 
to  persons  holding  office  under  the  authority  of  the  United  States, 
uhere  a  State,  or  an  embassador,  or  other  public  minister,  or  a 
■consul  or  vice  consul,  is  a  party. ^'^^ 

R.  S.  §  G88,  U.  S.  Comp.  Stat.  1001,  p.  5G5. 

isSee  Griswold  v.  Hazard.   141    U.  isGenion  v.  Boecaline,  2  Wash.  C. 

S.  2G0.  :{5  L.  ed.  678.  11  Sup.  Ct.  Rep.  C.  130.  Fed.  Cas.  No.  5,367. 

■973.  isCernon  v.  Boecaline.  2  Wash.  C. 

icLowenstein    v.    Biernbauin,    Fed.  C.  130.  Fed.  Cas.  No.  5,3<57.     See  Loe- 

Cas.  No.  S.461a.     See  Union  Mut.  Ins.  wenstein  v.  Biernbaum,  Fed.  Oas.  No. 

To.  V.  Kellogg.  Fed.  Oas.  No.   14.373.  8,461a. 

The  courts  in  the  District  of  C'oluni-  2oSee  Lewis  v.  Shainwald.  7  Sawy. 

l)id  are  controlled  by  the  provisions  of  403.  48  Fed.  500. 

law:     Patterson     v.     McLaughlin.     1  1  Shainwald  v.   Lewis.  46  Fed.   8.3H. 

Cranch  C.  C.  352,  Fed.  Cas.  No.   10,-  See  Shainwald  v.  Lewis,  m  Fed.  487. 

828;   Patter.son  v.  Bowie.  1  ('ranch  C.  2Shainwald  v.  Lewis,  69  Fed.  487. 

('.  4-25.  Fed.  Cas.  No.  10.82.").  sHarrison  v.  Orahaiu.  110  Fed.  81Mi. 

No.   10.825.  4See  U.  S.  Const.  Art.    1,  §  6  cl.  1. 

I'^Crahaii:    v.    Stucken,    4    Blatclif.  -''See  post  §  861. 
■50,  Fed.  Cas.  No.  5,677. 

781 


S   844    [a] 


WRITS  AND  PROCESS. 


[Code  Fed. 


[a]  History  of  section  and  cross  references. 

This  provision  is  from  §  13  of  the  original  judiciary  act.8  As  originally 
enacted  the  statute  authorized  the  Supreme  Court  "to  issue  writs  of  man- 
damus in  cases  warranted  by  the  jjrinciples  and  usages  of  law,  to  any 
courts  appointed,  or  persons  holding  ofhce,  under  the  authority  of  the 
United  States."  This  was  declared  unconstitutional  by  a  case  which  has 
become  a  landmark  in  the  history  of  constitutional  law, 9  in  so  far  as 
authorizing  mandamus  against  governmental  officers  in  any  otlier  class 
of  cases  than  those  in  which  the  Constitution  expressly  grants  the  Supreme 
Court  original  jurisdiction.! "  Hence  the  addition  of  the  qualifying  words 
"where  a  State,  or  an  embassador"  etc.  The  general  power  of  Federal 
courts    to    issue    mandamus    and    prohibition    is    elsewhere    considered.il 

[b]  Prohibition  by  Supreme  Court  in  admiralty. 

The  writ  of  prohibition  authorized  by  this  section,  is  tiie  common  law 
writ.i2  It  is  as  well  settled  by  the  decisions  of  the  Supreme  Court, 
as  it  was  at  common  law,  that  it  will  not  issue  to  correct  errors  or  irreg- 
ularities or  control  a  court's  judgment; 1 3  nor  after  an  act  is  completed 
or  the  proceedings  below  have  run  their  course,  in  an  effort  to  undo  what 
has  been  done;i4  but  only  to  prevent  an  unlawful  or  unauthorized  assump- 
tion of  jurisdiction.! 5  But  there  has  oeen  some  question  whether  the 
jurisdictional  defect  must  appear  from  the  face  of  the  record;  and  whether 
the  issuance  of  the  writ  is  discretionary.  In  this  connection  it  must  be 
noted  that  "record"  may  be  used  in  two  senses;  i.  e.  as  meaning  the  final 
record  below,  or  the  record  on  appeal.  By  R.  S.  §  75016  the  final  record 
below  includes  process,  pleadings,  decree  etc.,  but  not  the  proofs.  By 
R.  S.  §  6981''  the  record  on  appeal  includes  also  the  proofs.  While  the 
cases  have  sometimes  asserted  generally  that  prohibition  will  only  issue 
for  want  of  jurisdiction  apparent  on  the  record, is  it  would  seem  that  when 
sought  prior  to  judgment  or  sentence  in  the  district  court,  "record"  includes 


sAct  Sept.  24,  17'89,  c.  20,  §  13, 
1  Stat.  80. 

sMarbury  v.  Maaison,  1  Cranch. 
137,  2  L.  ed.  60. 

10 Ante.  §  35. 

11  Ante,  §  841[f]-[g]. 

i2ln  re  Cooper,  143  U.  S.  472.  36  L. 
ed.  232.  12  Sup.  Ct.  Rep.  453.  See 
Smith  V.  Whitney,  116  U.  S.  174,  29 
L.  ed.  601,  6  Sup.  Ct.  Rep.  570. 

i3Ex  parte  Ferry  Co.  104  U.  S.  520, 
26  L.  ed.  815;  Ex  part*  Slayton,  105 
U.  S.  453,  26  L.  ed.  1066;  In  re  Coop- 
er, 143  U.  S.  72,  36  L.  ed.  232,  12  Sup. 
Ct.  Rep.  453;  Ex  parte  Pennsylvania, 
109  U.  S.  176,  27  L.  ed.  894,  3  Sup. 
Ct.  Rep.  84;  In  re  New  York,  etc.  S. 
S.  Co.  155  U.  S.  531,  39  L.  ed.  246, 
15  Sup.  Ct.  Rep.  183. 

i^United     States    v.     Hoffman,     4 


Wall.  162,  18  L.  ed.  354;  Ex  parte 
ii^aston,  9o  U.  S.  72,  24  L.  ed.  373. 

isUnited  States  v.  Peters.  3  Dall. 
129,  1  L.  ed.  535;  Ex  parte  Gordon, 
104  U.  S.  516,  26  L.  ed.  814;  In  re 
Morrison.  147  U.  S.  36.  37  L.  ed.  60, 
13  Sup.  Ct.  Rep.  246;  In  re  Fassett, 
142  U.  S.  486,  35  L.  ed.  1087,  12  Sup. 
Ct.  Rep.  295.  If  the  court  has  juris- 
diction of  the  parties  and  the  res 
prohibition  will  not  issue.  Indiana 
V.  Glovf-r,  155  U.  S.  513,  39  L.  ed. 
243,  15  Sup.  Ct.  Rep.  186. 

lePost  §  rO'oS  and  see  also  post,  § 
1100. 

iTPost.  §  1959. 

isEx  parte  Easton,  95  U.  S.  77, 
24  L.  ed.  373 ;  Ex  parte  Phenix  Ins. 
Co.  118  U.  S.  625,  30  L.  ed.  274,  7 
Sup.  Ct.  Rep.  25. 


782 


Piocedure]    SUPREME    COURT'S   POWER   TO   ISSUE    MANDAMUS      §   844    [d] 

the  evidence  or  proof  and  permits  an  examination  thereof  where  necessary 
to  decide  the  jurisdictional  fact;  but  that  after  sentence  or  judgment  only 
the  final  record  below  will  be  examined  and  not  the  proofs. 1 9  The  ques- 
tion of  discretion  in  the  granting  of  the  writ  has  also  given  some  difficulty, 
although  the  court  has  now  declared  comprehensively  that  "where  it  ap- 
pears that  the  court  whose  action  is  sought  to  be  prohibited  has  clearly 
no  jurisdiction  of  the  cause  originally,  or  of  some  collateral  matter  arising 
therein,  a  party  who  has  objected  to  the  jurisdiction  at  the  outset  and  has 
no  other  remedy 20  is  entitled  to  a  writ  of  prohibition  as  a  matter  of 
right.  But  where  there  is  another  legal  remedy  by  appeal  or  otherwise, 
or  where  the  question  of  the  jurisdiction  of  the  court  is  doubtful  or  depends 
on  facts  which  are  not  made  matter  of  record,  or  where  the  application 
is  made  by  a  stranger,  the  granting  or  refusal  of  the  writ  is  discretionary. 
Xor  is  the  granting  of  the  writ  obligatory  where  the  case  has  gone  to 
sentence  and  the  want  of  jurisdiction  does  not  appear  upon  the  face  of  the 
proceeding."!  Confiscation  proceedings  under  act  of  1862  are  not  admiralty 
proceedings  within  this  section,  although  the  practice  therein  is  conformed 
to  admiralty  practice.2 

[c]  Prohibition  by  Supreme  Court  in  other  cases. 

It  has  been  said  that  the  Supreme  Court  cannot  issue  prohibition  except 
in  admiralty, 5  and  undoubtedly  it  has  not  such  power  under  R.  S.  §  688. 
But  by  R.  S.  §  716  it  may  issue  the  writ  when  necessary  to  the  exercise 
of  its  jurisdiction  and  agreeable  to  the  principles  of  law.6  There  are  no 
cases  in  which  it  has  issued  other  than  admiralty,  although  instances  in 
which  it  has  been  applied  for. 7 

[d]  When  Congress  may  authorize  mandamus  by  Supreme  Court. 

The  Constitution  does  not  specifically  grant  to  the  Supreme  Court  original 
jurisdiction  to  issue  any  of  the  prerogative  writs. 9  As  Congress  is  without 
power  to  enlarge  the  Supreme  Court's  original  jurisdiction,!  0  it  follows  that 
its  power  to  issue  mandamus  and  the  other  writs  as  an  exercise  of  original 
jurisdiction    is    confined    to    those    cases    in    which    the    Constitution    has 

isSee  In  re  Cooper.  143  U.  S.  50.5,  L.  ed.  552.  22  Sup.  Ct.  Rep.  455.  See 
."56  L.  ed.  243.  12  Sup.  Ct.  Rep.  461;  also  Smith  v.  Whitney.  116  U.  S.  1G7, 
discussing  earlier  cases  of  Ex  parte  173.  2f1  L.  ed.  603.  6  Sup.  Ct.  Rep. 
Citv  Rank,  3  How.  292.  11  L.  ed.  610;  570:  Ex  parte  Cooper.  143  U.  S.  495, 
United  States  v.  Peters,  3  Dall.  121,  1  36  L.  ed.  230,  12  Sup.  Ct.  Rep.  453. 
L.  e<l.  5.35.  etc.  See  also  In  re  Baiz.  2Ex  parte  Graham,  10  Wall.  543, 
135  U.  S.  4.30,  34  L.  ed.  222.  10  Sup.  19  L.  ed.  9S1. 
Ct.  Rep.  854.  5See  ex  parte  City  Bank,  3  How. 

20See  In  re  New  York  S.  S.  Co.  155    322.  11  L.  ed.  603:  Ex  parte  Graham, 
r.  S.  531,  39  L.  ed.  246.  15  Sup.  Ct.    10  Wall.  542,  19  L.  ed.  981. 
Rep.  183.  6 Ante,  §  841  [g]. 

Un  re  Rice.  155  U.  S.  .396.  402,  39        TAnte,  ?  841, gj. 
L.  ed.  198.  201,  15  Sup.  Ct.  Rep.  149;         ^United  States  v.  Schurz,  102  U.  S. 
Ex  parte  Alix,  166  U.  S.  136,  41  L.    395.  26  L.  ed.  167. 
ed.  948.   17  Sup.   Ct.  Rep.  522;  In  re         io:Marl)urv   v.   IMadison.    1    Cranch, 
Huirulev,  etc.  Co.  184  U.   S.   301.  46    137.  2  L.  ed."  GO.     Ante,  §  35. 

783 


.§  S44   [e] 


WRITS  AND  PROCESS. 


[Code  Fed. 


otherwise  invested  it  with  original  jurisdiction; n  and  that  in  all  other 
cases  its  issuance  of  mandamus  must  be  in  the  nature  of  an  exercise  of 
appellate  power.  12 

[e]     Mandamus  to  inferior  Federal  courts. 

The  statute  authorizes  mandamus  to  inferior  Federal  courts,  but  not  to 
State  courts.ifi  when  "warranted  by  the  principles  and  usages  of  law,"i' 
and  as  that  use  of  the  writ  is  appellateis  in  its  nature,  it  is  not  invalid 
within  the  reasoning  of  Marbury  v.  Madison. is  The  particular  province  of 
mandamus  is  to  compel  the  performance  of  some  clear  legal  duty  where 
the  party  damaged  by  the  neglect  has  no  other  adequate  remedy. 20  The 
duty  must  be  plain  and  positive.  1  The  party  to  be  coerced  must  have  power 
to  perform  it.  It  is  never  granted  in  anticipation  of  an  omission  of  duty.'- 
When  directed  to  inferior  courts  the  principal  uses  of  mandamus  an- 
to  compel  a  court  to  take  jurisdiction  in  a  proper  case,3  or  having  taken 
it,  to  proceed  in  its  exercise,^  or  having  wrongfully  taken  jurisdiction  or 
exceeded  lawful  bounds  in  its  exercise,  to  set  aside  or  rectify  erroneous 
orders,  decrees  or  other  proceedings  made  therein. 5  As  has  been  said. 
it  issues  to  inferior  courts  to  restrain  their  excesses  as  well  as  quicken 
their  diligence.^  When  an  inferior  court  refuses  to  act  on  a  subject  properly 
before  it,  mandamus  is  the  only  adequate  mode  of  relief.'!'  ;Mandamus  lies 
where  the  circuit  court  has  improperly  remanded  a  cause  to  a  State 
court  since   the   remanding  order   is   not   appealable  ;S    but   not    when    that 


iiMcCluny  v.  Silliman,  2  Wheat. 
:>i70.  4  L.  ed".  263;  ^'irginia  v.  Rives, 
100  U.  S.  327.  25  L.  ed.  672;  Riggs 
v.  Johnson  Co.  6  Wall.  188,  18  L.  ed. 
774.     Ante.  §  35. 

12 See  United  States  v.  Boutwell,  17 
Wall.  609,  21  L.  ed.  721. 

leSee  In  re  Blake.  175  U.  S.  114, 
44  L.  ed.  94,  20  Sup.  Ct.  Rep.  42;  In 
re  Green.  141  U.  S.  326.  35  L.  ed. 
765.  12  Sup.  Ct.  Rep.  11. 

I'^See  commenting  on  this  phrase: 
Virginia  v.  Rdves,  100  U.  S.  324,  25 
L.  ed.  670:  Ex  parte  Newman,  14 
Wall.  165,  20  L.  ed.  879. 

isEx  parte  Crane.  5  Pet.  200,  8  L. 
ed.  96:  Ex  parte  Newman,  14  Wall. 
166,  20  L.  ed.  879;  Virginia  v.  Rives, 
100  U.  S.  327,  25  L.  ed.  672. 

191  Cranch,  137,  2  L.  ed.  60. 

2oBoard  of  Comr's.  v.  Aspinwall,  24 
HoAv.  383,  16  L.  ed.  735:  Bayard  v. 
White.  127  U.  S.  250,  32  L.  ed.  116, 
8  Sup.  Ct.  Rep.  1223. 

lEx  parte  Cutting,  94  U.  S.  20.  24 
L.  ed.  49:  Northern  Pac.  R.  R.  v. 
Washington,  142  U.  S.  506.  35  L.  ed. 
3092.   12  Sup.  Ct.  Rep.  283. 

2ConimissioneTs  of    Brownsville    v. 


Loagne,  129  U.  S.  501,  32  L.  ed.  780. 
9  Sup.  Ct.  Rep.  327;  Missouri  ex  rel. 
V.  Murphv,  170  U.  S.  95.  42  L.  ed. 
955,  18  Sup.  Ct.  Rep.  505;  Wyle  v. 
Coxe,  14  How.  3,  14  L.  ed.  301. 

sRailroad  Co.  v.  Wiswall,  23  Wall. 
508,  2.3  u  ed.  103;  In  re  Hohorst,  150 
U.  S.  653,  37  L.  ed.  1211,  14  Sup.  Ct. 
Rep.  221  ;  Ex  parte  SchoUenberger,  9G 
U.  S.  378,  24  L.  ed.  853. 

4Life  &  F.  Ins.  Co.  v.  Wilson,  8  Pet. 
303,  8  L.  ed.  949:  Ex  parte  Parker. 
120  U.  S.  743,  30  L.  ed.  818.  7  Sup. 
Ct.  Rep.  767 :  In  re  Atlantic  Citv  R. 
R.  164  U.  S.  (>35.  41  L.  ed.  579,  17  Sup. 
Ct.  Rep.  208 ;  In  re  Pennsvlvania  Co. 
137  U.  S.  452,  34  L.  ed.  738,  11  Sup. 
Ct.  Rep.  141. 

5See  Ex  parte  Bradley,  7  Wall.  376. 
19  L.  ed.  214. 

6Ex  parte  Crane.  5  Pet.  192,  8  L. 
ed.  92. 

TLife  &  F.  Ins.  Co.  v.  Wilson,  8 
Pet.  303.  8  L.  ed.  949. 

sinsiiranoe  Co.  v.  Comstoek,  16 
Wall.  270.  21  L.  ed.  498:  Railroad  Co. 
V.  Wiswall.  23  Wall.  308,  23  L.  ed. 
103. 


784 


I 


Procedure]    SUPREME    COURT'S  POWER  TO  ISSUE   MANDAMUS.      §   844   [t] 

court  refuses  to  remand,  there  being  a  remedy  by  appeal. 9  It  lies  to 
compel  a  court  to  try  a  casejio  to  compel  the  lower  court  to  make  up  the 
record  in  a  case,  for  appeal; n  to  compel  entry  of  judgment;  12  to  compel 
a  judge  to  sign  and  settle  a  bill  of  exceptions; is  but  not  an  improper 
onei4  or  to  resettle  one  on  affidavits  of  error.is  It  may  issue  to  compel  a 
court  to  carry  a  judgment  into  effect;  16  or  to  pass  upon  a  motion  for 
new  trial;  1"  or  to  compel  allowance  of  an  appeal,i8  though  not  if  the  ap- 
plication is  irregular.19  In  one  case  it  issued  to  compel  reinstatement 
of  a  disbarred  attorney  where  the  disbarment  was  in  excess  of  jurisdic- 
tion.20 

[f]    To  compel  compliance  with  appellate  mandate. 

Mandamus  is  sometimes  a  proper  remedy  in  a  case  that  has  gone 
back  to  the  trial  court  after  appeal,  where  the  lower  court  fails  to  give 
oroper  effect  to  the  mandate ;<  or  disobeys  it; 5  or  improvidently  permits 
a  ue^  trial; 6  and  the  delay  incident  to  a  second  appeal  makes  that 
remedy  inadequate.'?  The  writ  may  issue  irrespective  of  the  amoimt  in 
dispute.8  But  if  the  mandate  on  the  appeal  confers  a  discretion  man- 
damus will  not  issue  to  control  it.9     It  is  not  a  proper  mode  of  enforcing 


9Ex  parte  Hoard,  105  U.  S.  579,  26 
L.  ed.  1176.  See  however,  Ex  parte 
Virginia,  100  U.  S.  339,  25  L.  ed.  671. 
Awarding  mand&mus  where  a  crimi- 
nal prosecution  had  been  improvd- 
dently  removed. 

loEx  parte  Schollenberger,  96  U.  S. 
378.  24  L.  ed.  853. 

11  Ex  parte  Bradstreet,  7  Pet.  634, 
8  L.  ed.  SilO. 

i2Life  &  F.  Ins.  Co.  v.  Wilson,  8 
Pet.  291.  8  L.  ed.  949. 

isEx  parte  Crane,  5  Pet.  190,  8  L. 
ed.  92.  In  re  Chateaugav,  etc.  Co. 
128  U.  S.  544,  32  L.  ed.  508'.  9  Sup.  a. 
Rep.  150. 

i^Bradstreet  v.  Thomas.  4  Pet.  102, 
7  L.  ed.  796. 

I5ln  re  Streep,  156  V.  S.  207.  .39  L. 
ed.  399,  15  Sup.  Ct.  Rep.  358. 

isSbafford  v.  Union  Bank.  16  How. 
135,  14  L.  ed.  876;  Stafford  v.  New 
Orleans,  etc.  Co.  17  How.  283.  15  L. 
ed.   102. 

i7Ex  parte  Roberts.  15  Wall.  387, 
21  L.  ed.  131  ;  Ex  parte  United  States. 
16  Wall.  70.3,  21  L.  ed.  507. 

isUnited  States  v.  Comez.  3  Wall. 
766.  18  L.  ed.  212;  Ex  parte  Russell, 
n  Wall.  670.  20  L.  ed.  632:  Ex  parte 
Cutting.  94  U.  S.  21,  24  L.  ed.  49;  In 
re  Farmers  Loan.  otc.  Co.  129  U.  S. 


216,  32  L.  ed.  656,  9  Sup.  Ct.  Rep. 
265. 

i9Mussina  v.  Cavazos,  20  How.  280, 
15  L.  ed.  878. 

2  0Ex  parte  Bradley,  7  Wall.  376, 
19'  L.  ed.  214. 

4  Ex  parte  Union  S.  Co.  178  U.  S. 
319,  44  L.  ed.  1085.  20  Sup.  Ct.  Rep. 
904;  In  re  Sanford.  etc.  Co.  160  U. 
S.  255,  40  L.  ed.  414.  16  Sup.  Ct. 
Rep.  201 ;  Gaines  v.  Rugg,  148  U.  S. 
243,  37  L.  ed.  4.32,  13  Sup.  Ct.  Rep. 
611:  In  re  Blake,  175  U.  S.  117.  44 
L.  ed.  94.  20  Sup.  Ct.  Rep.  42. 

5Ex  parte  Sibbald,  12  Pet.  493,  9  L. 
ed.  1167:  Stafford  v.  Union  Bank,  17 
How.  280,  15  L.  ed.  101 :  In  re  Citv 
Xat.  Bank,  153  U.  S.  251.  38  L.  ed. 
705.  14  Sup.  Ct.  Rep.  804:  United 
States  v.  Fossatt.  21  How.  446.  16  L. 
fd.  186. 

6  In  re  Potts.  166  U.  S.  26S.  41  L. 
ed.  994.  17  Sup.  Ct.  Rep.  520;  Ex 
parte  Dubuque,  etc.  R.  R.  1  Wall.  69. 
17  L.  ed.  514. 

TGaines  v.  Ru<rg,  148  U.  S.  243.  37 
L.  ed.  432,   13  Sup.  Ct.  Rep.  611. 

sCitv  Bank  v.  Hunter,  152  I'.  S. 
515.  38  L.  ed.  534.  14  Sup.  Ct.  Ke|>. 
675. 

9Ex  j)arto  Raihvav  Co.  101  U.  S. 
711,  25  L.  ed.  872. 


Fed.  Proc.^.50. 


785 


§   844   [g]  WRITS  AND  PROCESS.  [Code  Fed. 

compliance  of  a  State  court  with  mandate  on  writ  of  error,  but  in  such 
cases  a  second  writ  of  error  is  proper. lo 

[gj  —  absence  of  other  adequate  remedy. 

It  is  a  fundamental  requirement  in  all  cases  that  there  be  no  other 
adequate  remedy.  12  If  an  inferior  court  refuses  to  proceed  according  to 
equity  practice,i3  or  improperly  allows  an  appeal,i4  or  dismisses  plaintiffs 
petition  for  want  of  jurisdiction,! 5  or  refuses  to  disirissie  or  dismissed  on 
appeal,!  ■?  or  decides  erroneously,!  8  there  is  ordinarily  adequate  remedy  in 
the  ordinary  course  of  appellate  proceedings  and  mandamus  will  not  lie. 
The  fact  that  the  term  of  an  office  in  dispute  would  expire  before  appeal 
could  be  heard  has  been  held  immaterial.!  9  But  the  right  to  a  second  ap- 
peal is  not  always  deemed  an  adequate  remedy  for  failure  to  follow  the 
Supreme  Court's  mandate,  and  mandamus  will  sometimes  issue  to  avoid  the 
delay. 20  Mandamus  cannot  be  used  to  perform  the  office  of  a  writ  of 
error.4  It  cannot  be  used  to  review  interlocutory  orders  and  decrees  in  a 
cause  depending  below,  and  thus  enable  parties  prematurely  to  invoke  the 
supervisory  power  of  the  appellate  court.s  Some  cases  assert  that  it 
cannot  be  made  to  perform  the  office  of  a  writ  of  error,  "even  though  no 
right  of  appeal  or  error  is  given  by  law."6  Yet  this  does  not  mean  that 
absence  of  right  of  appeal  may  not  often  be  a  material  factor  in  justi- 
fying resort  to  the  writ  where  a  proper  case  is  otherwise  made  out.7 
The  statement  would  seem  to  mean  that  the  court  will  not  be  drawn  into 
the   investigation   of   the   record   in   a   cause   for   the   purpose   of   making 

!Oln  re    Blake.  175  U.  S.  114,  44  L.  !9rnited     States    v.    Addison,    22 

ed.  94,  20  Sup.  Ct.  Rep.  42.  How.   183,   16  L.  ed.  .S04. 

i2United    States    v.    Addison,    22  2  0in  re  Potts,  IGG  U.  S.  268.  41  L. 

How.   174.   16  L.  ed.   304;    Ex   parte  ed  994,  17  Sup.  Ct.  Rep.  520;  Gaines 

Newman,  14  Wall.  152,  20  L.  ed.  877;  v.  Rugg,  148  U.  S.  243,  37  L.  ed.  432, 

Ex  parte  Cutting,  94  U.  S.  20,  24  L.  13    Sup.   Ct.    Rep.   fill.     But   see   Ex 

ed.  49.  parte  Sawyer,  21  Wall.  240,  22  L,  ed. 

!3Ex  parte  Whitney,  13  Pet.  408,  617. 

10  L.  ed.  221.                '  ^Ex   parte   Schwab,   98  U.   S.   241,, 

!4Ex  parte  Russell,   13  Wall.  670,  25  L.  ed.   105;   Ex   parte  Hoard,   105 

20  L.   ed.  632.  U.  S.  580,  26  L.  ed.  117fi;  In  re  Penn- 

!5Ex  parte  Newman,  14  Wall.  169,  sylvania  Co.  137  U.  S.  453,  34  L.  ed. 
20  L.  ed.  877;  Ex  parte  Railway  Co.  738.  11  Sup.  Ct.  Rep.  141;  In  re- 
103  U.  S.  796.  26  L.  ed.  461.  But  if  Blake,  175  U.  S.  117,  44  L.  ed.  94, 
there  is  no  right  of  appeal  mandamus  20  Sup.  Ct.  Rep.  42;  In  re  Cross- 
should  be  allowed:  In  re  Holiorst,  niaver.  177  U.  S.  49,  44  L.  ed.  666,  20' 
150  U.  S.  654,  37  L.  ed  1211,  14  Sup.  Sup.  Ct.  Rep.  535. 
Ct.  Rep.  221.  sBank  of  Columbia  v.  Sweeney,  1 

!6ln  re  Hugulev  Mfg.  Co.   184  U.  Pet.  509',  7  L.  ed.  266;  Amer.  Con.  Co. 

S.  301,  46  L.  ed.  549,  22  Sup.  Ct.  Rep.  v.    Jacksonville,   etc.    Rv.    148   U.    S. 

455.     See    Ex    parte    Hoard,    105    U.  378,  37  L.  ed.  489,  13  Sup.  Ct.  Rep. 

S.  579,  26  L.  ed.   1176.  758. 

17 Ex  parte  Brown.   116  U.   S.  402.  6 In   re  Rice,   155   U.  S.  40.3,   39  L. 

29  L.  ed.  676.  6  Sup.  Ct.  Rep.  387:  In  ed.  198.  15  Sup.  Ct.  Rep.  149;  Amer. 

re  Atlantic   Citv  Rv.   164  U.   S.   633,  Con.  Co.  v.  Jacksonville,  etc.  Ry.  148 

41   L.  ed.  579.  17  Sup.  Ct.  Rep.  208.  U.  S.  379,  37  L.  ed.  489,  13  Sup.  Ct. 

!SEx  parte  De  Groot,  6  Wall.  497,  Rep.  7&8. 

IS  L.  ed.  887.  ^See    Ex    parte    Bradley,    7    Wall. 

786 


Procedure]   SUPREME  COURT'S  POWER  TO     ISSUE  MANDAMUS.     §   S44    [i] 

out  or  ascertaining  the  existence  of  a  proper  case  for  the  writ.  That 
would  be  to  compel  the  court  to  exercise  the  ordinary  revisory  powers 
of  a  court  of  review,  in  a  case  not  reviewable.  Error  in  proceedings  or  an 
erroneous  judgment  are  to  be  remedied  by  appeal  and  not  by  mandamus.s 

[i]     — not  allowable  to  control  discretion. 

While  nrandamus  issues  to  compel  a  court  to  act,  it  will  not  be  granted 
to  control  any  legal  discretion  possessed  by  the  lower  court  regarding  the 
way  in  which  it  shall  act.n  A  superior  court  cannot  direct  in  what  man- 
ner an  inferior  court  shall  exercise  its  discretion. 12  Mandamus  lies  to 
order  a  court  to  proceed  to  judgment,  but  not  to  direct  it  to  enter  a  par- 
ticular judgment  when  that  would  trespass  upon  the  judicial  discretion 
or  function  of  the  court.is  It  lies  to  compel  court  to  pass  on  motion 
for  new  trial; i*  but  not  to  control  the  discretion  of  a  lower  court  in 
passing  on  motion  for  new  trial.is  if  the  dismissal  of  a  libel  is  in 
the  exercise  of  discretion,  it  is  not  controllable  by  mandamus. 1 6  Mandamus 
will  not  lie  to  compel  a  lower  court  to  hear  further  argument, i"  or  to 
set  aside  default; is  or  vacate  an  order  setting  aside  a  nonsuit ;i9  or 
stay  execution  of  interlocutory  injunction  pending  appeal; 20  or  to  ac- 
cept or  refuse  an  appeal  bond  offered ;i  or  to  fix  the  amount  of  bail; 2 
or  vacate  an  injunction; 3  or  issue  warrant  for  a  deserter  where  the  judge 
deems  the  evidence  insufficient. 4  All  these  involve  an  exercise  of  judicial 
discretion. 

376,  19'  L.  ed.  214 ;  In  re  Washington  parte   Flippin,   94  U.  S.   350.    24    L. 

R.  R.  140  U.  S.  95,  35  L.  ed.  339,  11  ed.    194;    Ex   parte   Grossmaver,    177 

Sup.  Ct.  Rep.  673.  U.  S.  49,  44  L.  ed.  666,  20  Sup.  Ct. 

8Ex   parte    Perry,    102   U.    S.    183,  Rep.  535. 

26  L.  ed.  43;  Bank' v.  Sweeney,  1  Pet.  i4Ex  parte  Roberts,  15  Wall.  .387, 

567,  7  L.  ed.  265;  In  re  Parsons,  150  21  L.  ed.  131. 

U.  S.  150,  37  L.  ed.  1035,  14  Sup.  Ct.  isLife  &  F.   Ins.   Co.  v.  Wilson,  8 

Rep.  50;  Ex  parte  Hovt,  13  Pet.  279,  Pet.  303,  8  L.  ed.  949. 

10  L.  etl.   161;    Ex  parte  Burtis,  103  leMorrison   v.   District   Court.    147 

U.  S.  238,  26  L.  ed.  392 ;  In  re  Humes,  U.  S.  26,  37  L.  ed.  60,  13  Sup.  Ct.  Rep. 

149  U.  S.  192,  37  L.  ed.  699,  13  Sup.  246. 

Ct.   Rep.    836;    Morrison    v.   District  i7ln  re  Rice,  la5  U.  S.  403,  39  L. 

Court,  147  U.  S.  14,  37  L.  ed.  60,  13  ed.  198,  15  Sup.  Ct.  Rep.  149. 

Sup.  Ct.  Rep.  246.  isEx  parte  Roberts,  6  Pet.  217,  8 

iiEx  parte  Sawyer,  21   Wall.  239,  L.  ed.  375. 

22  L.  ed.  617;   Ex'parte  Burits,  103  isEx   parte  Loring,  94  U.   S.  419, 

U.   S.   238,  26  L.   ed.  392;    Ex   parte  24  L.  ed.  165. 

Brown,  116  U.  S.  402,  29  L.  ed.  676,  20ln  re  Haberman  Mfg.  Co.  147  U. 

6  Sup.  Ct.  Rep.  387.  S.    530.   37    L.   ed.   266,    13    Sup.    Ct. 

i2Life  &  F.  Ins.   Co.  v.  Wilson,  8  Rep.   527. 

Pet.  304,  8  L.  ed.  949 ;  Ex  parte  Brad-  lEx   parte   Milwaukee,   etc.   R.   R, 

ley,   7   Wall.  377,   19  L.  ed.  214;   Ex  5  Wall.  190,  18  L.  ed.  676. 

parte   Burtis,   103  U.   S.   238,   26   L.  2Ex   parte  Tavlor,  14  How.   12,   14 

ed.  392.  L.  ed.  302. 

i3Life  &  F.  Ins.   Co.  v.  Adams,  9  3Ex   parte   Schwab,   98   U.   S.  240, 

Pet.  604,  9  L.  ed.  234;  Ex  parte  Hoyt,  25  L.  ed.  105. 

12  Pet.  290,  10  L.  ed.  161;  Ex  parte  4Unit«d  States  v.  Lawrence,  3  Dall. 

Many,  14  How.  25,  14  L.  ed.  311;  Ex  45,  1  L.  ed.  503. 

787 


§   844    LJJ  WKITS    AND    I'UOCESS.  [Code  Fed. 

[j]     Practice  on  prohibition  and  mandamus. 

Botli  niandanui.s  and  piolul)itioii  are  common  law  writs, s  although  the 
intervention  of  a  jury  is  uimecessary.9  The  proper  proceeding  for  their 
issuance  by  the  Supreme  Court,  is  to  apply  ex  parte  for  leave  to  lile  a 
verified  petitionio  praying  for  issuance  of  a  a  rule  to  show  cause  why  the 
writ  should  not  issue. n  addressed  to  the  lower  court,  or  to  the  judges 
thereof,  or  both.  12  The  petition  must  make  out  a  prima  facie  case  is 
it  is  said  that  in  application  for  prohibition  the  plaintiff  in  the  suit 
complained  of  may  be  joined  as  a  defendant  unless  it  be  the  government. i-* 
The  fact  that  the  court  is  represented  by  a  new  judge  does  not  affect 
the  right  to  the  writ. 1 5  The  rule  to  show  cause  may  be  dispensed 
with  by  consent. 16  It  was  not  issuable  by  the  Chief  Justice  when  holding 
the  August  term  under  an  early  law. if  Issuance  of  the  rule  on  petition 
for  prohibition  may  be  accompanied  with  an  order  to  proceed  no  further 
in  the  case  until  a  decision  in  the  premises. is  Although  formerly  a  pre- 
rogative writ  mandamus  is  now  regarded  as  an  action  by  the  party  upon 
whose  relation  it  is  granted.  1 9 

[k]     Mandamus  in  exercise  of  original  jurisdiction. 

While  Congress  has  power  to  authorize  mandamus  by  the  Supreme 
Court  against  government  executive  officers  in  those  cases  within  its  orig- 
inal jurisdiction,2  0  there  seems  to  be  no  cases  in  the  reports  where  the 
jurisdiction  has  been  exercised. 

§  845.     Mandamus  to  judicial  officers  for  returns  of  fees. 

The  circuit  courts  of  the  United  States  for  the  purposes  of  this 
act  [an  act  requiring  returns  of  fees  and  proof  of  accounts  of 
clerks,  etc.,  before  the  courts],  shall  have  power  to  award  the  writ 
of  mandamus,  according  to  the  course  of  the  common  law,  upon 
motion  of  the  Attorney  General  or  the  district  attorney  of  the  United 

sSmith  V.  Whitney,  116  U.  S.  174,  i^Smith  v.  Whitnev,  IIG  U.  S.  176. 

29  L.  ed.  601,  6   Sup.   Ct.  Rep.  570;  2G   L.  ed.   601,   6  Sup.   Ct.  Rep.  570. 

In  re  Cooper,  143  U.  S.  495,  36  L.  ed.  isin   re  Parker,  131   U.  S.  226,  33 

232.    12    Sup.    Ct.   Rep.   453;    United  L.  ed.  123,  9  Sup.  Ct.  Rep.  708. 

States  v.   Union   Pac.   R.   R.   2   Dill.  leLife  &   F.  Ins.  Co.  v.  Adams,  9 

527,  Fed.  Cas.  No.  16,599.  Pet.  572,  9  L.  ed.  233. 

sin  re  Delgado,  140  U.   S.  588,  35  itEx  parte  Hennen,  13    Pet.    229, 

L.  ed.  578,  580,  11  Sup.  Ct.  Rop.  874.  10  L.  ed.  136. 

loPoultney  v.  La  Fayette,  12  Pet.  isUnited     States     v.     Hoffman,    4 

474,  9  L.  ed.  1161.  Wall.  158,  18  L.  ed.  354. 

1 1  Postmaster  Gen.  V.  Trigg,  11  Pet.  isKendall  v.  Stokes,   3   How.   100, 

174,  9  L.  ed.  676.  11  L.  ed.  513;  Kentuckv  v.  Dennison, 

i2lu  re  Parker,  131  U.  S.  226,  33  24  How.  97,  16  L.  ed.  725;  Hartman 

L.  ed.  123,  9  Sup.  Ct.  Rep.  708.  v.   Greenhow,    102   U.   S.   675,   26   L, 

isEx  parte  Christy,  3  How.  308.  11  ed.  273. 

L.  ed.  603;  Postmaster  Gen.  v.  Trigg,  soVirginia  v.  Rives,  100  U.  S.  325, 

11  Pet.  174,  9  L,  ed.  676.  '5  L.  ed.  672.    Supra,  note[e]. 

788 


Procedure  I         TO    COMPKL    CAUKIERS    TO    I'UBLISH    RATE.  §  848 

States,  to  any  officer  thereof,  to  eoiii])el  him  to  make  the  returns 
and  perform  the  duties  in  tliis  act  required. 

§  4,  of  act  Feb.  22,  1875,  c.  95,  18  Stat.  333,  U.  S.  Comp.  Stat.  1901, 
p.   649. 

§  846.     Peremptory  mandamus  against  carriers  to  compel  equal 
facilities. 

If  any  question  of  fact  as  to  the  proper  compensation  to  the  com- 
mon carrier  for  the  service  to  be  enforced  by  the  writ  [i.  e.  the  writ 
of  mandamus  sought  by  a  shipper  to  compel  equal  facilities]  is  raised 
by  the  pleadings,  the  writ  of  peremptory  mandamus  may  issue,  not- 
withstanding such  question  of  fact  is  undetermined,  upon  such 
terms  as  to  security,  payment  of  money  into  the  court,  or  otherwise, 
as  the  court  may  think  proper,  pending  the  determination  of  the 
question  of  fact. 

Part  of  §  23  added  to  act  of  Feb.  4,  1887,  by  act  Mar.  2,  1889,  c.  382,  25 
Stat.  862,  U.  S.  Comp.  Stat.  1901,  p.  3172. 

The  first  part  of  the  above  section  confers  jurisdiction  to  issue  manda- 
mus.'' The  last  clause  provides  that  the  remedy  given  by  mandamus 
is  merely  cumulative. 5  Unjust  discrimination  is  the  gist  of  the  oflense 
and  it  must  be  pleaded  and  proved.fi  Peremptory  mandamus  will  not  issue 
unless  a  case  of  unjust  discrimination  is  made  out."  Plea  in  abatement 
to  a  second  writ  of  mandamus  will  be  sustained  where  between  the  same 
parties  and  where  the  gist  of  the  unjust  discrimination  alleged,  is  the 
same. 8 

§  847.  —  remedy  by  mandamus  merely  cumulative. 

The  remedy  hereby  given^*^  by  writ  of  mandamus  shall  be  cumu- 
lative, and  shall  not  be  held  to  exclude  or  interfere  with  other  reme- 
dies provided  by  this  act  or  the  act  to  which  it  is  a  supplement. 

Part  of  §  10  act  Mar.  2,  1889,  c.  382,  25  Stat.  862,  U.  S.  Comp.  Stat. 
1901,  p.  3172. 

§  848.     Mandamus  to  compel  carriers  to  publish  rate  schedules. 

If  any  such  common  carrier  [i.  e.,  as  is  within  the  pro\isions  of 
the  interstate  commerce  acts]  shall  neglect  or  refuse  to  file  or  pub- 
lish its  schedules  or  tariffs  of  rates,  fares  and  charges  as  provided 

•»Ante,   §   152.  ^United   States   v.   Delaware.  L.  & 

5Post,  §  847.  W.   R.  R.  40  Fed.   101.   105. 

fiUnited  States  v.  Norfolk  &  W.  sUnited  Sttites  v.  Norfolk  &  W. 
Ry.  109  Fed.  836.  Rv.  114  Fed.  682. 

"inSee  ante,  §§  84G,  152. 
789 


§  849  WRITS  AND  PROCESS.  [Code   Fed. 

in  this  section,  or  any  part  of  the  same,  such  common  carrier  shall, 
in  addition  to  other  penalties  herein  prescribed,  be  subject  to  a  writ 
of  mandamus,  to  be  issued  by  any  circuit  court  of  the  United  States 
in  the  judicial  district  Avherein  the  principal  office  of  said  common 
carrier  is  situated,  or  wherein  such  offense  may  be  committed,  and 
if  such  common  carrier  be  a  foreign  corporation  in  the  judicial  dis- 
trict wherein  such  common  carrier  accepts  traffic  and  has  an  agent 
to  perform  such  service,  to  compel  compliance  with,  the  aforesaid 
provisions  of  this  section. 

Part  of  §  6  act  Feb.  4,  1887,  c.  104,  24  Stat.  380,  as  amended  Mar.  2, 
1889,  c.  382,  §  1,  25  Stat.  855,  U.  S.  Comp.  Stat.  1901,  p.  3158. 

§  849.  —  form  of  its  issuance  and  effect  of  non-compliance. 

Such  writ  [i.  e.  as  is  mentioned  in  the  preceding  section] ^^  shall 
issue  in  the  name  of  the  people  of  the  United  States,  at  the 
relation  of  the  Commissioners  appointed  under  the  provisions 
'of  this  act;  and  the  failure  to  comply  with  its  requirements  shall 
be  punishable  as  and  for  a  contempt. 

Part  of  §  6,  act   Feb.  4,  1887,  c.   104,  24  Stat.  380,  as  amended  Mar. 
2,  1889.  c.  382,  §   1,  25  Stat.   855,  U.  S.  Comp.  Stat.  1901,  p.  3158. 

The  Commission  is  also  authorized  to  sue  out  injunction  until  schedules 
are  published. 1 4 

§  850.     Bankruptcy  courts'  power  to  issue  process. 

The  courts  of  bankruptcy  as  hereinbefore  defined,  viz.,  the  district 
courts  of  the  United  States  in  the  several  States,  the  supreme  court 
of  the  District  of  Columbia,  the  district  courts  of  the  several  Terri- 
tories, and  the  United  States  courts  in  the  Indian  Territory  and 
the  District  of  Alaska  .  .  .  are  hereby  invested,  within  their 
respective  territorial  limits  .  .  .  with  such  jurisdiction  at  law 
and  in  equity  as  will  enable  them  to  exercise  original  jurisdiction 
in  bankruptcy  proceedings  .  .  .  to  .  .  .  issue  such  process, 
and  enter  such  judgments  in  addition  to  those  specifically  provided 
for  as  may  be  necessary  for  the  enforcement  of  the  provisions  of 
this  act[i.  e  the  bankruptcy  law  of  1898.] 

Part  of  §  2,  act  July  1,  1898,  c.  541,  30  StiU.  545,  540,  U.  S.  Comp. 
Stat.  1901,  p.  3420. 

The  above  section  is  stated  in  full  elsewhere. is 

13 Ante,  §  848.  i6Post  §  2220.    See  also  as  to  serv- 

KPost,  §  1347.  ices  of  petition  in  involuntary  bank- 

ruptcy, post  §  2278. 
790 


rrocediire]    PROVISIONS  AUTHORIZING  SERVICE  OF  PROCESS  §   852 

§  851.     Statutory   provisions   as   to   place   where   process   is   re- 
turnable. 

The  statutes  defining  the  Federal  judicial  districts  in  the  various 
States,  have  sometimes  created  judicial  divisions  in  districts  by  a 
declaration  that  all  process  against  defendants  residing  in  designated 
■counties  should  be  returnable  to  a  given  place,  therein  and  provid- 
ing for  terms  of  court  at  that  place.  The  statutes  affecting  divi- 
sions in  the  Texas  districts  have  uniformly  been  so  framed.^*^  Other 
statutes  have  in  terms  defined  the  boundaries  of  judicial  divisions, 
but  have  further  proceeded  to  declare  that  process  against  persons 
residing  in  such  division  be  returned  to  the  term  of  court  held 
therein.2"  ^he  legislation  for  other  districts  containing  divisions 
has  contained  no  provision  as  to  return  of  process.  In  yet 
other  cases,  where  there  are  no  divisions  of  the  judicial  dis- 
tricts, though  several  designated  places  of  holding  court  therein, 
the  courts  themselves  have  adopted  rules  providing  as  to  the  place 
to  which  process  issued  shall  be  returnable.  In  all  of  these  cases 
it  is  necessary  for  the  practitioner  to  advise  himself  as  to  the  status 
of  the  law  in  any  particular  district  or  division. 
Author's  section. 

§  852.  Provisions  authorizing  service  of  process  throughout  dis- 
tricts containing  judicial  divisions. 
Some  of  the  statutes  creating  judicial  divisions  in  Federal  ju- 
dicial districts  have  contained  specific  provision  as  to  service  and 
exscution  of  process  in  a  district  so  divided.  Thus  acts  dividing  the 
districts  of  Alabama  into  divisions  have  provided  that  "all  mesne  and 
final  process,  subject  to  the  provisions  of  this  act,  issued  in  eitlier 
of  said  divisions,  may  be  served  and  executed  in  either  or  both  of  the 
divisions."^  There  is  a  similar  provision  for  the  divisions  of  the 
southern  district  of  California^  for  the  divisions  in  the  districts  of 
Georgia;-^  for  the  divisions  of  the  Idaho  district;''  of  the  eastern 

i9Ant«,  §  288.  5 Act  April  12.  1900,  c.  185,  §  2,  31 

2  0See  ante.  §§  405,  406.  414.  Stat.  74.  U.  S.  Comp.  Stat.   1901.  p. 

3Act    May   2,    1884,    c.   .38,    §   4,  2.3  340:    Act  .June  30.  1902,  c.  3.3,S.   §   7. 

Stat.  18.  U.  S.  Comp.  Stat.   1901.   p.  32  Stat.  .551.  U.  S.  Comp.  Stat.  1903. 

319;  Act  March  3,  1905,  c.   1419,  §  7.  p.  5S:   Act  March  3,  1905.  c.  1431,  33 

33  Stat.  988,  U.  S.  Comp.  Stat.  1905.  Stat.   1000.  U.  S.   Comp.   Stat.    1905, 

p.  79.  p.  88. 

4Act  May  29,  1900,  c.  594.  §  0.  31  6Act  July  5,  1892,  c.  145,   §  4,  27 

Stat.  220,  U.  S.  Comp.  Stat.  1901,  p.  Stat.  73,  U.  S.  Comp.  Stat.  1901,  p. 

328.  343. 

791 


S   852 


WRITS  AND   rUOCESS. 


[Code  Fed. 


district  of  Tennessee;'  of  the  districts  of  Missouri  i**  the  soutliern 
district  of  Iowa;"  for  the  divisions  of  the  Kansas  district^ ^  of  the 
Xortii  Dakota  district ;i^  of  the  Utali  district:^*  of  the  Washington 
distriet.i''  and  the  two  districts  of  OhioJ^  The  act  of  1887  estab- 
lishing divisions  in  the  Missouri  districts  provided  that  "process 
issuing  out  of  the  courts  of  either  division  of  said  districts  shall  be 
directed  to  the  marshal  of  the  district  in  which  the  division  is  locat- 
ed, and  may  be  executed  by  him  or  his  deputies  upon  the  party  or 
parties  against  whom  issued  wherever  found  within  his  district.''^''' 
in  addition  to  the  provision  above  noted,  for  the  western  district  of 
^lissouri,  there  was  an  earlier  general  provision  applicable  to  both 
districts,  that  "process  issuing  out  of  the  courts  of  either  division 
of  said  districts  shall  be  directed  to  the  marshal  of  the  district  in 
which  the  division  is  located,  and  may  be  executed  by  him  or  his 
deputies  upon  the  party  or  parties  against  whom  issued  wherever 
fovmd  within  his  district."^ ^  The  purpose  of  these  provisions  is 
to  guard  against  the  inference  that  process  issued  in  one  division 
could  not  be  served  anywhere  in  that  district.  But  failure  to  so  enact 
would  not  justify  the  assumption  that  process  could  only  be  exe- 
cuted in  the  division  wherein  it  was  issued,  in  view  of  the  general 
intent  manifested  by  the  legislation  of  Congress  in  that  respect.^* 
It  seems  safe  to  assert  therefor,  as  a  universal  rule,  that  process  may 
be  executed  and  served  anywhere  within  a  district,  from  a  division  of 
M'hich  it  may  properly  issue. 
Author's  section. 

7  Act  February  7,  1900,  c.   10,  §  6,        is  Act  April  5,  1890,  c.  65,  §  4,  26 

31   Stat.   6,  U.   S.  Coni,p.   Stat.   1901.  Stat.  45.  U.  S.  Comp.  Stat.   1901.  p. 

p.  419.  4.39. 

8Act  January  24,  1901,  c.  164,  §  6,        isAct  June  8,  1878,  c.  1069,  §  6,  20 

31  Stat.  739.  U.  S.  Comp.  Stat.  1901,  Stat.  102;  Act  Feb.  4,  1880,  c.  18,  § 

p.  391;  Act  January  31,  1905,  c.  287,  7,  20  Stat.  64,  U.  S.  Comp.  Stat.  1901, 

§  6.  33  Stat.  627,  U.  S.  Comp.  Stat.  p.  402.  404. 
i905.  p.  104.  iTAct   Feb.   28,    1887,   c.   271,    §   5, 

9Act  June  1,  1900,  c.  601,  §  2,  31  24  Stat.  426,  U.  S.  Comp.  Stat.  1901, 

Stat.  249,  U.  S.  Comp.  Stat.  1901,  p.  p.  387. 
354.  i9Act  February  28,  1887,  c.  271.  § 

iiAct  Mav  3,   1892,  e.  59,   §  2,  27  5.   24   Stat.   425,   U.    S.    Comp.   Stat. 

Stat.  24,  U.*  S.  Comp.  Stat.  1901.  p.  1!K)1,  p.  387. 
357.  2  0E.  g.,  see  post,  §§  853-855;  ante 

i3Aet    June    29,    1906,   c.    3595,    24  §  402.     And  see  Rosecrans  v.  United 

Stat.  609.  States,  165  U.  S.  260,  41  L.  ed.  70S, 

14  Act  March  2,  1897,  c.  366,  §  3,  29  17  Sup.  Ct.  Rep.  302. 
Stat.   620,    U.    S.    Comp.   Stat.    1901, 
p.  435. 

792 


rrocociiK-l      ri.ACK.    MODE   AND   SUFFICIENCY  OF  SERVICE.        |   853    [b] 

§  853.     Place,  mode  and  sufficiency  of  service. 

Further  than  to  prescribe  that  Federal  process  be  served  by  the 
marshal.  Congress  has  made  no  provision  as  to  the  manner  in  which 
process  sliall  he  served,  nor  as  to  sufficiency  of  service  in  actions 
against  corporations,  municipal  bodies,  etc.  There  are  rules  of  court 
respecting  service  of  process  in  equity,^  and  admiralty,^  and  in  tlu- 
Supreme  Court.-""  In  common  law  causes  the  local  state  practice  as 
to  mere  mode  and  sufficiency  of  service  governs. ^^^'f""^  But  State 
laws  permitting  service  by  publication,  or  substituted  service,  or 
foreign  attachment  against  persons  outside  the  State,  do  not  pre- 
vail in  the  Federal  courts.  On  the  contrary  the  general  rule  there  is 
that  process  can  only  be  served  within  the  district  wherein  it  is  is- 
sued.i^*^^  The  particular  provisions  in  subsequent  sections  of  this 
chapter  as  to  substituted  service  and  service  in  other  districts,  are 
in  the  nature  of  exceptions  to  the  general  rule 
Author's  section. 

[a]  State  law  governs. 

The  State  law  as  to  service  of  process  in  common  law  causes  is  part 
of  the  mode  of  proceeding  and  adopted  by  R.  S.  §  914  ;T  and  State  decisions 
construiiif^  such  law  will  be  followed.**  A  State  law  declaring  that  service 
of  summons  is  deemed  the  commencement  of  a  suit  is  followed  in  common 
law  causes.''  Where  the  statute  prescribes  the  mode  of  service  upon  a 
municipality,  it  cannot  be  made  in  any  other  mode  though  another  mode 
could  have  been  permissible  at  comon  law.io  But  a  State  law  imposing 
a  penalty  for  failure  to  serve  a  summons  does  not  apply  to  the  marshal,  n 
The  questions  whetlier  a  Federal  court  acquired  jurisdiction  by  service 
is  one  of  Federal  laws  and  not  controlled  by  State  decisions.i2 

[b]  Sufficiency  of  service  on  foreign  corporations. 

The  law  as  to  when  a  foreign  corporation  is  deemed  "found"  within 
a  Federal  judicial  district  for  purposes  of  jurisdiction  has  already  been 
considered.!''  The  geneial  principle  that  the  State  law  as  to  mode  of  serv- 
ice is  adopted  by  the  Federal  courts  in  common-law  causes,  applies  in  suits 

3 Post.  §*>?].  U.  S.  695.  32  L.  ed.  lOSO.  9  Sup.  Ct. 

4Post,  §  1202.  Rep.    690.     See   also  Ex  parte  Conn- 

sPost,  §  8o8.  awav.   178  U.  E.  430.  44  L.  ed.  1138, 

7Amv  v.  Watertown.  130  U.  S.  .301,  20  Sup.  Ct.  Rep.  9.51. 

32  L.  I^d.   940,  9   Sup.   Ct.  Rep.  530;  i  oAmv  v.  Watertown.  130  U.  S.  .301, 

Perkins   v.    Watertown.   5    Biss.   320,  32  L.  ed.   946.    9  Sup.    Ct.   Rep.   .'i30. 

P'ed.  Cas.  No.  10.991.  But  see  Elsoii  v.  \\aterford.  135  Fed. 

RAmv  V.  Watertown.  130  U.  S.  .301,  247. 

.32  L.   ed.  946,  9   Sup.   Ct.  Rep.   530;  iiLowery  v.   Story.  31   Fed.  770. 

Toledo  C.  S.  Co.  v.  Computing  Scale  i  zXpw  Haven,  etc.  Co.  v.  Downing- 

Cn.   142  Fed.  919  — C.  C.  A.  .  ton.  etc.  Co.  130  Fed.  60.). 

;':\lic].igan  Ins.  Bank  v.  Eldred.  130  i4Ante,  §  401   [c]  et  seq. 

793 


§  853   [b] 


WRITS   AND  PROCESS. 


[Code  Fed. 


against  foreign  corporations ;  1 5  although  a  Federal  court  is  not  bound  by 
State  practice  requiring  the  sufficiency  of  service  to  be  tried  by  a  jury. is 
The  question  of  mode  of  service  is  not  to  be  confused  with  the  juris- 
dictional question  as  to  when  a  corporation  is  "found"  within  a  district. 
The  former  is  a  mere  matter  of  procedure  in  which  Congress  has  seen  fit 
to  require  the  Federal  practice  to  conform  to  that  of  the  States.  The 
latter  is  a  question  of  the  power  of  Federal  courts  under  Federal  statutes, 
.and  the  State  laws  and  decisions  cannot  vary  or  affect  the  result,  i'?  Be- 
fore the  question  of  mode  or  sufficiency  of  service  can  arise  there  must 
be  presented  a  case  where  a  corporation  is  deemed  "found"  for  juris- 
dictional purposes.  If  so  "found"  then  a  State  statute  authorizing  valid 
service  against  a  statutory  agent  is  available  to  a  Federal  suitor  and  he 
may  have  service  upon  such  agent. is  So  also  a  State  statute  applies  in 
service  of  Federal  process,  which  declares  generally  the  class  of  officers 
and  agents  of  a  corporation  that  may  be  served  with  process. 20  Where 
service  on  a  resident  director,  or  financial  agent  1  is  valid  by  the  State 
code,  it  suffices  in  the  Federal  court. 2  Other  cases  have  relied  upon  the 
provisions  of  State  law  as  to  service  on  foreign  corporations,  in  upliold- 
ing  service  on  the  general  agents  of  a  railroad; 3  on  a  station  agent;* 
■on  the  manager  of  a  subordinate  company; 5  on  a  locomotive  engineer; 6 
on  general  agents  of  a  railroad'?  in  setting  aside  service  on  traveling 
solicitor^  in  holding  that  the  statute  as  to  service  on  resident  agent  was 
not  exclusive  of  other   service; 9   in  setting  aside  service  on  an  occasional 


15 Van  Dresser  v.  Oregon  Rv.  etc. 
Co.  48  Fed.  202. 

16 Wall  V.  Chesapeake,  etc.  Ry.  95 
Fed.  .39«.  37  C.  C.  A.  129.  See  also 
Benton  v.  Mcintosh,  96  Fed.   132. 

i-^Ante,  §  5.  See  Barrow  S.  S.  Co. 
V.  Kane,  170  U.  S.  100,  42  L.  ed.  964, 
18  Sup.  Ct.  Rep.  .526. 

isEx  parte  Scliollenberg,  96  U.  S. 
36»,  24  L.  ed.  S53 ;  Brownell  v.  Troy 
R.  R.  3  Fed.  761,  18  Blatohf.  243; 
Runkle  v.  Lamar,  2  Fed.  9;  New 
England  M.  L.  Ins.  Co.  v.  Wood- 
worth,  111  U.  S.  138,  146,  28  L.  ed. 
382,  4  Sup.  Ct.  Rop.  .364;  Ehrman  v. 
Teutonia  Ins.  Co.  1  Fed.  471,  1  Mc- 
Crarv,  173;  Mutual,  etc.  Assn.  v. 
Phelps,  190  U.  S.  147,  47  L.  ed.  987, 
23  Sup.  Ct.  Rep.  707 ;  Carstairs  v. 
Ins.  Co.  13  Fed.  823. 

2  0Provident  Sav.  Soc.  v.  Ford,  114 
U.  S.  639,  29  L.  ed.  261,  5  Sup.  Ct. 
Rep.  1104;  Conecticut  M.  L.  Ins.  Co. 
v.  Spratley.  172  U.  S.  602,  43  L.  ed. 
569,  19  Sup.  Ct.  Rep.  ,308;  Societe 
Fonciere,  etc.  v.  Milliken,  1.35  U.  S. 
.•^OT,  34  L.  ed.  209,  10  Sup.  Ct.  Rep. 
S23;  Mexican  C.  R.  R.  v.  Pinknev, 
149  U.  S.  201,  37  L.  ed.  702,  13  Sup. 


Ct.  Rep.  859;  Barnes  v.  Western  U. 
T.  Co.  120  Fed.  550;  Van  Dresser  t. 
Oregon  Ry.  etc.  Co.  48  Fed.  202. 

1  Meyer  v.  Penn.  etc.  Ins.  Co.  108 
Fed.  169;  Reillv  v.  Philadelphia,  etc. 
Co.   109  Fed.  349. 

2Amer.  Lock.  Co.  v.  Dickson  Mfg. 
Co.  117  Fed.  972. 

3  Denver,  etc.  Co.  v.  Roller,  100  Fed. 
738,  49  L.R.A.   77. 

4Hat-Sweat  Mfg.  Co.  v.  Davis,  etc. 
Co.  31  Fed.  294;  Dinzy  v.  111.  Cent. 
R.  R.  61  Fed.  40;  Union  Pac.  R  R. 
V.  Novak,  61  Fed.  573,  9  C.  C.  A. 
62  9. 

sNorton  v.  Atchison,  etc.  R.  R.  61 
Fed.  618. 

sDevere  v.  Delaware,  etc.  R.  R.  60 
Fed.  886. 

TBlock  V.  Atchison,  etc.  R.  R.  21 
Fed.  529. 

8N.  K.  P'airbank  &  Co.  v.  C.icin- 
nati,  etc.  R  R.  54  Fed.  420,  4  C.  C. 
A.  403,  38  L.R.A.  271 ;  Wall  v.  Chesa- 
peake, etc  Co.  95  Fed.  398.  37  C.  C. 
A.  129;  ^faxwell  v.  Atchison,  etc.  R. 
R.  34  Fed.  286. 

sMutual  R.  F.  Ins.  Co.  v.  Cleveland. 
W.  M.  82  Fed.  508,  27  C.  C.  A.  212. 


794 


■ 


Procedure]      PLACE,    MODE   AND   SUFFICIENCY   OF   SERVICE.        §   853   [c] 

correspondent  of  a  news  agency ;io  and  on  a  "distributing  agent ;"ii  and 
service  by  mail  12  in  upholding  service  on  the  agent  in  the  very  transaction 
sued  upon;i3  upon  a  managing  agent;i4  in  setting  aside  service  upon  a  li- 
censee of  a  telephone  company  because  not  a  managing  agent ;i 5  in  uphold- 
ing service  upon  the  general  financial  agents  of  a  foreign  steamship  com- 
pany.1 6  A  State  law  permitting  service  on  an  employee  in  default  of  any 
designated  statutory  agent  will  be  construed  strictly. it 

[c]  —  effect  where  no  State  law,  or  law  inapplicable  or  prohibitive. 

If  there  is  no  State  law  declaring  the  proper  mode  of  serving  foreign 
corporations,  it  would  seem  that  a  general  statute  as  to  service  upon  cor- 
porations would  apply.  2  If  the  State  law  required  that  service  against  a 
foreign  corporation  be  by  attachment  of  its  property,  which  is  forbidden  in 
Federal  courts,  then  it  a  case  where  literal  conformity  to  the  State  practice 
would  not  be  required  under  R.  S.  §  914,  and  service  upon  the  Presi- 
■dent  would  be  upheld. 3  Certainly  a  suit  cognizable  in  the  Federal  court 
of  a  district  because  within  its  jurisdictional  power  under  the  acts  of 
Congress  and  decisions  of  the  Federal  courts,  would  not  be  allowed  to  be 
•defeated  because  the  State  law  did  not  indicate  the  mode  of  service  of 
process.  The  practice  conforms  to  State  practice  only  "as  near  as  may  be." 
And  it  is  equally  true  that  if  the  Feaeral  court  of  a  district  had  no 
jurisdiction  because  a  foreign  corporation  was  not  deemed  "found"  there- 
in, the  fact  of  service,  though  in  the  mode  prescribed  by  the  State  law, 
would  not  be  eflfective  to  confer  jurisctiction.4  The  statutes  and  decisions 
■of  some  States  do  not  permit  service  against  the  local  representatives  of 
a  foreign  corporation  in  a  transitory  cause  of  action  arising  outside  the 
State,  and  some  of  the  circuit  courts  have  held  that  the  Federal  courts 
in  such  State  were  similarly  disabled.^     But  this  is  confusing  the  question 

See  Johnon  v.  Hanover,  etc.  Ins.  Co.  i^Xevv  R.  M.  Co.  v.  Seelev,  120  Fed. 

15    Fed.    97,    II    Biss.    452;    Funk    v.  193,  56  C.  C.  A.  505.     See  also  Sobrio 

Anglo,  etc.  Ins.  Co.  27  Fed.  330.  v.   ^Manhattan    L.    Ins.    72    Fed.    566. 

loEvansville  C.  Co.  v.  United  Press,  Setting    aside     service     for    non-com- 

■74  Fed.  niS.  pliance.     Kiufeke   v.   Merchants,  etc. 

iiGottschalk  Co.  v.  Distilling,  etc.  Co.    11    Fed.    282,    3    MeCrary,    547, 

Co.  50  Fed.  681.  where  return  did  not  show  service  on 

i2Farmer    v.    National,    etc.    Asso.  agent  in  charge  of  office. 

.50  Fed.  82<).  2See   Wilson   P.    Co.   v.   Hunter,   8 

i3Estes  V.  Belford,  22  Fed.  275,  23  Biss.  429,  Fed.  Cas.  No.  17.852. 

Blatchf.  1.  sHayden   v.  Androscoggin   Mills,   1 

i4PaliiU'r     V.     Chicago    Herald,    70  Fed.  93. 

Fed.  8S6;  Brewer  v.  George  Knapp  &  4St.   Clair   v.   Cox.    106   U.   S.   350, 

Co.    S2    Fed.    694.     But    see    contra:  27   L.  ed.  222.   1   Sup.  Ct.   Rep.   354; 

'Cnion  Ass.  P.  Co.  v.  Trimes,  84  Fed.  Fitzgerald,  etc.  Co.  v.  Fitzgerald,  137 

419.  U.  S.  98,  106,  34  L.  ed.  012,  11    Sup. 

isUnited   States  v.  American  Bell  Ct.     Rep.     36:     Goldey    v.     Morning 

T.   Co.   29   Fed.    17.  News,    156   I'.  S.   518.  ,39  L.   ed.   517, 

i6ln  re  Hohorst,  150  U.  S.  603.  37  15  Sup.  Ct.  Rep.  559. 

L.   ed.    1211.   14   Sup.   Ct.   Rep.   221;  sSee  United   States  v.   Amer.   Bell 

Barron.  S.  S.  Co.  v.  Kane.  170  U.  S.  T.  Co.  29  Fed.  17:  Union  Associated 

100,  42  L.  ed.  964,  IS  Sup.  Ct.  Rep.  526.  Press  v.  Times  Printing  Co.  83  Fed. 

795 


{   853  [d]  WRITS    AND    PROCESS.  [Code   Ked. 

of  procedure  with  that  of  jurisdictional  power.  If  the  Federal  courts 
deem  a  corporation  ■•found"'  within  a  district  and  the  cause  of  action 
is  by  them  cognizable,  the  fact  that,  from  whatever  cause,  the  State- 
court  would  not  take  jurisdiction,  is  immaterial. 6 

[d]     General  rule  that  process  must  be  served  within  district. 

The  proA'ision  that  civil  suit  must  be  brought  in  the  district  of  (lofoiid- 
ants  residence  or  where  he  is  found,!*  has  uniformily  been  construed  to- 
mean  that  valid  judgment  in  the  Federal  courts  cannot  be  rendered  unless 
defendant  has  been  served  within  the  district  or  voluntarily  appears. lo 
Circuit  and  district  courts  cannot  issue  process  beyond  the  limits  of 
their  districts. n  Process  of  attachment  against  a  persons  gootU  within 
a  district  to  compel  his  appearance  therein  though  not  there  found,  ia 
not  permissible  in  Federal  courts  though  authorized  by  the  laws  of  many 
States. 12  So  a  State  case  permitting  service  upon  an  infants  general 
guardian  and  requiring  him  to  appear  and  defend  will  not  apply  in  the 
Federal  court  to  give  it  jurisdiction,  when  the  infant  is  not  in  the  district 
and  the  proceeding  is  not  within  the  Federal  lawi3  permitting  service 
elsewhere. 14  The  Federal  law  as  to  service  by  publication  is  exelu^iive 
of  State  statutes  upon  the  subject. is 

§  854.  Process  may  run  in  another  district  of  state  if  some 
defendants  there. 
Wlien  a  State  contains  more  tlian  one  district,  every  suit  not  of 
a  local  nature,  in  the  circuit  or  district  courts,  thereof  ...  if 
there  are  two  or  more  defendants,  residing  in  different  districts  of 
the  State,  .  .  .  may  be  brought  in  either  district,  and  a  dupli- 
cate writ  may  be  issued  against  the  defendants,  directed  to  the  mar- 
shal of  any  other  district  in  which  any  defendant  resides.  The  clerk 
issuing  the  duplicate  writ  shall  indorse  thereon  that  it  is  a  true 
copy  of  a  writ  sued  out  of  the  court  of  the  proper  district;  and  sucli 
original  and  duplicate  writs,  when  executed  and  returned  into  tlu> 
office  from  which  they  issue,  shall  constitute  and  be  proceeded  on 

822:    Grover    v.    Amer.    Exp.    Co.    11  uToland   v.   Sprague,   12   Pet.  3.30, 

Fed.  386.  9  L.  e<l.   lOOS ;   Herndon  v.  Ridgwav, 

eParrow  S.  S.  Co.  v.  Kane.  170  U.  17  How.  425.  15   L.  ed.   100;    I'nited 

S.  100.  42  L.  ed.  964.  18  Sup.  Ct.  Rep.  States  v.   Crawford.  47   Fed.   .i(il. 

.526:  Carstairs  V.  Ins.  Co.  13  Fed.  823;  izToland   v.    Sprague,    12   Pet.  3.30, 

Revans    v.    Southern    M.    R.    R.    114  9  L.  ed.  1093:  Chaffee  v.  Havward,  20^ 

Fed.  982.     See  Block  v.  Atchison,  etc.  How.  21.5,   lo  L.  ed.  851. 

Ry.  21  Fea.  529.  isSee  post,  §  856. 

'sAnte.  §  402.  i^Insurance  Co.  v.  Bangs,  103  U.  S. 

inLe\y  v.  Fitzpatriek.  15  Pet.  171,  439,  26  L.  ed.  580. 

10  L.   ed.    699;    Chaffee  v.   Havward,  isBracken  v.  Union  P.  Ry.  56  Fed. 

20  How.   215,   15   L.   ed.   851;    Insur-  447,  5  C.  C.  A.  548. 
ance    Co.  v.  Bangs,  103  U.  S.  439,  26 
L.  ed.  580. 

796 


iPiocedure]  SERVICE   BY  PUBLICATIOX,   ETC.  §   856 

as  one  suit;  and  upon  any  judgment  or  decree  rendered  therein, 
execution  may  be  issued  directed  to  the  marshal  of  any  district  in 
the  same  State. 

Part  of  R.  S.  §  740,  U.  S.  Comp.  Stat.  1901,  p.  588. 
The  above  section  is  set  forth  in  full  in  the  chapter  on  venue. is 

§  855.     Process  in  local  actions  may  run  in  another  district  of 
state. 
In  suits  of  a  local    nature,   where  the  defendant  resides  in  a 
different  district  in  the  same  State  from  that  in  which  the  suit 
is  brought,  the  plaintiff  may  have  original  and  final  process  against 
him,  directed  to  the  marshal  of  the  district  in  which  he  resides. 
R.  S.  §  741.  U.  S.  Comp.  Stat.  1901,  p.  588. 

This  section  together  with  R.  S.  §§  740i  and  742  was  originally  enacted 
in  1858.2  R.  S.  §  742  specifically  empowers  the  court  trying  the  cause, 
lo  issue  the  process. 3  It  has  been  doubted  whether  the  three  provisions 
taken  from  the  act  of  1858  are  still  in  force  in  view  of  the  act  of  1875  for- 
bidding suit  "against  any  person  by  any  original  process  or  proceeding  in 
any  other  district  than  that  whereof  he  is  an  inhabitant;"  but  the  better 
opinion  is  that  they  are  not  superseded. < 

§  856.  Service  by  publication,  etc..  in  suits  to  enforce  liens,  re- 
move cloud,  etc. 
When  in  any  suit,  commenced  in  any  circuit  court  of  the  United 
States,  to  enforce  any  legal  or  equitable  lien  upon,  or  claim  to,'^'^^ 
or  to  remove  any  encumbrance  or  lien  or  cloud'^'^^"'^®^  upon  the  title 
to  real  or  personal  property  within  the  district  where  such  suit  is 
brought/^^  one  or  more  of  the  defendants  therein  shall  not  be  an 
inhabitant  of,  or  found  within,^^^  the  said  district,  or  shall  not  vol- 
untarily appear  thereto,  it  shall  be  lawful  for  the  court  to  make 
an  order  directing  such  absent  defendant  or  defendants  to  appear, 
plead,  answer,  or  demur,  by  a  day  certain  to  be  designated,  which 
order  shall  be  served^^^  on  such  absent  defendant  or  defendants, 
if  practicable,  wherever  found,  and  also  upon  the  person  or  persons 
in  possession  or  charge  of  said  property,  if  any  there  be ;  or  where 
such  personal  service  upon  such  absent  defendant  or  defendants 
is  not  practicable,  such  order  shall  be  published ^^^  in  such  manner 

isAntp.  §  40.3.  3Anto.  §  404. 

lAnte.  §  8.54.  4  Ante.  §  402. 

2Act   :Mav   4,   1858,  c.   27,   §   1,   11 
Stat.  272. 

797 


g   856   [a]  WRITS  AND  PROCESS.  [Code   Fod. 

as  the  court  may  direct,  not  less  than  once  a  week  for  six  cousfcutive 
weeks;  and  in  ease  such  absent  defendant  shall  not  appear,  plead, 
answer  or  demur  within  the  time  so  limited,  or  within  some  further 
time,  to  be  allowed  by  the  court  in  its  discretion,  and  upon  proof  of 
the  service  or  publication  of  said  order,  and  of  the  performance  of 
the  directions  contained  in  the  same,  it  shall  be  lawful  for  the  court, 
to  entertain  jurisdiction,  and  proceed  to  the  hearing  and  adjudica- 
tion of  such  suit  in  the  same  manner  as  if  such  absent  defendant 
had  been  served  with  process  within  the  said  district;  but  such 
adjudication  shall,  as  regards  such  absent  defendant  or  defendants, 
without  appearance,  affect  only  the  property  which  shall  have 
been  the  subject  of  the  suit  and  under  the  jurisdiction  of  the  court 
therein,!^'^  within  such  district,  and  when  a  part  of  the  said  real 
or  personal  property  against  which  such  proceeding  shall  Ije  talcen 
shall  be  within  another  district,  but  within  the  same  State,  said 
suit  may  be  brought  in  either  district  in  said  State  :^  Provided, 
however.  That  any  defendant  or  defendants  not  actually  personally 
notified  as  above  provided  may,  at  any  time  within  one  year  after 
final  judgment  in  any  suit  mentioned  in  this  section,  enter  his  ap- 
pearance in  said  suit  in  said  circuit  court,  and  thereupon  the  said 
court  shall  make  an  order  setting  aside  the  judgment  therein,  and 
permitting  said  defendant  or  defendants  to  plead  therein  on  pay- 
ment by  him  or  them  of  such  costs  as  the  court  shall  deem  just;  and 
thereupon  said  suit  shall  be  proceeded  with  to  final  judgment  ac- 
cording to  lawJ^^ 

§  8  of  act  Mar.  3,  1875,  c.  137,  18  Stat.  472,  U.  S.  Comp.   Stat.  1901, 
p.  513. 

[aj     History  of  section,  and  cross  references. 

Substituted  service  of  process  is  often  permitted  in  ancillary  suits. » 
This  statute  superseded  R.  S.  §  738,  which  was  originally  enacted  in  1872' o 
and  was  the  first  act  of  Congress  permitting  service  by  publication. 
Comparing  the  above  provision  of  the  act  of  1875  with  R.  S.  §  738, 
which  was  in  general  less  elaborate  and  comprehensive  in  its  terms,  the  fol- 
lowing changes  may  be  noted:  (a)  the  old  provision  was  restricted 
to  suits  in  equity  while  this  specifiies  "any  suit."  (b)  The  new  provision 
is  confined  in  terms  to  suits  commenced  in  the  circuit  courtu  while  R. 
S.   §  738  made  no   reference  to  the  forum  or  the  place  of  commencement.. 

sSee  ante.  §  404.  iiSee   Shaimvald  v.   Lewis,  5   Fori.. 

9  Ante,  §  3.  517,  6  Sawv.  585;  In  re  Waukesha  W. 

i"Act  June  1,  1872,  c.  255,  §  13,  17    Co.   116  Fed.   1011. 
Stat.  198. 

798 


Procedure]  SERVICE   BY   PUBLICATION,    ETC.  §   856   [b], 

While  suits  in  equity  to  enforce  liens  or  claims  are  in  fact  only  cog- 
nizable in  the  circuit  court;  the  wording  of  the  new  law  excludes  removed 
cases  from  its  scope, 12  whereas  the  old  one  did  not.  (c)  The  old  law 
referred  to  liens  or  claims  "against"  property  within  the  district,  the  new 
law  includes  suits  to  enforce  a  "claim  to"  property  which  is  a  very  dif- 
ferent thing,  (d)  The  class  of  cases  in  which  substituted  service  is  per- 
mitted is  also  further  increased  in  the  new  law  by  the  inclusion  of  suits 
"to  remove  any  encumbrance  or  lien  or  cloud  upon  the  title"  to  property. is 
(e)  The  old  law  required  the  order  served  or  published  to  state  that  the  de- 
fendant appear  "at"  a  certain  day,  the  present  law  requires  appearance  "by" 
a  certain  day.  (f)  The  present  law  prescribes  the  time  of  publication,  (g) 
The  specification  of  the  property  which  may  be  affected  by  a  judgment 
rendered  is  fuller  in  the  new  law,  in  the  interests  of  precision,  but  probably 
without  difference  in  legal  effect,  (h)  The  proviso  as  to  the  opening  of 
judgment  within  a  year  is  not  found  in  the  earlier  law.  These  are  alsa 
other  merely  verbal  changes. 

[b]     The  section  in  general. 

It  has  been  said  that  the  provision  does  not  permit  substituted  service 
on  citizens  of  Territories  or  of  the  District  of  Columbia, is  but  this  is  clearly 
not  so  where  jurisdiction  is  founded  on  other  than  diverse  citizenship. i"  In 
fact  service  has  been  made  vmder  this  section  upon  the  District  of  Columbia 
itself  in  a  case  where  a  railroad  property  foreclosed  was  situated  within 
the  eastern  district  of  Virginia  and  the  cause  arose  under  Federal  laws. is 
It  does  not  of  course  change  or  abolish  the  requirement  of  diversity'  in 
cases  where  jurisdiction  is  dependent  upon  the  citizenship  of  the  parties. 1 9 
The  cause  must  still  be  one  of  which  the  court  has  jurisdiction  either 
by  diverse  citizenship  or  because  of  a  Federal  question.20  it  merely  creates 
an  exception  to  the  general  rule  limiting  civil  suits  to  the  district  wherein 
a  person  is  inhabitant.  1  If  a  case  is  within  its  terms  it  is  not  necessary 
that  either  party  be  a  resident  of  the  district  where  suit  is  brought. 2 
Indeed  it  is  essential  that  the  defendant  to  be  served  "shall  not  be  an 
inhabitant  of,  or  person  within"  the  district.  The  section  applies  whore 
there  is  only  one  defendant,   as  well  as  to  cases  where  there  are  more. 3 

i2Woolridge   v.   McKenna,   S    Fed.  lAnte,  §  402  . 

650.  2Greelev  v.  Lowe.  15.5  U.  S.  58,  3!> 

i3See    .Jellenik    v.     Huron    C.     M.  L.  ed.  69.  15  Sup.  Ct.  Rep.  24;  Sevbert 

Co.  177  U.  S.  10,  44  L.  ed.  650,  20  Sup.  v.   Shamokin,   etc.  Co.   110  Fed.  SIO; 

Ot.  Rep.  559.  Knhn  v.  Morrison,  75  Fed.  81  :  Single 

i6Horsford  v.  Gudger,  35  Fed.  392.  v.  Scott  P.  Co.  55  Fed.  553:  Spencer 

I'Hay   v.    Alexandria,    etc.    Rv.    4  v.   Kansas   C.    S.   Yds.   56    Fed.   741; 

Hughes',  331,  Fed.  Cas.  No.  6,254a.  Ames   v.   Holdenbaum.   42   Fed.   .341  ; 

isHay   V.    Alexandria,    etc.    Ry.    4  American  F.  L.  M.  Co.  v.  Benson,  33^ 

Hughes.  331,  Fed.  Cas.  No.  6,254a.  Fed.  456. 

i»Brigham      v.      Luddington,      12  sDick  v.  Foraker.  155  U.  S.  404,  39 

Blatchf.    237,    Fed.    Cas.    No.    1.874;  L.  ed.  202,  15  Sup.  Ct.  Rep.  124;  Dock 

Tug  River  C.  &  S.  Co.  v.  Brigel,  67  v.    Whitman,    nr.    Fed.    S<K);     w'lieel- 

Fed.  625,  14  C,  C.  A.  577.  wright  v.  St.  Louis,  etc.  Co.  50  Fed. 

2oBrigham      v.      Luddington,      12  709. 
Blatchf.  237,  Fed.  Oas.  No.  1,874. 

799 


§  856   [c] 


WRITS    AND    PROCESS. 


[Code    Fed. 


It  is  the  only  general  enactment  of  Congress  permitting  service  by  pub- 
lication. It  is  exclusive,  and  State  laws  regarding  publication  have  no 
application  in  the  Federal  courts. 6  It  must  be  strictly  complied  \vith;7 
and  if  a  case  is  not  within  its  terms  a  judgment  so  procured  is  void.s 
It  has  been  held  that  the  mere  filing  of  bill  in  equity  under  this  section, 
does  not  stop  the  statute  of  limitations  from  running,  at  least  in  a  State 
where  it  is  service  of  process  that  is  declared  to  mark  the  commence- 
ment of  a  suit. 9  The  statute  of  1887  and  1888,  which  revised  other 
sections  of  the  act  of  1875  in  important  particulars,  declared  that  no  juris- 
diction or  right  mentioned  in  the  above  section  should  be  deemed  to  be  re- 
pealed or  affected  by  its  provisions. lo 

[c]     Suits  to  enforce  legal  or  equitable  liens  or  claims. 

These  words  are  broad  enough  to  reach  every  case  in  which  there  is  any 
sort  of  charge  upon  specific  property  capable  of  being  enforced  by  a  court 
of  equity.13  However  there  must  be  some  sort  of  a  preexisting  lien  or 
ciiarge  or  claim  against  specific  property  i*  something  more  than  the  general 
light  of  a  creditor  to  obtain  satisfaction  out  of  a  debtors  property  by 
attachment.! 5  Mortgage  foreclosure  suits  against  realty  within  the  dis- 
trict are  plainly  within  its  terms; is  and  suits  to  enforce  the  terms  of  a 
deed  of  trust  in  the  nature  of  a  mortgage; is  or  to  foreclose  an  ordinary 
deed  when  in  fact  a  mortgage. 20  A  suit  to  enforce  liens  upon  a  rail- 
road is  within  the  section  ;i  and  a  suit  to  enforce  a  judgment  lien.2 
A  suit  for  partition  is  a  suit  to  enforce  a  claim  to  real  estate  within 
this  clause; 3  so  also  is  a  suit  in  ejectment, ■«  and  a  lessees  suit  against 
a  lessor  to  enforce  rights  vxnder  the  provisions  of  an  expired  lease.5 
A  bondholders  suit  to  restrain  the  trustee  from  paying  over  certain  funds 
to  the  mortgagor  is  to  enforce  a  lien  or  claim  within  this  clause.'?     A  suit 


6 Insurance  Co.  v.  Bangs.  lOa  U.  S. 
43«,  26  L.  ed.  580;  Bracken  v.  Union 
Pac.  Ry.  56  Fed.  447,  5  C.  C.  A.  548. 

^Wooldridge  v.  McKenna,  8  Fed. 
650;  Batt  v.  Proctor,  45  Fed.  515; 
Bracken  v.  Union  Pac.  Rv.  56  Fed. 
449,  5  C.  C.  A.  548. 

sBeach  v.  Mosgrove,  16  Fed.  305, 
4  McCrary,  50. 

sBisbee  v.  Evans,  17  Fed.  474. 

lOAct  March  3,  1S87.  c.  375.  §  5, 
24  Stat.  555 :  act  August  13,  1888, 
c.  866,  §  5.  25  Stat.  436,  U.  S.  Comp. 
Stat.  1901,  p.  515.  And  see  Jellenik 
V.  Huron  C.  M.  Co.  177  U.  S.  10, 
44  L.  ed.  650,  20  Sup.  Ct.  Rep.  559. 

isShainwald  v.  Lewis,  5  Fed.  517, 
6  Sawy.  585. 

i4Sliainwa.ld  v.  Lewis,  5  Fed.  510, 
0  Sawy.  585.  It  must  not  be  a  sviit 
to  create  a  lien:  Jones  v.  Gould,  141 
Fed.  698. 


isDormitzer  v.  Illinois,  etc.  B.  Co. 
6  Fed.  217. 

i8Hav  V.  Alexandria  R.  R.  4 
Hughes',  331,  Fed.  Cas.  Xo.  6.254a; 
Jackson,  etc.  Co.  v.  Burlington,  etc. 
R.  R.  29  Fed.  474:  Ames  v.  Holde- 
baum,  42  Fed.  341 ;  Kulin  v.  ^lorri- 
son.  75  Fed.  81 ;  Deciv  v.  Wliitman, 
96  Fed.  890. 

19 Black  V.   Scott,  9  Fed.   186. 

2  0Merrihew  v.  Fort,  98  Fed.  899. 

iMcBee  v.  Marietta,  etc.  R.  R.  48 
Fed.  243. 

2De  Hierapolis  v.  Lawrence,  99 
Fed.  321. 

sGreelev  v.  Lowe.  155  U.  S.  73,  39 
L.  ed.  75,'  15  Sup.  Ct.  Rep.  27. 

4  Spencer  v.  Stock  Yds.  Co.  56  Fed. 
741. 

nYork.  etc.  Co.  v.  Abbot,  131  Fed. 
980. 

TPollitz  v.  Farmers'  L.  &  T.  Co.  39 
Fed.  707. 


800 


Procedure] 


SERVICE    BY    PUBLICATION,    ETC. 


§  856   [c] 


to  restrain  interference  with  fishery  rights  at  a  certain  place  is  to  enforce 
a  claim  to  property;*  as  also  a  suit  to  compel  the  transfer  of  corporate 
stock  on  the  company's  books,9  or  to  enforce  a  claim  to  a  specific  certificate 
of  stock  within  the  district. lo  So  a  suit  to  determine  adverse  claims  to 
land  and  annul  a  judicial  sale  is  within  the  section.n  It  would  seem  clear 
that  a  contract  to  convey  land  creates  an  equitable  claim  to  it  within 
this  clause,  but  the  difficulty  is  that  where  a  party  seeks  specific  per- 
formance the  decree  must  usually  act  in  personam,  and  that  is  not  possible 
where  the  jurisdiction  over  the  vendor  defendant  is  obtained  only  by  pub- 
lication. Where  the  local  law  provides  that  in  the  absence  of  such  vendor, 
the  court  may  maKe  a  deed  or  that  its  decree  shall  be  the  equivalent,!  3 
this  section  has  been  held  to  o'.iviate  the  difficulty  and  service  by  publi- 
cation has  been  made.i*  On  the  other  hand  jurisdiction  has  been  disclaimed 
in  the  absence  of  such  local  statute.  A  suit  to  cancel  a  note  within  a 
district  for  fraud  is  held  one  to  enforce  an  equitable  claim  to  property 
within  the  section. is 

A  stockholder's  suit  to  set  aside  a  sale  of  stock  made  by  the 
corporation  to  directors  is  not  to  enforce  a  lien  or  claim.is  The 
same  has  been  held  as  to  a  suit  by  heirs  to  reach  assets  of  an  es- 
state  in  the  executor's  hands ;  1 9  and  as  to  a  suit  for  an  accounting  of 
lumber  taken  from  demised  premises  and  for  damages; 20  and  a  suit  to 
establish  title  to  a  patent  right  ;i  or  for  infringement  of  a  patent2  or  to 
remove  corporate  shares  not  shown  to  be  within  the  district. 3  The 
fact  that  the  property  on  which  the  lien  exists  is  in  the  custody  of  a  State 
court  by  prior  suit,  does  not  prevent  the  Federal  court  from  taking  juris- 
diction and  serving  by  publication  for  the  purpose  of  adjudicating  the 
claim. 4  There  is  no  jurisdiction  of  a  suit  as  to  property  within  a  district 
where  the  decision  on  the  merits  might  be  such  that  it  could  not  be  made 
effective  without  personal  judgment  or  decree  against  the  defendant.5 


^United  States  v.  Winans,  73  Fed. 
73,  76. 

9Jewett  V.  Bradford  S.  Bank,  45 
Fed.  801 ;  Jellenik  v.  Huron  Cop.  Min. 
Co.  177  U.  S.  1,  44  L.  ed.  647,  20  Sup. 
Ct.  E,ep.  559.  Stock  of  a  domestic 
corporation  has  been  held  to  have  a 
situs  therein  under  this  section: 
Jones  V.  Gould,  141  Fed.  698. 

loRvan  V.  Seabord,  etc.  By.  83  Fed. 
889;  Jones  v.  Gould,  141  Fed.  098. 

11  Hatch  V.  Ferguson,  57  Fed.  966. 

isThis  the  State  may  validly  do; 
Hart  V.  Samson,  110  U.  S.  151,  28  L. 
ed.  101,  3  Sup.  Ct.  Rep.  586 ;  United 
States  V.  Southern  P.  Co.  63  Fed. 
485. 

^Single  V.  Scott  P.  R.  Co.  55  Fed. 
.  553  and  see  Porter  L.  &  W.  Co.  v. 
Baskin,  43  Fed.  3"28.  The  proceed- 
ing   is    then    substantially    in    rem: 


Bos  well  V.  Otis,  9  How.  330.  13  L. 
ed.  165:  Arndt  v.  Griggs,  134  U.  S. 
310,  33  L.  ed.  918,  10  Sup.  Ct.  Rep. 
557.  See  discussion  infra  note  [  ]. 
Municipal  Ins.  Co.  v.  Gardiner,  62 
Fed.  9.54. 

i5Manning  v.  Berdan,  132  Fed.  382. 

isLengel  v.  American  S.  Co.  110 
Fed.  22. 

i&Fayerweather  v.  Ritch,  89  Fed. 
385. 

2  0Elli3   V.   Reynolds,   35   Fed.   394. 

iNon  Magnetic  Watch  Co.  v.  Assoc. 
44  Fed.  6. 

2Webster  Loom  Co.  v.  Short,  10  0. 
G.   1019.  Fed.  Cas.  No.   17.343. 

sMcKane  v.  Burke,  132  Fed.  688. 

4 Wheelwright  v.  St.  Louis,  etc.  Co. 
50  Fed.  709. 

5York,  etc.  Bank  v.  Abbot,  139 
Fed.  988. 


Fed.  Proc. — 51. 


801 


§  S5G   [d]  WRITS   AND    PROCESS.  [Code  Fed. 

[d]  Suits  to  remove  encumbrance,  lien  or  cloud. 

A  suit  to  cancel  a  deed  as  a  cloud  upon  complainants  title  comes s  within 
this  clause; 9  as  also  any  other  suit  to  remove  a  cloud  from  the  title  to 
lands.  10  A  widow's  suit  to  set  aside  a  release  of  interest  in  a  husband's  es- 
tate has  been  held  a  suit  to  remove  a  cloud. n  A  trust  deed  and  chattel 
mortgage  in  favor  of  certain  corporate  creditors  create  a  lien  or  encum- 
brance in  their  favor,  and  to  the  detriment  of  other  creditors  entitled  to 
have  the  corporate  assets  dealt  with  as  a  trust  fund  for  the  benefit  of 
all,  so  that  suit  by  such  general  creditors  to  set  them  aside  is  to  re- 
move an  encumbrance  within  this  section.  12  Opinion  has  differed  at  cir- 
cuit, as  to  the  propriety  of  entertaining  jurisdiction  and  permitting  serv- 
ice by  publication  in  suits  to  cancel  a  mortgage  as  a  cloud  on  title,i3  and 
in  the  modern  statutory  suits  to  quiet  title,  i*  The  doubt  seems  to  result 
from  the  difficulty  in  granting  adequate  relief  without  a  decree  that  would 
operate  in  personam. is 

[e]  Effect  of  inability  to  decree  in  personam. 

Equity  usually  proceeds  in  personam  and  not  in  rem.i7  But  a  decree 
against  a  person  served  only  by  publication  or  beyond  the  district  can  only 
operate  in  rem;  and  this  practical  obstacle  to  the  granting  of  effective  re- 
lief has  occasionally  been  made  the  ground  for  declining  jurisdiction  in 
cases  apparently  within  the  terms  of  §  8  of  the  act  of  1875.  Thus  a  bill 
to  cancel  a  mortgage  as  a  cloud  on  title,  or  to  quiet  title, is  or  to  compel 
specific  performance  of  a  contract  to  convey  1 9  would  seem  clearly  within 
the  jurisdiction  conferred.  But  if  there  be  mortgage  notes  negotiable  in 
character  in  possession  of  a  defendant  outside  the  district; 20  or  if  the  ab- 
sent defendant  against  whom  title  should  be  quieted  has  the  legal  title  and 
should  conovey,i  or  if  the  vendor  who  should  make  deed  as  agreed  is  be- 
yond the  reach  of  process,2  it  is  important  to  inquire  what  the  court  shall 
do,  and  whether  it  is  powerless  to  do  anything.  It  seems  to  be  settled 
that  the  States  may  meet  such  a  difficulty  so  far   as  the  title  to  State 

sCowell  V.  City  W.  S.  Co.  96  Fed.  Fed.  770,  sustaining  the  jurisdiction. 

769.   But  it  seems  the  mortgage  notes  Contra,  Beach  v.  Mosgrove,   16  Fed. 

must  be  within  the   district.     Beach  307. 

V.  ]\Iosgrove,  16  Fed.  307.  i^See  United  States  v.  Southern  P. 

sEvans  v.  Charles  Scribner's  Sons,  Co.  63  Fed.  486,  sustaining  the  juris- 

58  Fed.  303;  Morrison  v.  Marker,  93  diction.     Contra  Clark  v.  Hammett, 

Fed.  602.  27  Fed.  340. 

lODick  V.  Foraker,  155  U.  S.  414,  isJnfra,  note  [e]. 

39  L.  ed.  204,   15  Sup.  Ct.  Rep.  127.  iTHart  v.   Samson,  110  U.  S.  151, 

iiCastello  V.  Castello,  14  Fed.  207.  28  L.  ed.  102,  3  Sup.  Ct.  Rep.  586. 

i2Mellen  v.  Moline,  M.  I.  Works,  isSee  cases  supra,  not«  [d]. 

131  U.  S.  352,  3.3  L.  ed.  183,  9  Sup.  i9See  cases  supra,  note  [c]. 

Ct.  Rep.  781.     See  also  Lancaster  v.  20 As  in  Beach  v.  Mosgrove,  16  Fed. 

Asheville   Ry.    Co.    90   Fed.    132.      It  307. 

might  also  be  held  that  an  ordinary  iSee   Hart   v.    Samson,    110  U.    S. 

creditors  bill  against  individual  debt-  151,  28  L.  ed.  102,  3  Sup.  Ct.  Rep.  580. 

ors  would  be  to  enforce  an  equitable  2 See  Municipal  Ins.  Co.  v.  Gardi- 

claim  to  property.  ner,  62  Fed.  954. 

isSee  Cowell  v.  City  W.  S.  Co.  96 

802 


Procedure]  SERVICE   BY   PUBLICATION,    ETC.  §   856   [f] 

lands  is  concerned  by  empowering  their  courts  to  direct  a  conveyance  to 
be  made  for  such  absent  party,3  or  by  enacting  that  the  court's  decree 
shall  stand  in  lieu  thereof, *  or  in  some  other  way.  "A  State  may  provide 
by  statute  that  the  title  to  real  estate  within  its  limits  shall  be  settled 
and  determined  by  a  suit  in  which  the  defendant,  being  a  nonresident,  is 
brought  into  court  by  publication."5  But  what  of  the  power  of  Federal 
courts  of  equity?  It  is  said  that  such  State  statutory  provisions  come 
within  the  rule  whereby  the  Federal  courts  administer  an  enlarged  equitable 
remedy  created  by  State  law, 7  and  that  if  there  be  a  State  law  declaring 
that  the  decree  stand  in  lieu  of  a  conveyance,  the  Federal  court  should 
take  the  jurisdiction  granted  by  the  act  of  1875  over  a  suit  for  specific 
performance  against  an  absent  defendant. 8  If  that  conclusion  be  correct, 
then  the  propriety  of  the  Federal  courts  entertaining  suits  against  absent 
defendants  for  cancellation,  or  specific  performance  and  the  like,  depends 
upon  the  existence  of  some  State  law  which  would  enable  them  to  decree 
effectively. 

Undoubtedly  Congress  has  power  to  provide  for  the  enforcement  of  the 
decree's  of  Federal  courts  without  reference  to  or  regard  for  the  laws  of 
the  various  States. lo  it  has  made  State  laws  the  measure  of  the  power 
of  Federal  courts  to  execute  their  common-law  judgments. n  But  it  has 
never  declared  that  their  decrees  in  equity  shall  be  enforceable  only  a3 
State  laws  may  direct.  It  is  true  that  Federal  courts  in  equity  are  bound 
to  respect  the  substantive  State  law  enacted  within  the  proper  scope  of  a 
State's  law  making  powers,  and  hence  to  administer  an  enlargement  of 
equitable  rights  and  remedies,  such  as  the  modern  suit  to  quiet  title, 12 
but  the  question  still  arises  whether  the  manner  in  which  a  Federal  equity 
decree  is  to  be  enforced  is  not  a  mere  mode  of  procedure  and  entirely  out- 
side of  that  rule.  It  might  plausibly  be  argued  that,  as  the  first  portion 
of  the  above  section  gives  the  Federal  court  jurisdiction  of  a  suit  for  can- 
cellation of  a  mortgage  or  deed,  the  further  direction  to  the  court  "to 
entertain  jurisdiction  and  proceed  to  the  hearing  and  adjudication  of  such 
|8uit  in  the  same  manner  as  if  such  absent  defendant  has  been  served  with 
process  within  the  said  district"  sufficiently  empowers  it  to  make  a  decree 
which  would  be  final  and  effective  so  far  as  the  land  itself  is  concerned. 

[f]     Property  within  the  district. 

It  has  recently  been  settled  that  corporate  stock  in  a  domestic  concern, 
declared  by  the  local  law  to  be  personal  property  transferrable  only  on  the 
books  of  the  company,  is  personal  property  within  the  district  where 
such  corporation  has  its  home  office,  regardless  of  the  situs  of  any  certif- 
icates of  stock  or  of  other  stock  transfer  agencies;   and  that  jurisdiction. 

3Hart    v.   Sansom,    110   U.    S.    151,  "See   ante.   §   10    [aa]. 

28  L.  ed.   102.  3  Sup.  Ct.  Rep.  586:  sSingle  v.  Scott  P.  Co.  55  Fed.  557. 

.•\rndt   V.   Griggs,   134   U.    S.   386.   33  lOAnte.  §   79<). 

L.   ed.   918,   10   Sup.   Ct.  Rep.   557.  nR.  S.  §  914.  post  §  900. 

4Sinsfle  v.  Scott  P.  Co.  55  Fed.  553.  izHolland    v.    Challen.    110    V.    S. 

5Arndt  v.   Griggs,   134  U.   S.   316,  15,  28  L.   ed.   52,    3    Sup.    Ct.    Rep. 

10  Sup.  Ct.  Rep.  557,  33  L.  ed.  918.  495.     Ante,  §  10  [aa]. 

803 


§  856   [g]  WRITS    AND    PROCESS.  [Code   Fed. 

of  a  suit  to  prevent  a  transfer  of  the  shares  of  certain  stockholders  is 
sustainable  upon  service  by  publication.! 5  At  circuit,  jurisdiction  has  been 
upheld  where  a  claim  was  sought  to  be  enforced  against  certain  stock 
and  the  certificate  therefor  was  in  the  custody  of  the  corporation 
within  the  district. is  The  franchise,  good  will,  name  and  circulation  of  a 
newspaper  are  not  specific  articles  of  personal  property  having  a  situs 
within  a  district  under  this  provision. i''  A  stock  holders  suit  to  set  aside 
transfer  of  patents  and  corporate  property  is  not  sustainable  where  neither 
species  of  property  was  within  the  district. is  It  has  been  suggested  that 
in  order  to  bring  a  suit  for  cancellation  of  a  mortgage  as  a  cloud,  the 
mortgage  notes   as   well  as  the   property  should  be   within  the  district.ia 

[g]     Defendant  must  not  be  inhabitant  nor  found  in  district. 

The  District  of  Columbia  has  been  treated  as  a  non-inhabitant  de- 
fendant under  this  clause. 2  The  question  when  a  corporation  or  other 
person  is  deemed  "found"  within  a  district  has  already  been  considered 
elsewhere.  3  If  a  corporation  has  an  agent  and  place  of  business  in  the 
district  and  is  there  "found,"  it  cannot  be  served  by  publication.* 

[h]     Service  and  publication  of  warning  order — procedure. 

The  order  to  appear  and  plead  specified  in  this  provision  is  sometimes 
called  a  "warning  order."6  It  is  necessary  that  the  procedure  required  by 
the  statute  be  strictly  complied  with."  Service  of  the  ordinary  process 
without  the  warning  order  is  insufficient  to  give  jurisdiction. 8  The  act 
recognizes  the  superiority  of  personal  service  over  publication  and  re- 
quires that  there  be  personal  service  "if  practicable." 9  Hence  before  an 
order  for  publication  is  made,  proof  should  be  submitted  to  the  court  satis- 
fying him  that  after  reasonably  diligent  eflfort  the  complainant  is  unable 
to  ascertain  the  whereabouts  of  the  absent  defendants  so  as  to  permit  of 
personal  service. 10  This  proof  may  be  in  the  form  of  affidavits  of  coimsel 
and  party  stating  facts  and  not  conclusions.!  1  Publication  was  refused  in 
one  case  wliere  the   allegations   were  vague  and   the   showing  of  diligence 

!5Jellenik    v.    Huron    Copper    Min.  4  Spencer  v.  Kansas  City  Stock  Yds. 

Co.  177  U.  S.  1,  44  L.  ed.  (351,  20  Sup.  5G  Fed.  741. 

Ct.    Rep.    559.     And    see    Jewett    v.  eUnited  States  v.  American  L.  Co. 

Bradford    Sav.    Bank,    45    Fed.    801.  80  Fed.  309. 

Contra,  see  Kilgour  v.  New  O.  G.  Co.  ^Bracken  v.  Union  P.  Ry.  50  Fe  1. 

2  Woods,  144,  Fed.  Cas.  No.  7,764.  447,  5   C.   C.  A.   548.     Sec  Ellsworth 

i6Rvan   V.    Seabord,   etc.   R.   R.   83  T.    Co.   v.   Parramore,   108    Fed.   90(5, 

Fed.  889.  IS  C.  C.  A.  132. 

iTLawrence  v.  Times  P.  Co.  90  Fed.  ^United  States  v.  American  L.  Co. 

24.  80   Fed.  309. 

isEldred  v.  American  P.  C.  Co.  105  nBronson   v.   Keokuk,   2   Dill.    498, 

Fed.  455,  45  C.  C.  A.  1.  Fed.  Cas.  No.  1,028. 

!9Beach  v.  Mosgrove,  16  Fed.  307.  lOBronson  v.  Keokuk,  2  Dill.  498, 

2Hay     V.     Alexandria     R.     R.     4  Fed.  Cas.  No.   1,928. 

Hughes,  331,  Fed.  Cas.  No.  6,254a.  nBronson  v.  Keokulc,  2  Dill.  498, 

3 Ante,  §  402.  Fed.  Cas.  No.  1,928. 

804 


Procedure]  SERVICE   WHEN   MARSHAL   IS   PARTY  §   857 

inadequate.! 2  It  is  not  necessary  that  the  subpoena  issue  in  the  district 
and  be  returned  "not  found."i3  If  the  order  for  publication  finds  the  fact 
of  non-residence  in  general  terms  it  is  not  assailable  collaterally.! ■» 

In  an  opinion  rendered  while  R.  S.  §  738  was  in  force  but  which  is 
still  applicable,  Judge  Dillon  declared  that  the  proper  practice  is  to  aver 
the  residence  and  citizenship  of  all  defendants  to  let  the  subpoena  issue 
against  all;  let  the  marshal  return  "not  found"  as  to  those  outside  the 
district;  then  if  they  do  not  voluntarily  appear,  to  apply  to  the  court  for 
the  warning  order,  making  the  necessary  affidavits  as  to  non-residence,  etc. 
If  the  affidavit  shows  where;  the  parties  reside,  the  court  may  direct  the 
marshal  there  to  serve  them,  or  p'^'rhaps  make  a  special  order  directing  or 
authorizing  service  by  some  other  officer.  If  it  satisfactorily  appears  that 
the  residence  of  some  or  all  cannot  be  ascertained  an  order  for  publication 
may  then  be  made.  "The  practice  under  the  act.'"  he  observed,  "should  be 
such  as  to  secure  personal  service  in  all  cases  whore  the  residence  of  the 
absent  defendant  is  known  or  can  be  ascertained;  and  to  substitute  or  re- 
sort to  constructive  service  by  publication  only  where  the  better  mode  is 
not  practicable  within  a  reasonable  time,  and  by  the  exercise  of  reasonable 
diligence."!  7 

[i]     Decree  can  affect  only  property  within  district. 

If  an  absent  defendant  appears,  personal  judgment  can  be  rendered 
against  him.i  Otherwise  the  decree  can  only  operate  in  rem,  and  against 
the  property  within  the  district 2  or  within  that  and  an  adjoining  district 
in  the  same  State.  This  is  in  accordance  with  well-settled  principles  of 
law.3  Inability  to  decree  in  personam  is  sometimes  a  serious  obstacle 
to  adequate  relief  in  equity  cases  and  has  been  deemed  ground  for  refusing 
jurisdiction."* 

[j]     Reopening  judgment  within  a  year. 

It  is  reversible  error  to  refuse  to  reopen  a  decree  obtained  on  service 
by  publication,  within  that  time. 6  The  entering  of  an  appearance  within 
a  year  means  a  general  appearance,  hence  a  special  appearance  and  filing 
of  motion  and  demurrer  for  want  of  jurisdiction,  will  not  give  jurisdiction 
over  the  person  of  a  nonresident  defendant." 

§  857.     Service  of  process  when  marshal  is  party.  , 

When  the  marshal  or  his  deputy  is  a  party  in  any  caii.se,  the  writs 

i2Batt  v.  Proctor,  45  Fed.  515.  sPennover  v.    Neft".    flo    U.    S.    714, 

isForsvth   V.   Pierson.   9  Fed.   803,  24    L.    ed.    565;     Swan,    etc.    Co.    v. 

11  Biss.  133.  Frank,  148  U.  S.  603,  37  L.  ed.  577, 

inVoods  V.  Woodson,  100  Fed.  515,  13  Sup.  Ct.  Rep.  fifll. 

40  C.  C.  A.  525.  ■iSupra,  note  [e]. 

!"Bronson  v.  Keokuk,  2  Dill.  4!>8,  sAmerean  F.  L.  ]\I.  Co.  v.  Thomas, 

Fed.   Pas.  Xo.   1,028.  71  Fed.  782,  18  C.  C.  A.  .327. 

!  White  V.  Ewing,  69  Fed.  451,  16  t York,  etc.  Bank  v.  Abbot,  139  Fed. 

C.  C.  A.  2!)6.  9'90. 

2lngersoll  v.  Coram,  136  Fed.  690. 

805 


§   858  WRITS  AND  PROCESS.  [Code  Fed. 

and  precepts  therein  shall  be  directed  to  such  disinterested  person  as 
the  court  or  any  justice  or  judge  thereof  may  appoint,  and  the  per- 
son so  appointed  may  execute  and  return  them. 
R.  S.  §  922,  U.  S.  Comp.  Stat.  1901,  p.  G8G. 

This  provision  was  originally  §  28  of  the  judiciary  act  of  1789.10  The 
general  rule  in  the  Federal  courts  is  that  process  must  be  served  by  the 
marshal  and  cannot  be  served  by  private  persons. n  The  marshal  must 
serve  process  when  suit  is  in  forma  pauperis  and  without  fee. 12  The  ad- 
miralty rules  provide  for  service  of  process  by  some  discreet  and  dis- 
interested person  when  the  marshal  is  interested.is  The  equity  rulea 
provide  for  service  by  the  marshal  or  a  special  appointee  of  the  court.  1 4 
The  object  of  this  provision,  it  is  said,  is  to  prevent  the  marshal  or  his 
deputy  by  making  false  return  in  a  case  against  them,  from  depriving  the 
adverse  party  of  his  day  in  court. 15  Failure  to  have  process  against  a 
marshal  or  his  deputy  served  by  some  special  appointee,  may  be  waived 
by  an  appearance  which  can  be  construed  as  a  submission  to  the  court's 
jarisdiction,i6  though  not  by  an  appearance  strictly  for  the  purpose  of  in- 
insisting  upon  the  illegality.  1 7  So  service  by  a  private  person  where  the 
marshal  is  not  interested,  may  be  cured  by  appearance. is  It  has  been 
said  that  this  section  is  not  clearly  applicable  to  contempt  proceedings 
against  a  marshal  so  as  to  authorize  process  against  the  marshal  to 
be  directed  to  some  one  else.  1 9 

§  858.     Service  of  process  in  suit  against  a  State. 

When  process  at  common  law,  or  in  equity,  shall  issue  against  a 
State,  the  same  shall  be  served  on  the  Governor,  or  chief  executive 
magistrate  and  Attorney  General,  of  such  State. 
Supreme  Court  rule  5,  part  2. 

This  rule  was  originally  promulgated  August  12,  1796.2  The  jurisdiction 
of  the  Supreme  Court  in  suits  against  States  is  elsewhere  considered.3 
The  process  should  be  directed  to  the  State.*     Prior  to  the  auoption  of  this 

loAct   September   24,    1789,   c.    70,  2  L.  ed.  510;  Barnes  v.  Western  U.  T. 

§   28,   1   Stat.  87.  Co.  120  Fed.  550. 

iiPlatt  V.   Manning,  34  Fed.  817;  i^Harkness  v.  Hyde,  98  U.  S.  476, 

Deacon   v.   Sew.   Mach.   Co.    14   Rep.  25  L.  ed.  237. 

43,    Fed.    Cas.    No.    3,694a;     Schwa-  sPlatt  v.  Manning,  34  Fed.  817. 

backer   v.    Reilly,   2   Dill.   127,    Fed.  1 9  Ex  parte  Benedict,  4  West  L.  M. 

Cas.  No.  12,501.     ^nte,  §  .  449,  Fed.  Cas.  No.  1,292. 

12 Ante,   §   478.  2See  3  Dall.  320,  3  Pet.  17. 

isPost,  §   1202.  3 Ante,  §  2  [  ]. 

14 Post,  §  973.  4 Florida  v.  Georgia,  11  How.  293, 

isBarnes  v.  Western  U.  T.  Co.  120  13  L.  ed.  702;  Rhode  Island  v.  Mass- 
Fed.  550.  aeluisetts,  7  Pet.  651,  8  L.  ed.  816. 

l6Knox  V.  Summers,  3  Cranch,  496, 

800 


Procedure]  APPEARANCE    AND    EFFECT    THEREOF  §  8G0 

rule,  service  upon  the  Attorney  General  and  Governor  was   declared  suf- 
ficient.5     Service  merely  on  one  of  those  officials  is  insufficient.^ 

§  859.     Service  on  government  in  partition  suits. 

When  such  suit  [i.  e.  suit  for  partition  of  lands  in  which  United 
States  are  part  owners]  is  brought  by  any  person  owning  an  undi- 
vided interest  in  such  land,  other  than  the  United  States,  against 
the  United  States  alone  or  against  the  United  States  and  any  other 
of  such  owners,  service  shall  be  made  on  the  United  States  by  caus- 
ing a  copy  of  the  bill  filed  to  be  served  upon  the  district  attorney 
of  the  district  wherein  the  suit  is  brought,  and  by  mailing  a  copy  of 
the  same  by  registered  letter  to  the  Attorney  General  of  the  United 
States ;  and  the  complainant  in  such  bill  shall  file  with  the  clerk 
of  the  court  in  which  such  bill  is  filed  an  affidavit  of  such  service  and 
of  the  mailing  of  such  letter. 

Part  of  §  2,  act  May  17,  1898,  c.  339,  30  Stat.  416,  U.  S.  Comp.  Stat. 
1901,  p.  516. 

The  portion  of  the  statute  giving  jurisdiction  of  such  suits  to  the  circuit 
courts  is  given  elsewhere. s 

§  860.  Appearance  as  cure  for  defective  service  or  want  thereof. 
In  deciding  whether  an  appearance  is  general  or  special,  its  sub- 
stantial purpose  is  considered,  as  well  as  the  name  applied  to  it 
by  the  party  appearing ;  and  the  State  law  and  practice  will  not  al- 
ways be  allowed  to  determine  the  question  even  in  common-law 
causes.  If  an  appearance  is  in  fact  general,  it  waives  a  want  of, 
or  defective  compliance  with  the  various  prerequisites  to  the 
exercise  of  jurisdiction  over  a  party  defendant,  so  far  as  the  same 
are  for  defendants  benefit  and  protection,  and  do  not  constitute  lim- 
itations upon  the  power  of  the  court  itself.  Hence  defective  service, 
or  an  entire  failure  to  serve,  is  cured  by  general  appearance,  though 
that  cannot  give  jurisdiction  if  there  is  a  defect  of  jurisdictional 
power  in  the  court.  The  time  and  mode  of  appearance  in  equity 
cases^*^  and  on  appeal, ^^  are  elsewhere  considered. 
Author's  section. 

BChisholm  v.  Georgia.  2  Dall.  480,        6New  Jersey  v.  New  York,  3  Pet. 
1  L.  ed.  440.     And  see  Rhode  Island    461,  7  L.  ed.  741. 
V.   Massachusetts,   12   Pet.   761,   9   L.         8 Ante,  §   141. 
ed.  1275;  New  Jersey  v.  New  York,  3        loPost.  §  978. 
Pet.  466,  7  L.  ed.  743.  uPost,  §  197S. 

807 


§  SCO  [a] 


WRITS  AND  PROCESS. 


[Cotle  Fed. 


[a]     General  and  special  appearance. 

The  making  of  formal  appearance  by  praecipe  to  the  clerk  has  largely 
fallen  into  desuetude. 12  In  general  the  filing  of  an  answer,  or  demurrer, 
or  plea,  constitutes  an  appearance; is  so  also  does  the  obtaining  from  the 
plaintiff  want  of  an  extension  of  time  to  plead.i*  But  an  admission  of 
service  of  process  is  not. is  Joining  in  a  motion  to  set  aside  servicei6  has 
been  held  not  an  appearance ;  as  also  the  assumption  of  the  burden  of  the  de- 
fense of  the  nominal  defendant.  1 7  While  by  general  appearance,  a  de- 
defendant  appears  for  all  puqjoses  of  the  suit,  a  special  appearance  is  for 
the  purpose  of  raising  an  objection  to  the  courts  power  to  proceed,  based 
upon  some  defect  in  the  service  of  process  or  mode  of  acquiring  jurisdiction; 
and  a  party  will  not  be  permitted  to  make  a  special  appearance  for  the 
purjDose  of  inteqjo.'sing  certain  defenses  on  the  merits. is  It  may  not  beiuii- 
versally  true  that  appearance  will  be  treated  as  general  unless  specifically 
declared  by  the  party  to  be  special. 19  Yet  such  is  the  general  rule,  and  it  i^^ 
the  proper  as  well  as  the  safer  practice  for  one  desiring  to  appear  specially 
to  so  declare  in  all  cases. 20  Certainly  he  must  in  some  manner  manifest 
an  intention  to  appear  specially  or  he  will  be  rigidly  held  to  have  ap- 
peared generally.  1  Furthermore  an  appearance  declared  to  be  special 
may  amount  in  law  to  a  general  appearance,  where  the  party  takes  any 
step  that  can  only  be  taken  by  such  appearance. 2  Thus  an  appearance  by 
motion  to  dismiss  becomes  general,  where  the  party  sets  up  want  of 
equity  in  the  bill  as  an  additional  ground  for  dismissal. 3  If,  however, 
after   overruling   of   the   special   objections   to   the   jurisdiction,   the   party 


i2Romaine  v.  Union  Ins.  Co.  28 
Fed.  G2.5.  But  see  equity  rule  17, 
post  §  9'75,  Supreme  Court  rule  9, 
cl.  3.  post,  §  1978. 

isFreneh  v.  Hay,  22  Wall.  245,  22 
L.  ed.  854;  Eldred  v.  Bank,  17  Wall. 
651.   21   L.   ed.   685. 

KHupfeld  V.  Automaton  Co.  66 
Fed.  788;  Briggs  v.  Stroud.  58  Fed. 
717. 

isButtenvorth  v.  Hill.  114  U.  S. 
132.  133,  20  L.  ed.  119,  5  Sup.  Ct. 
Eep.  796. 

leBeck  v.  Wacker,  76  Fed.  10,  22 
C.  C.  A.  11. 

iTBidwell  V.  Toledo,  etc.  Ry.  72 
Fed.  10. 

isNat.  F.  Co.  V.  Moline  M.  Works, 
IS  Fed.  864. 

isBut  an  appea.rance  to  petition 
for  removal  is  not  general  though 
not  expressly  declared  to  be  special : 
Wabash,  etc.  Rv.  v.  Brow,  164  IT. 
S.  271,  41  L.  ed.  431,  17  Sup.  Ct. 
Rep.  126.  See  also  Herndon  v.  Ridg- 
way,  17  How.  424.  15  L.  ed.  100. 
Where  motion  to  dismiss  and  de- 
murrer to  jurisdiction  were  treated 


as  special  appearance ;  Dorr  v.  Gib- 
boney,  3  Hughes,  382,  Fed.  Cas.  No. 
4,006,  where  motion  to  quash  was 
made  aftp<r  judgment  rendered  and 
it  was  lield  not  such  an  appearance 
as  would  impart  validity  to  the 
judgment.  And  see  First  Nat.  Bank 
v.  Cunn'ingham,  48  Fed.  517. 

20 See  United  States  v.  American 
B.  T.  Co.  29  Fed.  17;  Goldey  v.  Morn 
ing  News,  156  U.  S.  525.  526,  39  L. 
edT  520,  15  Sup.  Ct.  Rep.  5.59;  Mc- 
Gillin  V.  Claflin,  52  Fed.  657  :  Hank- 
inson  v.  Page,  31  Fed.  184,  24  Blalchf. 
422. 

iRomaine  v.  Union  Ins.  Co.  28 
Fed.  638. 

2Romaine  v.  Union  Ins.  Co.  28 
Fed.  638:  Edgell  v.  Felder,  84  Fed. 
69,  28  C.  C.  A.  382 ;  Crawford  v.  Fos- 
ter, 84  Fed.  939,  28  C.  C.  A.  576; 
Modi  V.  Virginia,  etc.  Ins.  Co.  10 
Fed.  696.  4  Hughes,  61. 

3Jones  V.  Andrews.  10  Wall.  3.32, 
19  L.  ed.  935.  And  see  United  States 
V.  American  B.  Tel.  Co.  29  Fed.  17; 
Lowry  v.  Tile,  etc.   Co.  98  Fed.  817. 


SOS 


Procedure]  APPEARANCE    AND    EFFECT    THEREOF.  §   860    [a] 

then  raises  a  question  upon  the  merits,  that  is  not  a  waiver  of  his  original 
objection  to  the  jurisdiction. <  It  has  been  said  that  leave  to  appeav 
specially  should  first  be  obtained  from  the  court. 5  Parties  have  bcei. 
permitted  to  change  a  general  into  a  special  appearance,6  though  not  after 
the  close  of  the  term.'''  An  appearance  to  deny  jurisdiction  over  the  person 
must  be  confined  to  that  and  an  attack  on  the  jurisdiction  over  the 
subject  matter  as  well  has  been  held  a  general  appearance. «  Wliere  a 
special  appearance  is  withdrawn  by  leave  of  the  court,  the  case  is  left  as 
though  there  had  been  no  appearance  at  all.9  A  general  appearance  en- 
tered by  attorneys  although  unauthorized  has  been  held  ratified  by  fail- 
ure of  client  to  disclaim  within  four  months. lo  It  has  been  authoritatively 
decided  that  an  appearance  in  a  State  court  for  the  purpose  of  asking  a 
removal  is  not  a  general  appearance  such  as  could  waive  question  of  de- 
fective service. 13  This  is  as  true  where  the  appearance  to  petition  for  re- 
moval is  general  in  terms.i*  as  where  expressly  declared  to  be  special. 1 5 
Appearance  in  a  State  court  suit  commenced  by  foreign  attachment  and 
removal  to  the  Federal  court  constitutes  a  submission  to  the  court's 
jurisdiction.! 6  While  the  State  law  as  to  mode  of  appearance  and  ar, 
to  what  constitutes  a  special  appearance  is  in  general  the  guide  of  Fed- 
eral courts  in  action  at  law.i"  yet,  a  Texas  statute  declaring  that  every 
special  appearance  shall  be  treated  as  general,  although  not  invalid,is 
will  not  be  followed  by  the  Federal  courts  there  sitting,  because  the  con- 
formity   clause    does    not    contemplate  the  adoption  of  State  laws  which 

4Harkness  v.  Hvde.  98  U.   S.  479,  Ct.    Rep.    126:    Goldev    v.    Morning 

2o  L.   ed.   237:    Baltimore  &   0.   Rv.  Xews.  156  U.   S.  51-8,' 39  L.  ed.  517. 

v.   Freeman.   112   Fed.   237,  50  C.   C.  15  Sup.   Ct.  Rep.  559.     The  question 

A.  211 :   Mexican  C.  Rv.  v.  Pinknev,  had    been    variouslv    decided    at    cir- 

149  U.  S.  209.  37  L.  ed.  699,  13  Sup.  cuit.      See    Bentlif    v.    London,    etc. 

Ct.   Rep.   859;    So.   Pac.   Co.   v.   Den-  Co.  44  Fed.  667.  668,  and  cases  cited. 

ton.    146   U.    S.    206,    36  L.   ed.    944,  i4Wabash   W.   Rv.   v.    Brow,     164 

13   Sup.    Ct.   Rep.    46.     See   Eddv   v.  U.  S.  271,  279.  41  L.  ed.  431,  17  Sup. 

Lafavette.   49    Fed.  807.    1    C.   C.   A.  Ct.    Rep.    126;    Cadv    v.    Assoc.    Col. 

441,  163  U.  S.  464.  41  L.  ed.  229,  16  119  Fed.  423;  Peterson  v.  Morris,  98 

Sup.    Ct.    Rep.    1082.  Fed.  48. 

sRomaine    v.    Union    Ins.    Co.    28  isGoldev  v.  Morning  News,  156  U. 

Fed.   638.  S.    518,    39   L.   ed.   517,   15   Sup.    Ct. 

6But  see  Nat.  F.  Co.  v.  Moline  M.  Rep.   559. 

Works.  18  Fed.  864.     See  Hohorst  v.  lelrvine  v.  Lowr^%  14  Pet.  299.  10 

Hamburg  &  A.   P.    Co.  38   Fed.  273;  L.  ed.  462.    But  if  the  appearance  for 

Jenkins  v.  York   C.   I.   Co.   110   Fed.  removal   is   special  there   is  no   sub- 

807.  mission  of  defendant's  person  to  the 

'United   States  v.  Armejo,   131   U.  Federal    courts    jurisdiction,    and    it 

S.  LXXXII,  18  L.  ed.  247.  can  decree  only  against  the  property 

sMahr  v.  Union  Pacific  R.  R.  140  seized     on     the     state    attachment: 

Fed.   921.  Clark  v.  Wells,  203  U.  S.  171,  51   L. 

9Gra.ham  v.  Spencer.   14   Fed.  603.  ed.  — . 

lORayTUondville,   etc.    Co.   v.   Lum-  I'See  Lung  Chung  v.  Northern  P. 

l>er   Co!   140    Fed.    965.  R.  R.  10  Fed.  256. 

iiPike    V.    Gregory,    94    Fed.    373,  isYork  v.  Texas,  137  U.  S.  20.  34 

36   C.   C.   A.  299.  L.    ed.    604,    11    Sup.    Ct.    Rep.    10; 

isWabash,   W.   Rv.   v.   Brow,     164  KaufTman  v.  Wootters,  138  U.  S.  287, 

U.    S.    271,    41    L.   ed.    431,    17    Sup.  34  L.  ed.  902,  11   Sup.  Ct.  Rep.  298. 

809 


§   800   [bj 


WKITS   AND  PROCESS. 


rCode  Fed. 


really  constitute  a  regulation  of  their  jurisdiction.! 9  So,  the  question 
whether  an  appearance  in  a  State  court  for  the  purpose  of  asking  a  re- 
moval, was  general,  has  been  decided  by  the  Supreme  Court  without  regard 
to  the  local  statutes.20  in  so  far  as  a  jurisdictional  question  or  the  con- 
struction of  Federal  statutes  is  involved  in  such  an  inquiry  it  is  plain 
that  the  local  practice  is  of  small  moment. 

[b]     General  appearance  as  waiver  of  defective  service. 

If  an  appearance  is  merely  special,  it  does  not  constitute  a  submission 
to  the  court's  jurisdiction  or  waiver  of  defective  service.s  But  if  it  is  gen- 
eral, it  waives  any  defect  of  jurisdiction  which  relates  only  to  the  person. s 
It  waives  objection  to  the  manner  of  bringing  defendant  into  court,  but 
not  objections  affecting  the  power  of  the  court  over  person  or  subject 
matter. ■!■  Jurisdiction  may  be  acquired  by  voluntary  appearance  as  effectu- 
iil]y  as  by  proper  service.?  The  entering  of  an  appearance  is  an  admission 
of  due  and  effectual  service. 9  Obtaining  leave  to  withdraw  a  motion  to 
set  aside  service  and  for  time  to  answer  is  held  a  waiver  of  objection  to 
jurisdiction  of  person. 10  While  the  Federal  statutes  permit  suit  against 
a  person  only  in  the  district  where  an  inhabitant  is  found,ii  and  while 
process  can  in  general  only  be  served  within  the  district  where  issued,i2 
yet  these  regulations  are  not  in  the  nature  of  limitations  upon  the  powers 
of  the  court,  but  are  privileges  and  immunities  of  the  parties  themselves. 1 3 
It  is  well  settled  that  they  may  be  and  are  waived  by  a  general  appear- 
imce  in  an  action  brought  elsewhere  than  in  such  district. i*  But  theic 
is   no  waiver  in  such  a  case,   where,  a  demurrer  for   want   of  jurisdiction 


isMexican  C.  Rv.  v.  Pinlcnev,  140 
r.  S.  209,  37  L.  ed.  69'9,  13  Sup.  Ct. 
Rep.  859;  Galveston,  etc.  Ry.  v.  Gon- 
:',al6s,  151  U.  S.  499,  m  L.  ed.  248, 
14  Sup.  Ct.  Rep.  4C1. 

2oGoldey  v.  Morning  News,  156  U. 
S.  518,  39  L.  ed.  517,  15  Sup.  Ct. 
Rep.  So©. 

5Ex  parte  Shaw,  145  U.  S.  444, 
36  L.  ed.  768.  12  Sup.  Ct.  Rep.  935; 
Romaine  v.  Union  Ins.  Co.  28  Fed. 
626;  United  States  v.  American,  B. 
T.  Co.  29  Fed.  45:  Ellsworth  T.  Co. 
V.  Parramore,  108  Fed.  906,  48  C. 
C.   A.    132. 

eVoorhees  v.  Jacksou,  10  Pet.  473, 
9  L.  ed.  490;  Texas,  etc.  Rv.  v.  Cox, 
145  U.  S.  603.,  36  L.  ed.  832,  12  Sup. 
Ct.  Rep.  905. 

7Rhode  Island  v.  Massachusetts, 
12  Pet.  719',  9  L.  ed.  1233;  Creighton 
V.  Keirr,  20  Wall.  12.  22  L.  ed.  .309. 

sBowdoin  Coll.  v.  Merritt,  59  Fed. 
6;  Cooper  v.  Reynolds,  10  Wall.  316, 
19  L.  ed.  931. 

sLogan  v.  Patrick,  5  Cranch,  288, 
3  L.  ed.   103;  Toland  v.  Sprague,  12 


Pet.  331,  9  L.  ed.  1003;  Hill  v.  Men 
denhall,  21  Wall.  4.54,  22  L.  ed. 
616;  Henderson  v.  Carbondale,  etc. 
Co.  140  U.  S.  40,  35  L.  ed.  332,  11 
Sup.  Ct.  Pep.  691. 

lOLebensberger  v.  Seofield,  139  Fed. 
380,  (C.  C.  A.) 

11  Ante,  §  402. 

12 Ante,  §  853. 

isKendall  v.  United  States,  12  Pet. 
623,  9  L.  ed.  1181. 

i4Gracie  v.  Palmer,  8  Wheat.  700. 
5  L.  ed.  719;  Tavler  v.  Longwortb. 
14  Pet.  174,  10  L.  ed.  405;  Shield^ 
v.  Thomas,  18  How.  259,  15  L.  erl. 
368;  In  re  Keasbev,  etc.  Co.  160  V. 
S.  229,  40  L.  ed.  402,  16  Sup.  Ct.  Rep. 
273;  Central  T.  Co.  v.  :McGeoTge. 
151  U.  S.  133.  38  L.  ed.  08.  14  Sup. 
Ct.  Rep.  2S6;  Southern  Exp.  Co.  v. 
Todd,  56  Fed.  104,  5  C.  C.  A.  432: 
Wahr  V.  I'nion  Pac.  R.  R.  140  Fed. 
921.  But  general  appearance  made  in 
Justifiable  ignorance  that  suit  was 
in  wrong  district  was  held  no  waiver 
in  Orow^i  C.  M.  v.  Turner,  82  Fed. 
337. 


810 


Procedure]  PROCESS    AGAINST    FOREIGN    MINISTER.  §  862 

being  on  file,  the  defendant  participates  in  the  taking  of  depositions.!'^ 
While  foreign  attachment  is  not  a  proper  mode  of  securing  jurisdiction 
in  the  Federal  courts,  yet  if  a  part}^  makes  general  appearance  in  a  case 
60  commenced,  he  waives  the  informality.i^  A  national  bank  waives  its 
exemption  from  suit  in  other  districts,  by  a  general  appearance. 1 7  Objec- 
tion to  the  regularity  of  proceedings  to  enforce  appearance  are  waived 
by  appearance  and  pleading  to  the  merits. is  If  a  subpoena  erroneously 
describes  a  defendant  his  appearance  without  objection  on  that  ground 
cures  the  defect. 1 9  General  appearance  and  pleading  to  the  merits  also 
cure  a  defect  arising  from  the  fact  that  service  was  fraudulently  procured; 20 
or  by  an  unauthorized  person.i  After  voluntary  appearance  and  answer 
a  party  cannot  object  to  the  regularity  of  the  order  making  him  party. 2 
WTiere  a  party  sued  by  process  of  foreign  attachment  in  a  State  court,  ap- 
pears and  removes  the  cause  to  the  Federal  court,  he  thereby  admits  its 
jurisdiction. 3  General  appearance  does  not  waive  a  lack  of  jurisdiction 
in  the  court  as  respects  the  subject  matter.'* 

§  861.  Process  against  foreign  ministers  and  their  domestics  void. 
Whenever  any  writ  or  process  is  sued  out  or  prosecuted  by  any 
person  in  any  court  of  the  United  States,  or  of  a  State,  or  by  any 
judge  or  justice,  whereby  the  person  of  any  public  minister  of  any 
foreign  prince  or  State,  authorized  and  received  as  such  by  the  Pres- 
ident, or  any  domestic  or  domestic  servant  of  any  such  minister,  is 
arrested  or  imprisoned,  or  his  goods  or  chattels  are  distrained,  seized, 
or  attached,  such  writ  or  process  shall  be  deemed  void. 
R.  S.  §  4063,  U.  S.  Comp.  Stat.  1901,  p.  2760. 

This  section  and  the  two  following  sections  were  carried  into  the  Revised 
Statutes  from  an  act  of  1790.7  The  exclusive  jurisdiction  over  proceedings 
against  ambassadors  and  other  public  ministers  is  vested  in  the  Supreme 
Court.  8 

§  862.  —  penalty  for  suing  out  and  executing  such  process. 

Whenever  any  writ  or  process  is  sued  out  in  violation  of  the  pre- 

isStonega,    etc.    Co.   v.   Louisville,  S.  98,  34  L.  ed.  608,  11  Sup.  Ct.  Rep. 

etc.  R.  R.  139  Fed.  271.  36. 

i6Fife  V.  Bohlen.  22  Fed.  878;  but  iPlatt  v.  Manning,  34  Fed.  817. 

see  Noves  v.  Canada,  30  Fed.  66.5.  zHenderson  v.  Carbondate,  etc.  Co. 

"Charlotte  F.  Xat.  Bank  v.  Mor-  140  U.  S.  40.  35  L.  ed.  332,  11  Sup. 

gan,  132  U.  S.  141,  33  L.  ed.  282,  10  Ct.  Rep.  691. 

Sup.  Ct.  Rep.  37.  sirwin  v.  Lowry,    14   Pet.   299,   10 

isKnox  V.  Summers,  3  Cranch,  498,  L.  ed.  462;  see  Purdy  v.  Wallace,  81 

2  L.  ed.  &10;  The  Merino,  9  Wheat.  Fed.  513. 

401,  6  L.  ed.  118.  ^Lackett  v.  Rumbaugh,  45  Fed.  23. 

i9Johnson    v.    Waters,    111    U.    S.  ^Act  Apri>  30,  1790,  c.  9,  §§  25-27, 

673,  28  L.  ed.  547,  4  Sup.   Ct.  Rep.  1   Stat.   117. 

619.  8 Ante,  §  35, 

20  Fitzgerald  v.  Fitzgerald,  137  U. 

811 


§   t>yj6  WRITS  AND  PROCESS.  [Code   Fed. 

ceding  section,  every  person  by  whom  the  same  is  obtained  or  pros- 
ecuted, whether  as  party  or  as  attorney  or  solicitor,  and  every  officer 
concerned  in  executing  it,  shall  be  deemed  a  violator  of  the  laws  of 
nations  and  a  disturber  of  the  public  repose,  and  shall  be  imprisoned 
for  not  more  than  three  years,  and  fined  at  the  discretion  of  the 
court. 

R.  S.  §  40G-4,  U.  S.  Comp.  Stat.  1901,  p.  2761. 

§  863.  —  when  process  may  be  issued  against  persons  in  service 
of  ministers. 

The  two  preceding  sections  shall  not  apply  to  any  case  where  the 
person  against  whom  the  process  is  issued  is  a  citizen  or  inhabitant 
of  the  United  States,  in  the  service  of  a  public  minister,  and  the  pro- 
cess is  founded  upon  a  debt  contracted  before  he  entered  upon  such 
service ;  nor  shall  the  preceding  section  apply  to  any  case  where  the 
person  against  whom  the  process  is  issued  is  a  domestic  servant  of 
a  public  minister,  unless  the  name  of  the  servant  has,  before  the 
issuing  thereof,  been  registered  in  the  Department  of  State,  and 
transmitted  by  the  Secretary  of  State  to  the  marshal  of  the  District 
of  Columbia,  who  shall  upon  receipt  thereof  post  the  same  in  some 
public  place,  in  his  office. 

R.  S.  §  4065,  U.  S.  Comp.  Stat.  1901,  p.  2761. 

§  864.     Issuance  of  prohibition  by  circuit  courts  of  appeals  in 
admiralty. 

A  writ  of  inhibition  may  be  awarded  by  this  court  on  motion  of 
the  appellant,  to  stay  proceedings  in  the  court  below,  when  cir- 
cumstances require. 

12tli  admiralty  rule  of  the  second  and  ninth  circuits. 


812 


CHAPTER  23. 

TIME  FOR  COMMENCEMENT  OF  ACTION  OR  PROSECUTION. 

§  869.  Cross  references. 

§  870.  Statutes  of  limitation  applicable  in  Federal  courts. 

§  871.  Limitations  of  actions  in  copyright  cases. 

§  872.  — in  actions   for  negligently  failing  to  prevent  conspiracy  against 

civil  rights. 

§  873.  — in  actions  upon  claims  against  United  States. 

§  874.  — earlier  statute — persons  under  disability. 

§  875.  Settlements  for  customs  duties  conclusive  after  one  year. 

§  876.  Limitation  of  suits   for  recovery  of  taxes  wrongfully  collected 

§  877.  — of  time  for  appeal  to  commissioner. 

§  878.  Limitation  of  actions  to  annul  land  patents. 

§  879.  — to  annual  patents  under  railway  or  wagon  road  grant. 

§  880.  Limitation  of  actions  for  lands  patented  to  Indians. 

§  881.  — of  actions  for  penalties  and  forfeitures  under  Federal  laws. 

§  882.  — of  actions  for  penalties  and  forfeitures   under  customs  revenue 

laws. 

§  883.  — of  forfeiture  proceedings  for  false  claims  against  United  States. 

§  884.  Time  for  indictment  for  capital  offenses. 

§  885.  — for  offenses  not  capital. 

§  886.  — exception  of  persons  tleeing  from  justice. 

§  887.  Exception  of  parties  beyond  reach  of  process  during  rebellion. 

§  888.  Time  for  prosecution  of  crimes  under  revenue  and  slave  laws. 

§  889.  — of  crimes  under  internal  revenue  laws. 

§  890.  — of  offense  of  seduction  of  female  passenger. 

§  891.  — of  prosecutions  for  violations  of  naturalization  laws. 

§  892.  — of  suits  against  carriers  under  Employers  Liability  Act  of  1906. 

§  86&.     Cross  references. 

Provisions  of  law  respecting  the  time  within  which  an  appeal 
must  be  taken  are  given  elsewhere;^  also  provisions  as  to  the  time 
for  taking  various  proceedings  in  bankruptcy.^  The  provision  as 
to  limitation  of  actions  in  a  marshal's  bond  is  contained  in  a  pre- 
ceding chapter.^ 

Author's  Section. 

iPost,  §§  1902,  et  seq. 
2Ante,  §§  2.3<j4.  2365. 
3 Ante,  §  631. 

813 


§   870  TIME   FOR   COMMENCEMENT  OF   ACTIONS.  [Code  Fed. 

§  870.     Statutes  of  limitation  applicable  in  Federal  courts. 

While  Congress  might  validly  have  prescribed  the  time  within 
which  all  actions  or  controversies  should  be  cognizable  in  Federal 
courts,  independently  of  the  State  laws,^  it  has  chosen  instead  to 
require  the  Federal  courts  to  apply  State  statutes  of  limitations 
in  common  law  causes  unless  some  Federal  statute  otherwise  re- 
quires in  a  particular  case.^  In  equity  the  Federal  courts  are  not 
strictly  bound  by  any  statutory  provisions  though  they  will  usually 
follow  the  analogy  of  the  statute  at  law.^  In  Federal  criminal 
prosecutions  and  in  suits  for  penalties  and  forfeitures  under  Fed- 
eral laws,  Congress  has  provided  the  period  within  which  proceed- 
ings must  be  taken. '^ 
Author's  section. 

§  871.     Limitations  of  actions  in  copyright  cases. 

No  action  shall  be  maintained  in  any  case  of  forfeiture  or  penaltv 
under  the  copyright  laws,  unless  the  same  is  commenced  within  two 
years  after  the  cause  of  action  has  arisen. 
R.  S.  §  4968,  U.  S.  Comp.  Stat.  1901,  p.  3416. 

This  provision  was  enacted  in  1 870.1  o  It  does  not  apply  to  an  equity 
suit  for  injunction  against  an  infringer,  and  for  damages,  but  only  to 
suits  for  penalty  or  forfeiture. n  But  the  damages  which  an  infringer  shall 
"forfeit  and  pay"  under  R.  S.  §  4964  come  within  this  section.i2  Every 
new  printing  for  sale  is  a  new  cause  of  action  within  the  meaning  of  a 
statute  of  limitations.!  3 

§  872.  —  in  actions  for  negligently  failing  to  prevent  conspiracy 
against  civil  rights. 
No  action  under  the  provisions  of  this  section  [giving  a  right  of 
action  to  the  injured  party,  against  one  who  having  knowledge  of  a 
conspiracy  against  civil  rights,  negligently  fails  to  prevent  same] 
shall  be  sustained  which  is  not  commenced  within  one  year  after 
the  cause  of  action  has  accrued. 

Part  of  R.  S.  §  1981,  U.  S.  Comp.  Stat.  1901,  p.l263. 
This  provision  is  from  the  civil  rights  act  of  1871.15 

4Ante,  §  799.  uPatterson  v.  J.  S.  OgHvie  Co.  119 

BAnte.  §  10  [m].  Fed.  451.  453. 

...•,„  r     T  i2Whpe]er  v.  Cobbev,  70  Fed.  487. 

6Ante,  §  10  [m].  ^3^^^^   ^    ^^^^^.    ^            ^g  Fed. 

7Post,  §§  881  to  890.  cas.  No.  11.642. 

lOAct  Julv  8.  1870,  c.  230,  16  Sta4;.  isAct  April  20,  1871,  c  22,  17 
215.  "  Stat.  15. 

814 


Procedure]  SUITS   AGAINST   UNITED    STATES.  §   874    [a] 

§  873.  —  in  actions  upon  claims  against  United  States. 

No  suit  against  the  government  of  the  United  States,  shall  be 
allowed  under  this  act  [the  general  statute  of  1887  giving  the 
Court  of  Claims  jurisdiction  of  various  classes  of  claims]  unless 
the  same  shall  have  been  brought  within  six  years  after  the  right 
accrued  for  which  the  claim  is  made. 

Part    of    §    1,    act    Mar.    3,    1887,   c.    359,   24    Stat.    505,    Act    July    1, 
1898,  c.  546,  §  3,  30  Stat.  597,  U.  S.  Comp.  Stat.  1901,  p.  753. 

This  provision  of  the  "Tucker"  act.  is  a  re-enactment  of  the  first  por- 
tion of  R.  S.  §  10691"  which  established  six  years  as  the  period  of  limitation. 
However  the  phraseology  is  different  and  so  far  as  that  alters  the  legal 
meaning  or  effect  of  R.  S.  §  1069  it  must  be  deemed  to  have  been  superseded 
by  the  above.is  But  the  last  portion  of  R.  S.  §  1069,  respecting  persons 
under  disability,  is  not  affected  or  repealed.   19 

§  874.  —  earlier  statute — persons  under  disability. 

Every  claim  against  the  United  States,  cognizable  by  the  Court 
of  Claims,  shall  be  forever  barred,'^^^'^''^  unless  the  petition  setting 
forth  a  statement  thereof  is  filed  in  the  court,  or  transmitted  to  it 
by  the  Secretary  of  the  Senate  or  the  clerk  of  the  House  of  Eepre- 
sentatives,  as  provided  by  law,^^^  within  six  years  after  the  claim 
first  accrues :  Provided,  That  the  claims  of  married  women  first  ac- 
crued during  marriage,  of  persons  under  the  age  of  twenty-one 
years  first  accrued  during  minority,  and  of  idiots,  lunatics,  insane 
persons,  and  persons  beyond  the  seas  at  the  time  the  claim  accrued, 
entitled  to  the  claim,  shall  not  be  barred  if  the  petition  be  filed  in 
the  court  or  transmitted,  as  aforesaid,  within  three  years  after  the 
disability  has  ceased;  but  no  other  disability  than  those  enumerated 
shall  prevent  any  claim  from  being  barred,  nor  shall  any  of  the  said 
disaljilities  operate  cumulatively. '^'^^"'^'^^ 

R.  S.  §  1069,  U.  S.  Comp.  Stat.  1901,  p.  740. 

[a]  Subsequent  statutory  limitations  upon  actions  on  special  classes  of 
claims. 
The  above  provision  of  the  Revised  Statutes  was  originally  enacted  in 
1863.2  Several  later  statutes  have  contained  special  and  temporary  pro- 
visions limiting  the  time  for  bringing  of  actions,  or  waiving  sucli  limita- 
tions or  guarding  against  a  waiver,  as  respects  particular  classes  of  claims. 

iTPost,  §  875.  U.  S.  605.  41  L.  ed.  1130.  17  Sup.  Ct. 

18 See  note  to  §  875.  Rep.  701. 

isUnited  States  v.  Greathouse,  166        2  Act  March  3,  1S63,  c.  92,  §  10,  12 

Stat.  767. 
815 


g   874   [bj  TIME  FOR  COMMENCEMENT  OP  ACTIONS.  [Code  Fed. 

Tlius  the  Bowman  act  of  1883  declared  that  the  court  should  not  have  jur- 
isdiction of  claims  then  barred. 3  The  French  Spoliation  Claims  act  of 
1 885  provided  that  "all  claims  not  finally  presented  to  said  court  within 
the  period  of  two  years  limited  by  this  act  shall  be  forever  barred."*  The 
Indian  Depredation  Claims  act  of  1891  waived  the  statute  as  to  such  claims 
generally,  but  provided  "no  claim  accruing  prior  to  July  1,  1865,  shall  be 
considered  by  the  court  unless  the  claim  shall  be  allowed,  or  has  been  or 
is  pending,  prior  to  the  passage  of  this  act,  before  the  Secretary  of  the 
interior  or  the  Congress  of  the  United  States,  or  before  any  superintendent, 
agent,  subagent,  or  commissioner,  authorized  under  any  act  of  Congress 
to  inquire  into  such  claims;  but  no  case  shall  be  considered  pending  unless 
evidence  has  been  presented  therein,  and  provided  further,  that  all  claims 
existing  at  the  time  of  the  taking  effect  of  this  act  shall  be  presented 
to  the  court  by  petition,  as  hereinafter  provided,  within  three  years  after 
the  passage  hereof,  or  shall  be  thereafter  forever  barred;  and  provided, 
further,  that  no  suit  or  proceeding  shall  be  allowed  under  this  act  for 
any  depredation  which  shall  be  committed  after  the  passage  thereof."5 
The  Spanish  War  claims  act  of  1901  required  the  filing  of  all  claims 
before  the  claims  commission  within  six  months  unless  satisfactory  reason 
for  delay  was  shown. 6   . 

The  proA'ision  of  the  general  statute  of  1887,  known  as  the  Tucker  act, 
is  more  general  and  permanent  in  character,  and  has  already  been  given.7 

[bJ     General  scope  and  construction  of  the  section. 

The  section  comprehensively  embraces  all  claims  cognizable  by  the 
Court  of  Claims.  10  No  exception  not  found  in  the  statute  can  be  en- 
grafted.ii  A  patentee's  claim  for  compensation  for  use  of  his  invention 
is  included,  and  the  general  statutes  as  to  infringement  suits  does  not 
apply.i2  The  section  applies  to  a  suit  by  a  disbursing  officer  for  relief  after 
having  been  obliged  to  account  for  moneys  stolen  from  him. is  It  in- 
cludes a  State's  claim  against  the  five  per  cent  fund.i*  A  claim  is  barred 
unless  filed  within  six  years.is     The  fact  that  is  it  consolidated  with  others 

3§  3.  net  Marcti  3,  1883,  c.  115,  22  isHartman  v.  United  States,  35  Ct. 

Stat.  485,  U.  S.  Comp.  Stat.  1901,  p.  CI.   106. 

748;  see  Dennis  v.  United  States,  23  1 3 United  States  v.   Smith,   105   U. 

Ct.  CI.  324.  S.    020,    26    L.    ed.    1191,    explaining 

4§   6.  act  Jan.   20,   1885,   c.  25,  23  United  States  v.  Clark,  96  U.  S.  37, 

Stat.  284,  U.  S.  Comp.  Stat.  1901,  p.  24  L.  ed.  69G,  on  which  Smith's  Case, 

751.  14  Ct.  CI.  114,  was  decided. 

5Act  March  3,  1891,  c.  538,  §  3,  26  i^United  States  v.  Louisiana,  127 

Stat.  852,  U.  S.  Comp.  Stat.  1901,  p.  U.   S.   182,   32   L.  ed.   66,  8   Sup.   Ct. 

760.  Rep.  1047. 

6Act  March  2,  1901,  c.  800,  ^  9,  31  isBell   v.   United   States,   20  Wall. 

Stat.  879,  U.  S.  Comp.  Stat.  1901,  p.  179,  22  L.  ed.  339;  McKnight  v.  Car- 

2797.  ter,  98  U.  S.  179,  25  L.  ed.  115:  Car- 

vAnte,  §  874.  ter    v.   United    States,   6    Ct.    CI.   31 ; 

lOUnited   States  v.  Taylor,   104  U.  Bulkelev  v.   United   States.  8  Ct.  CI. 

S.  221,  26  L.  ed.  723.  517;    Campbell   v.   United   States,    13 

iiCross  V.  United  States,  4  Ct.  CI.  Ct.  CI.   108. 
271. 

816 


Procedure!  SUITS    AGAINST    UNITED    STATES.  §   874    [cj 

not  barred,  will  not  save  it; is  nor  the  fact  that  claimant  has  been  misled 
by  erroneous  rulings  of  accounting  officers. 17 

As  the  government  permits  suit  only  vv'ithin  six  years,  it  is  a  juris- 
dictional requirement  that  the  party  show  by  his  pleading,  an  accrual 
of  his  right  within  that  time.  A  judgment  for  a  claim  which  the  record 
or  evidence  showed  to  be  barred,  would  be  erroneous.is  It  is  not  neces- 
sary that  the  statute  be  pleaded  as  the  court  is  bound  to  notice  such  a  de- 
fect.i9  It  seems,  however,  that  the  petition  may  be  a;i>ended  after  the 
lapse  of  six  years  if  filed  in  time; 20  and  there  is  a  rule  of  the  Court  of 
Claims  protecting  a  party  in  such  amendment  where  inability  to  examine 
executive  records  has  prevented  his  filing  a  full  and  specific  petition 
in  time.i  And  a  widow  has  been  permitted  to  amend  after  six  years,  so  aa 
to  sue  as  administratrix. 2  It  is  of  course  competent  for  Congress  again 
to  authorize  suit  on  a  claim  which  has  become  barred. 3 

[c]     — effect  of  presentation  to  department. 

When  a  claim  is  of  such  a  character  that  it  may  be  allowed  and  setvled 
by  an  executive  department,  or  may  in  the  exercise  of  discretion,  be 
referred  by  it  to  the  Court  of  Claims  for  final  determination,  a  claim 
if  so  presented  to  an  executive  department,  within  six  years  is  not  barred 
if  not  entered  in  the  Court  of  Claims  until  after  six  years.  The  filin? 
of  the  petition  then  relates  back  to  the  presentation  of  the  claim  to  the 
department.6  The  presentation  must  be  to  the  proper  department  and 
the  claim  must  be  of  the  class  which  a  department  may  allow  and  settle, 
or,  in  its  discretion,  transmit  to  the  court. 7  The  running  of  the  statute  is 
not  stopped  as  respects  other  claims  by  the  fact  of  their  presentation  to, 
and  rejection  by  the  department ;  8  and  the  statute  is  of  course  a  bar  in  six 
years  after  an  adjudication  by  the  proper   department   against   a  claim.9 

leCentralP.R.  R.  V.  United  States,  2Skelly   v.    United-  States,    32    Ct 

24  Ct.  CI.  145.  €1.   227. 

i7Lisle    V.    United    States,    23    Ct.  sWrav  v.  United  States,  19  Ct.  CI. 

CI.  270.  154;    Cross   v.   United   States,   4   Ct. 

isFinn   v.   United    States.    123   U.  CI.  271. 

S.  227,  3'!  L.  ed.  128,  8  Sup.  Ct.  Rep.  6United  States  v.  Lippitt,   100  U. 

82;  United  States  v.  Connor,  138  U.  S.   6f)3.   G&8,  25  L.   ed.   749:    Finn   v. 

S.  66.  34  L.  ed.  862,  11  Sup.  Ct.  Rep.  United   States,  123  U.   S.  232,  31   L. 

231;  United  States  v.  Wardwell.  172  ed.  130,   8  Sup.   Ct.  Rep.  82:   United 

U.  S.  48.  .52.  43  L.  ed.  360,  19  Sup.  States  v.   Xcav  York.  160  U.   S.  618, 

Ct.   Rep.   88;    Baltimore,   etc.   R.   R.  40  L.  ed.  557.  16  Sup.  Ct.  Rep.  40? 

V.  United  States.  14  Ct.  CI.  484.  TMcClure  v.  United  States.  19  Ct. 

i9KendaIl  v.  United  States,  14  Ct.  CI.     18;     Alexandria,    etc.    R.    R.    v. 

CI.   122:    Finn  v.   United  States.    123  United  States,  26  Ct.  CI.  327;  Savage 

U.   S.   227,  31   L.  ed.   128.   8   Sup.   Ct.  v.  United  States.  23  Ct.  CI.  255. 

Rep.  82;  De  Arnand  V.  United  States,  sSee   Battelle   v.   United   States.   7 

151  U.  S.  495,  38  L.  ed.  247.  248,  14  Ct.  CI.  297 ;  Ravesies  v.  United  States. 

Sup.  Ct.  Rep.  374.  21    Ct.    CI.    247;     Curtis    v.    United 

20Griffin    v.    United   States,    13    Ct.  States,  24  Ct.  CI.  1. 

CI.  257;   Devlin  v.  United  States,   12  sUnited   States   v.    Connor.    138   U. 

Ct.  CI.  266.  S.  61.  67,  34  L    ed.  861.  862,  11  Sup. 

iSee  Hillbom  v.  United  States,  27  Ct.  Rep.  229. 
Ct.  CI.  547. 

Fed.  Proc— 52.  817 


§   874    [d]  TIME  FOR   COMMENCEMENT  OF  ACTIONS.  [Code  Fed. 

[d]     When  claim  is  deemed  to  accrue. 

The  clause  of  the  act  of  1887  makes  the  limitation  run  from  the  time 
the  'Tight  accrued  for  which  the  claim  is  made,"ii  though  this  change 
in  phraseology  was  probably  not  intended  to  carry  with  it  any  change 
in  legal  effect.  A  disbursing  officers  claim  for  relief  where  moneys  have 
been  stolen  from  him,  only  accrues  when  an  account  is  stated  holding 
him  for  the  loss,  and  not  at  the  time  of  the  loss.  12  A  collector  of 
customs  claim  for  salary  accrues  at  the  end  of  each  fiscal  year.is  The 
payment  of  money  into  the  Treasury  or  equivalent  act,  such  as  the 
dissallowance  of  a  claim  in  an  account,  marks  accrual  of  officer's  claim 
that  he  was  entitled  to  retain  it.i*  The  claim  of  the  holder  of  a  draft  to 
the  issuance  of  a  warrant  under  R.  S.  §  308  does  not  begin  to  run  until 
claimants  application  is  refused.i5  The  refusal  of  the  Secretary  of  the 
Treasury  to  pay  money  claimed,  marks  the  accrual  of  the  right  to  sue 
therefor.  16  It  has  been  decided  that  the  statute  does  not  begin  to  run 
against  claims  of  a  naval  contractor  for  various  extras  until  the  comple- 
tion of  the  contract  work. 1 7  On  a  contract  for  the  sale  of  goods  the 
statute  runs  from  the  time  the  amount  is  payable.! «  A  patentees  claim 
for  compensation  accrues  when  his  invention  is  embodied  in  a  manu- 
tured  article;i9  or  his  device  is  used  by  the  government.20  An  action 
by  a  State  for  receipts  from  the  sale  of  swamp  lands  is  not  barred  until 
six  years  after  the  amount  is  ascertained  by  the  commissioner  of  the 
General  Land  Offioe.i  If  a  statutory  right  is  the  basis  of  a  claim,  it 
first  accrues  where  an  appropriation  thereunder  becomes  available; 2  and 
a  claim  under  a  special  act  accrues  from  its  passage.3  In  brief  a  claim  first 
accrues    within    this    provision,    upon    the    day    when    suit    might    first    be 

11  Ante,  §  874.  i^Myerle  v.  United   States,  31   Ct. 

i2United  States  v.  Clark.  96  U.  S.  CI.  105. 

37.   24  L.   ed.   696;   United   States  v.  isBatelle  v.    United   States,   7   Ct. 

Smith.  105  U.  S.  620.  26  L.  ed.  1191;  CI.  397. 

Hobbs  Case.  17  Ct.  CI.  189;  Wood  v.  isHartman  v.  United  States,  35  Ct. 

I'nited  States,  25  Ct.  CI.  98;  Scott  v.  CI.   106. 

United  States,  18  Ct.  CI.  1.  2oUTaited  States  v.  Berdan,  etc.  Co. 

isBaehelor  v.  United  States,  8  Ct.  156  U.  S.  570,  39  L.  ed.  530.  15  Sup. 

CI.  235:   Ellsworth  v.  United  States,  Ct.  Rep.  420. 

14  Ct.  CI.  582.  lUnited    States    v.    Louisiana.    123 

i4Smith  V.  United  States,  14  Ct.  CI.  U.  S.  32,  31  L.  ed.  69,  8  Sup.  Ct.  Rep. 

114;  Lawson  v.  United  States.  14  Ct.  17. 

CI.  332;    Clark  v.  United  States,   99  2Bemard  v.  United  States,  26  Ct. 

U.    S.    493.    25   L.    ed.    481;    United  CI.  312. 

States  v.   Clark,  96  U.   S.  37,   24  L.  sRice  v.  United  States,  21  Ct.  CI. 

ed.   696.  413,  where  the  statute  directs  a  mere 

isUnited    States  v.   Wardwell,    172  ministerial  act  by  an  accounting  of- 

U.   S.  48,  43  L.  ed.  360,   19  Sup.  Ct.  ficer   the    period   of   limitations   runs 

Rep.  86.  from  the  act's  passage,  not  from  the 

ifiUnited  States  v.  Lawton,  110  U.  acounting:    Indiana  v.  United  States, 

S.  146,  28  L.  ed.  100,  3  Sup.  Ct.  Rep.  26  Ct  CI.  583. 
545;    United    States    v.    Taylor,    104 
U.   S.   216,  26  L.  ed.  721  :   Taylor  v. 
United  States,  14  Ct.  CI.  339. 

818 


I 


Procedure]  IN  CUSTOMS  DUTIES  CASES.  §   875 

brought  on  it;4  and  not  until  suit  might  so  be  brought. 5  So  where  a 
contractor  died  before  his  claim  accrued,  the  statute  was  held  not  to  run 
imtil  an  administrator  was  appointed  who  could  sue  thereon. 6  Where  the 
United  States  was  trustee  of  a  fund  the  statute  was  held  not  to  run  until 
some  disavowal  of  the  trust."  And  where  a  treasury  warrant  issued  in 
payment  of  an  audited  account,  it  is  suable  within  six  years  though  the 
original  account  would  be  barred. s 

[e]     Disabilities,  acknowledgment  and  part  payment. 

Payment  of  the  only  part  of  a  claim  conceded  to  be  due,  is  of  course 
not  an  acknowledgment  of  the  controverted  balance. 12  But  Congress 
may  be  an  unqualified  acknowledgment  that  a  debt  is  due  take  a  case  from 
the  bar  of  the  statuite.i3  The  disabilities  mentioned  in  the  provision  must 
have  existed  when  the  right  accrued  and  subsequent  disability  such  as 
departure  beyond  seas,i4  or  insanity  is  will  not  arrest  the  statute.  A 
second  departure  beyond  seas  will  not  arrest  the  statute  which  has  com- 
menced to  run  upon  return  from  the  original  absence.is  The  Tucker  act 
of  1887  did  not  repeal  the  portion  of  R.  S.  §  10G9  relating  to  persons  under 
disability.!  8 

§  875.     Settlements  for  customs  duties  conclusive  after  one  year. 

Whenever  any  goods,  wares  and  merchandise  shall  have  been 
entered  and  passed  free  of  duty,  and  whenever  duties  upon  any  im- 
ported goods,  wares  and  merchandise  shall  have  been  liquidated  and 
paid,  and  such  goods,  wares  and  merchandise  shall  have  been  de- 
livered to  the  owner,  importer,  agent  or  consignee,  such  entry  and 
passage  free  of  duty  and  such  settlement  of  duties  shall,  after  the 
expiration  of  one  year  from  the  time  of  entry,  in  the  absence  of 
fraud  and  in  the  absence  of  prot-est  by  the  owner,  importer,  agent 
or  consignee,  be  final  and  conclusive  upon  all  parties. 

§  21  of  act  June  22,  1874,  c.  .391,  18  Stat.  186,  U.  S.  Comp.  Stat.   1901, 
p.    1986. 

4Harri?on  v.  United  States.  20  Ct.  i2United  States  v.  Wilder,  13  Wall. 

CI.  175;  Rice  v.  United  States.  21  Ct.  254.  20  L.  ed.  681. 

CI.  413;   Patterson  v.  United  States,  i3Cross  v.  United  States,  4  Ct.  CI. 

21    Ct.     CI.     322;     Curtis   v.    United  271. 

States,    34    Ct.     CI.     1;    Hartman   v.  i4De  Arnand  v.  United  States.  151 

United  States.  35  Ct.  CI.  108.  U.  S.  495,  496.  38  L.  ed.  247.  248.   14 

5United    States   v.    Cooper,   120   U.  Sup.  Ct.  Rep.  374. 

S.  124.  30  L.  ed.  606,  7  Sup.  Ct.  Rep.  isLeonard  v.  United  States,  18  Ct. 

459:  United  States  v.  Taylor,  104  U.  CI.  382. 

S.  216,  26   L.  ed.  721.  leSavage  v.  United   States,  23   Ct. 

SFulenweider's  Case,  9  Ct.  CI.  403.  CI.  255. 

■^Harrison  v.  United  States,  20  Ct.  isUiiited  States  v.  G-reathouse.  166 

01.   175;   Louisiana  v.  United  States,  U.  S.  605,  41  L.  e<l.  1130,  17  Sup.  Ct. 

23  Ct.  CI.  53.  Rep.  701. 

sBuffalo  B.  R.  Case,  16  Ct.  CI.  238. 

819 


§  876  TIME  FOR  COMMENCEMENT  OF   ACTIONS.  [Code   Fed. 

Plaintiff  suing  to  recover  an  excess  of  taxes  paid  must  show  protest, 
appeal  and  suit  within  the  prescribed  time. 2  This  section  is  in  the  nature 
of  a  statute  of  limitations  as  respects  the  government's  right  to  reliquidate 
duties. 3  It  is  binding  on  the  government  as  well  as  the  parties.*  The 
year   runs    from    the   time    of    entry   and   not    from    the    first    liquidation.^ 

§  876.     Limitation  of  suits  for  recovery  of  taxes  wrongfully  col- 
lected. 

ISTo  suit  or  proceeding  for  the  recovery  of  any  internal  tax  alleged 
to  have  been  erroneously  or  illegally  assessed  or  collected,  or  of 
any  penalty  alleged  to  have  been  collected  without  authority,  or  of 
any  sum  alleged  to  have  been  excessive  or  in  any  manner  Avrong- 
fully  collected,  shall  be  maintained  in  any  court,  unless  the  same  is 
brouglit  within  two  years  next  after  the  cause  of  action  accrued: 
Provided,  That  actions  for  such  claims  which  accrued  prior  to  June 
6,  1872,  may  be  brought  within  one  year  frorn  said  date;  and  that 
where  any  such  claim  was  pending  before  the  Commissioner,  as 
provided  in  the  preceding  section,  an  action  thereon  may  be  brought 
within  one  year  after  such  decision  and  not  after.  But  no  right 
of  action  which  was  already  barred  by  any  statute  on  the  said  date 
shall  be  revived  by  this  section. 

R.  S.  §  3227,  U.  S.  Comp.  Stat.  1901,  p.  2089. 

This  provision  was  enacted  in  1872.8  The  act  of  18G69  forbade  suit 
until  after  appeal  to  the  Commissioner  of  internal  revenue  and  required 
suit  to  be  brought  within  six  months  10  after  his  decision,  or  within 
twelve  months  after  the  appeal,  if  his  decision  was  delayed  beyond  six 
months.  The  provision  as  to  appeal  to  the  commissioner  is  preserved  in 
R.  S.  §  3226;  but  a  party  now  has  in  ever}-  instance,  two  years  after  his 
decision  in  which  to  sue,  with  an  option  of  suing,  without  waiting  for 
the  Commissioner's  decision,  within  two  years  from  the  time  of  taking  the 
appeal  in  case  the  decision  is  delayed  beyond  six  months. n  The  appeal 
to  the  commissioner  must  be  had  within  two  years  after  the  cause  of  action 
accrues.  12  The  "two  years  next  after  the  cause  of  action  accrued"  in 
R.  S.  §  3227,  respecting  suit  in  court,  obviously  means  after  the  proceed- 

2Beard  v.  Porter,  124  U.  S.  443,  31  9Act  July  13,  ISttti,  c.  184,  14  Stat. 

L.  ed.  492.  8  Sup.  Ct.  Rep.  .556.  152. 

sUnited  States  V.  Leng.  18  Fed.  15;  lOCheatham    v.    United    States,    92 

United   States   v.   Campbell,   10   Fed.  U.  S.  86,  23  L.  ed.  561. 

822.  1  I.James   v.   Hicks,   110  U.   S.   275, 

4United       States     v.      Phelps.      17  28  L.  ed.  144,  4  Sup.  Ct.  Rep.  6. 

Blatchf.  316,  Fed.  Cas.  No.  16,039.  i2Post.  §  877:  Kings  Co.  Sav.  Ins. 

SUnited  States   v.   Frazer,   10  Ben.  v.  Blair    116  U.  S.  205,  200,  29  L.  ed. 

347,   Fed.   Cas.   No.    15.161.  657,  6  Sup.  Ct.  Rep.  353. 

sAct  .June  6,  1872,  c.  315,  §  14,  17 
Stat.  257. 

820 


I 


Procedure]  RECOVERY  OF  TAXES.  §  877 

ings  before  the  commissioner  provided  in  R.  S.  §§  3226,  3228.13  The 
party  under  legal  disability  to  sue  during  the  time.i*  The  rejection 
of  an  appeal  to  the  commissioner  for  mere  informality  does  not  start 
the  statute  where  he  afterwards  entertains  an  appeal  in  due  form. is 
If  the  commissioners  decision  is  delayed  beyond  two  years  and  the  party 
has  not  meantime  sued,  the  option  to  sue  without  waiting  for  it,  is  lost. is 
A  statute  relieving  a  claimant  from  the  bar  of  R.  S.  §  3226  as  to  appeal  to 
the  commissioner,  will  be  construed  as  removing  the  bar  to  subsequent  suit 
under  R.  S.  §  3237.1  ^  The  period  of  limitations  provided  by  these  sections 
applies  only  to  suits  by  the  individual  for  taxes  paid  and  not  government 
suits,  for  taxes,  to  which  he  is  defendant.is  The  gist  of  the  action  re- 
ferred to  by  this  section  is  wrongful  conduct  of  an  internal  revenue  officer 
and  it  does  not  apply  to  a  claim  upon  a  draft  duly  issued  by  the  revenue 
department  in  rectification  of  an  error. is 

§  877.  —  of  time  for  appeal  to  commissioner. 

All  claims  for  the  refunding  of  any  internal  tax  alleged  to  have 
been  erroneously  or  illegally  assessed  or  collected,  or  of  any  penalty 
alleged  to  have  been  collected  without  authority,  or  of  any  sum 
alleged  to  have  been  excessive  or  in  any  manner  wrongfully  col- 
lected, must  be  presented  to  the  Commissioner  of  Internal  Kevenue 
within  two  years  next  after  the  cause  of  action  accrued :  Provided, 
That  claims  which  accrued  prior  to  June  6,  1872,  may  be  presented 
to  the  Commissioner  at  any  time  within  one  year  from  said  date. 
But  nothing  in  this  section  shall  be  construed  to  revive  any  right 
of  action  which  was  already  barred  by  any  statute  on  that  date. 
R.  S.  §  3228,  U.  S.  Comp.  Stat.  1901,  p.  2089. 

This  provision  is  from  an  act  of  1872.3  The  presentation  of  a  claim  for 
refund  to  the  Commissioner  is  a  condition  upon  which  alone  the  govern- 
ment consents  to  litigate  the  lawfulness  of  the  original  tax.  The  collector 
may  not  be  sued  unless  the  tax  payer  has  first  applied  for   relief  to  the 

isWright   V.   Blakeslee,   101    U.   S.  isjames  v.  Hicks,  110  U.  S.  275.  28 

174,    25    L.    ed.    1048;    Cheatham    v.  L.  ed.  144,  4  Sup.  Ct.  Rep.  6. 

United  States,  92  U.  S.  85,  23  L.  ed.  is.James  v.   Hicks,   110   U.   S.  276, 

561.  28  L.  ed.  144,  4  Sup.  Ct.  Rep.  6. 

I'JBraun    v.    Sauerwein,    10  Wall.  i"  Commissioners,   etc.   v.   Buckner, 

223,  19  L.  ed.  895.    Tlie  party  cannot  48  Fed.  536. 

sue    without    first    appealing    to    the  isClinkenbeard    v.    United    States, 

Commissioner:    Collector  v.  Hubbard,  21    Wall.    70.   22  L.    ed.   477;    United 

12   Wall.   15,   20  L.   ed.   272;    United  States   v.    Nebraska   D.    Co.   80   Fed. 

States   V.   Savings    Bank.    104   U.    S.  285.  25  C.  C.  A.  418. 

734.  26  L.  ed.  90S :  Stewart  V.  Barnes,  isRay    v.    Uuited    States,   50    Fed. 

153  U  .S.  458,  38  L.  ed.  781,  14  Sup.  166. 

Ct.  Rep.  849.  3 Act   June   6,    1872,   c.   315,    §   44, 

17  Stat.  257. 
821 


§   878  TIME   FOR    COMMENCEMENT   OF    ACTIONS.  [Code  Fed. 

Commissioner  within  the  time  and  in  the  manner  pointed  out  by  law  and 
has  been  denied  relief.'* 

§  878.     Limitation  of  actions  to  annul  land  patents. 

Suits  by  the  United  States  to  vacate  and  annul  any  patent  here- 
tofore issued  shall  only  be  brought  within  five  years  from  the  pas- 
sage of  this  act,  and  suits  to  vacate  and  annul  patents  hereafter 
issued  shall  only  be  brought  within  six  years  after  the  date  of  the 
issuance  of  such  patents. 

Part  of  §  8,  act  Mar.  3,  1891,  e.  561,  26  Stat.  1099,  U.  S.  Comp.  Stat. 
1901,  p.  1521. 

Prior  to  this  enactment  the  right  of  the  government  to  sue  for  the  can- 
cellation of  patents  on  grounds  of  fraud,  etc.,  was  well  settled,6  but  sub- 
ject to  no  limitations,  except  such  as  a  court  of  equity,  recognizes  in  the  de- 
fense of  laches. 7  This  enactment  relieves  patent,  after  six  years,  from 
that  element  of  uncertainty.  However,  it  does  not  apply  to  the  limited 
class  of  cases  in  which  individuals  are  permitted  to  sue  for  cancellation. s 

§  879.  —  to  annul  patents  under  railway  or  wagon  road  grant, 

Suits  by  the  United  States  to  vacate  and  annul  any  patent  to 
lands  heretofore  erroneously  issued  under  a  railroad  or  wagon  road 
grant  shall  only  be  brought  within  five  years  from  the  passage  of 
this  act,  and  suits  to  vacate  and  annul  patents  hereafter  issued  shall 
only  be  brought  within  six  years  after  the  date  of  the  issuance  of 
such  patents,  and  the  limitation  of  section  eight''  of  chapter  five 
hundred  and  sixty-one  of  the  acts  of  the  second  session  of  the  Fifty- 
first  Congress  and  amendments  thereto  is  extended  accordingly  as  to 
the  patents  herein  referred  to. 

Part  of  §  1,  act  Alar.  2,  189G,  c.  39,  29  Stat.  42,  U.  S.  Comp.  Stat.  1901, 
p.  1603. 

§  880.     Limitation  of  actions  for  lands  patented  to  Indians. 

In  all  actions  brought  in  any  State  court  or  United  States  court 

4King  Co.   Sav.   Ins.   v.  Blair,   116  ^United    States    v.    Throckmorton, 

U.   S.  200,  206.  29  L.  ed.  657,  650,  6  98   U.    S.   64.  25  L.    ed.     93;    United 

Sup.  Ct.  Rep.  353;  Louisville  Comrs.  States  v.  BeAe,  127  U.  S.  348,  32  L. 

V.  Biickner,  48  Fed.  535.  ed.  121,  8  Sup.  Ct.  Rep.  1083;  United 

eUnited  States  v.  Hughes,  11  How.  States  v.   Chicago,  etc.  Ry.   116   Fed. 

568,  13  L.  ed.  809;  Garland  v.  Wvnn,  969,  54  C.   C.   A.  545;   United  State-i 

20   How.    8.   15    L.    ed.     801  ;    United  v.  McGrau,  12  Fed.  449,  8  Sawv.  156. 

States   V.   Stone,   2   Wall.  535,   17   L.  sPeabody   G.   M.   Co.   v.   Gold  Hill 

ed.  765.     See  also  statutes  authoriz-  M.  Co.  106  Fed.  241. 

ing  such  suits,  referred  to  in  United  sAnte,   §  87^8. 
States  V.  Southern  Pac.  Co.  117  Fed. 
544. 

822 


Procedure]  FOR    PENALTIES.  §  881 

by  any  patentee,  his  heirs,  grantees  or  any  person  claiming  under 
such  patentee,  for  the  possession  or  rents  or  profits  of  lands  patented 
in  severalty  to  the  members  of  any  tribe  of  Indians  under  any  treaty 
between  it  and  the  United  States  of  America,  where  a  deed  has  been 
approved  by  the  Secretary  of  the  Interior  to  the  land  sought  to  be 
recovered,  the  statutes  of  limitations  of  the  States  in  which  said 
land  is  situate  shall  be  held  to  apply  and  it  shall  be  a  complete 
defense  to  such  action  that  the  same  has  not  been  brought  within 
the  time  prescribed  by  the  statutes  of  said  State  the  same  as  if 
such  action  had  been  brought  for  the  recovery  of  land  patented  to 
others  than  meml^ers  of  any  tribe  of  Indians. 
§  1  of  act  May  31,  1902,  c.  946,  32  Stat.  284. 

§  881.  —  of  actions  for  penalties  and  forfeitures  under  Federal 
laws. 

ISTo  suit  or  prosecution  for  any  penalty  or  forfeiture,  pecuniary  or 
otherwise,  accruing  under  the  laws  of  the  United  States,  shall  be 
maintained,  except  in  cases  where  it  is  otherwise  specially  provided, 
unless  the  same  is  commenced  within  five  years  from  the  time  when 
the  penalty  or  forfeiture  accrued :  Provided,  That  the  person  of  the 
offender,  or  the  property  liable  for  such  penalty  or  forfeiture,  shall, 
within  the  same  period,  be  found  within  the  United  States ;  so  that 
the  proper  process  therefor  may  be  instituted  and  served  against 
such  person  or  property. 

R.  S.  §  1047,  U.  S.  Comp.  Stat.  1901,  p.  727. 
This  provision  of  the  Revised  Statutes  is  drawn  from  several  earlier 
statutes.  10  An  early  case  held  that  an  action  of  debt  for  a  penalty  under 
the  slave  laws  was  governed  by  the  period  of  limitations  prescribed  by  an 
act  of  179011  limiting  criminal  prosecution  under  the  penal  statutes.i2 
But  such  actions  would  now  clearly  be  covered  by  R.  S.  §  1047, is  rather 
than  by  section  limiting  penal  prosecutions.  If  a  case  is  within  either  sec- 
tion the  State  statute  of  limitations  will  not  apply. 1 4     A  penalty  may  be 

lOAct  March  2,  1799,  c.  22,  §  89,  1  i2Adams  v.  Woods.  2  Cranch,  336. 

Stat.    695.      Act.   March    26,    1804,    c.  2  L.  ed.  297.     Followed  though  some- 

40,   §  3,  2  Stat.  290.     Act  April   20,  what  doubted  bv  Storv.  J.  in  United 

1818,   c.   91,    §    9,   3   Stat.   452.      Act  States    v.    Mavo,    1    Gall.    3^,    Fed. 

Feb.  28,  1839,  c.  .36.  §  4,  5  Stat.  322.  Cas.  No.  15,755. 

Act   March   3,    1863,   c.   76,    §    14,   12  isTnited  States  v.   Piatt,  27  Fed. 

Stat.  741.     Act  Julv  25.  1808.  c.  236,  Cas.  540. 

§   1,   15  Stat.   183.  '  i4McGlinchv    v.    United    States,    4 

iiSubstantially     the     same    as    §§  riiff.     312,     Fed.     Cas.     Xo.     8,803; 

884,  885  post.  United  States  v.  Banister,  70  Fed.  44. 

823 


882 


TIME  FOR   COMMENCEMENT  OP  ACTIONS. 


[Code  Fed. 


recovered  either  by  civil  action  in  debt,  or  by  criminal  prosecution. i^  But 
no  civil  suit  would  probably  be  regarded  as  for  a  penalty  within  this  clause 
unless  instigated  by  the  government  or  qui  tam  by  an  informer  for  his 
moiety. 16  While  the  government  is  not  usually  within  the  application  of 
statutes  of  limitation  in  civil  cases,  it  is  within  this  section.!"  In  other 
words  the  section  does  not  embrace  a  suit  which  is  essentially  a  civil 
remedy  for  a  private  injury,  compensatory  in  its  purpose  and  effect. is  The 
distinguishing  characteristics  of  suits  for  penalties  have  been  considered 
by  the  Supreme  Court  in  several  cases. 1 9  Suits  for  statutory  damages  for 
copyright  infringements o  or  violation  of  the  anti-trust  aot,i  or  for  damages 
for  negligence  of  a  national  bank  president, 2  or  to  enforce  bank  directors' 
liability, 3  are  not  suits  for  penalties  within  this  section,  but  are  governed 
by  the  State  statutes  of  limitations.  So  an  action  of  debt  on  an  official 
bond  is  not  for  a  penalty. *  But  a  libel  of  a  vessel  under  R.  S.  §  4409  to 
recover  statutory  penalties  for  overcrowding  is  within  this  section. 5  The 
extent  to  which  R.  S.  §  1047  and  the  earlier  statutes  on  which  it  is  based, 
are  applicable  to  criminal  prosecutions  is  not  extensively  discussed  by 
the  authorities.  However,  a  prosecution  for  a  crime  for  which  defendant 
may  be  imprisoned  or  hanged,  is  not  a  prosecution  or  a  penalty,  pecuniary 
or  otherwise.  6 

§  882.  —  of  actions  for  penalties  and  forfeitures  under  customs 
revenue  laws. 

No  suit  or  action  to  recover  any  pecuniary  penalty  or  for- 
feiture of  property  accruing  under  the  customs  revenue  laws  of  the 
United  States  shall  be  instituted  unless  such  suit  or  action  shall  be 
commenced  within  three  years  after  the  time  when  such  penalty  or 
forfeiture  shall  have  accrued:  Provided,  That  the  time  of  the  ab- 
sence from  the  United  States  of  the  person  subject  to  such  penalty 
or  forfeiture,  or  of  any  concealment  or  absence  of  the  property,  shall 
not  be  reckoned  within  this  period  of  limitation. 


iBAdams  v.  Woods.  2  Cranch,  342,    175  U.  S.  148,  44  L.  ed.  110,  20  Sup. 
2  L.  ed.  297 ;  Lees  v.  United  States,    Ct.  Rep.  62. 


150  U.  S.  479,  37  L.  ed.  1150,  14  Sup. 
Ct.  Rep.  163;  United  States  v.  Stock- 
ing, 87  Fed.  857. 

isAtlanta  v.  Chattanooga,  etc.  Co. 
101  Fed.  900. 

i^United  fetates  Maillard,  4  Ben. 
459,  Fed.  C^as.  No.  15.709. 

18 Atlanta  v.  Chattanooga,  etc.  Co. 
101  Fed.  900. 

19 See  Wisconsin  v.  Pelican  Ins. 
Co.  127  U.  S.  265,  32  L.  ed.  239.  8 
Sup.  Ct.  Rep.  1370;  Huntington  v. 
Attrill,  146  U.  S.  657,  36  L.  ed.  1123. 


2  0Bradv  v.  Daly,  175  U.  S.  148,  44 
L.  ed.  109,  20  Sup.  Ct.  Rep.  62. 

lAtlanta  v.  Chattanoo«ra,  etc.  Co. 
101  Fed.  900.     See  on  a.ppeal.  203  U. 

S.  ,  51  L.  ed.    (p.  65  of  advance 

op.) 

2  Steams  v.  Lawrence.  83  Fed.  738, 
28  C.  C.  A.  66. 

sWelles  V.  Graves,  41   Fed.  459. 

*Ravmond  v.  United  States, 
14  Bla^chf.  51.  Fed.  Cas.  No.   11.596. 

sHatch  V.  The  Boston,  3  Fed.  810. 

eUnited   States   v.   BrowTi,  2  Low. 


13  Sup.  Ct.  Rep.  224;  Brady  v.  Daly.    267,  Fed.  Cas.  No.  14,665 

'824 


Procedure]  FOR    OFFENSES    NOT    CAPITAL.  §  883   [a] 

§  2-2  of  act  June  22,  1874,  c.  391,  IS  Stat.  190,  U.  S.  Comp.  Stat.  1901, 
p.  727. 

Section  21  of  the  same  act  provides  that  settlements  as  to  duties  shall, 
in  the  absence  of  fraud  or  protest,  after  the  expiration  of  one  year,  he 
final  and  conclusive  upon  all  parties. 

§  883.  —  of  forfeiture  proceedings  for  false  claims  against  Unit- 
ed States. 
Every  such  suit   [i.  e.  forfeiture  and  damages  against  persons 
making  false  claims  against  the  United  States]  shall  be  commenced 
within  six  years  from  the  commission  of  the  act,  and  not  afterward. 
R.  S.  §  3494,  U.  S.  Comp.  Stat.  1901,  p.  2329. 

§  884.     Time  for  indictment  for  capital  offenses. 

Xo  person  shall  be  prosecuted,  tried  or  punished  for  treason  or 
other  capital  offense,  -wilful  murder  excepted,  unless  the  indictment 
is  found  within  three  years  next  after  such  treason  or  capital  offense 
is  done  or  committed. 

R.  S.  §  1043,  U.  S.  Comp>  Stat.  1901,  p.  725. 

This  provision  was  first  enacted  in  1790.9  The  term  "wilful  murder"  is 
used  in  a  technical  and  not  a  popular  sense.  Wilful  murder  is  not  com- 
mitted by  a  seaman  who  shoots  another  on  board  ship  where  the  victim 
dies  ashore  and  within  a  foreign  jurisdiction,  even  though  by  R.  S.  §  5339 
the  offense  is  punishable  by  death. lo 

§  885.  —  for  offenses  not  capital. 

Xo  persons  shall  be  prosecuted,  tried  or  punished  for  any  offense 
not  capital,  except  as  provided  in  section  one  thousand  and  forty- 
six^^^  [i.  e.,  of  the  revised  statutes^^]  ^  unless  the  indictment  is  found, 
or  the  information  is  instituted i^*^]  within  three  years  next  after  such 
offense  shall  have  been  committed. ^"^^  But  this  act  shall  not  have 
effect  to  authorize  the  prosecution,  trial  or  punishment  for  any 
offense,  barred  by  the  provisions  of  existing  laws.^^^"^®^ 
R.  S.  §  1044,  U.  S.  Comp.  Stat.  1901,  p.  725. 

[a]     The  section  in  general. 
As  orginally  enactedi3  the  time  of  prosecution  was  limited  to  two  years. 

9 Act  April  30,   1790,  c.   9,   1   Stat.  i2Post.   §   887. 

119.  13 Act  April  30,  1790,  c.  9,  §  32,  1 

lOUnited    States    v.  Hewecker.   79  Stat.  119. 
Fed.  .59. 

825 


§   885   [bj  TIME    FOR   COMMENCEMENT  OP    ACTIONS.  [Code  Fed. 

An  act  of  1870  increased  it  to  three. i-»  The  original  act  was  declared  as  ap- 
plicable to  offenses  after  its  passage  as  before  ;15  and  to  include  mis- 
demeanors in  the  District  of  Columbia. is  Where  evidence  of  other  offenses 
is  admissible  to  show  criminal  intent,  the  fact  that  these  others  are  prior 
and  barred  by  the  statute  does  not  render  them  inadmissible.! 7 

[b]  Exceptions  to  the  statute. 

The  fact  that  the  offender's  guilt  was  not  knowni  or  that  he  was  absent, 
e.  g.,  on  a  whaling  voyage,'-  will  not  prevent  the  statutes  from  running. 
But  if  a  party  flees  from  the  district  within  the  time  limited  for  his  prose- 
cution, then  the  statute  does  not  apply  at  all.s 

[c]  Indictment  or  information  necessary  to  stop  statute. 

Filing  of  complaint  in  a  commissioners  court  will  not  stop  the  running 
of  the  statute; 6  neither  will  the  finding  of  an  informal  presentment.^  A 
second  indictment  after  the  time  limit  is  bad,  where  the  first  though 
found  in  due  time  was  non-prossed. 8  The  time  of  filing  the  indictment 
will  appear  from  the  caption. 9 

[d]  When  statute  begins  to  run. 

A  conspiracy  under  R.  S.  §  5440  is  completed  when  the  overt  act  is  com- 
mitted in  pursuance  thereof,  and  the  statute  then  begins  to  run,  subsequent 
acts  thereunder  do  not  render  it  a  continuing  crime. n  But  a  conspiracy  to 
defraud  the  United  States  by  unlawful  entries  of  public  lands  has  been 
declared  not  severable  as  to  each  overt  act  into  separate  offenses.is  The 
offense  of  withholding  pension  money  is  not  continuing,  but  is  perfect  upon 
refusal  to  pay  the  pensioner,  and  barred  in  the  statutory  time  thereafter. is 
So  polygamy  within  the  act  of  1882  consists  in  the  unlawful  marriage  and 
is  barred  in  three  years,i4  though  the  unlawful  cohabitation  may  also  be  an 
offense. 

i*Act  April  13,  1876,  c.  56,  l&  Stat,  acy  to  commit  an  offense  against  the 

32.  United    States    has    been    held  not 

15 Adams  v.  Woods,  2  Oranch  342,  within    this    section:    United   States 

2  L.  ed.  297;   United  States  v.  Bal-  v.  Francis,  144  Fed.  250. 

lard,  3  McLean,   470,   Fed.   Cas.   No.  eEx  parte  Lacey,  6  Okla.  4,  37  Pac. 

14,507;   Johnson  v  United  States,   3  1095. 

McLean,  89,  Fed.  Cas.  No.  7,418:  ^United  States  v.  Slacum,  1  Cranch 

leUnited      States      v.      Porter,     2  C.  C.  485,  Fed.  Cas.  No.  16,.311. 

Cranoh  C.  C.  60,  Fed.  Cas.  No.  16,072.  sUnited   States   v.   Ballard,   3  Mc- 

i7Dow   V.   United   States,    82   Fed.  ^ean,  469,  Fed.  Cas.  No.  14,507. 

904,    27    C.    C.    A.    140;    Wolfson    v.  r.  ^^""l^^^  r.^^^^^  r."";    ^^^^H^'^'^J 

United  States,  101  Fed.  430,  102  Fed.  ^^^"'^^  C.  C.  441,  Fed.  Cas.  No.  16,- 


134,  41  C.  C.  A.  422. 


649. 


ITT  -^  J  q1  *-'         TTTu-j-      c  n  „«-^u  iiUnited   States  v.  Owen,  32  Fed. 

lUnited  States  v.  White,  5  Cranoh  f.^..    lo  c           -o 

C.    C.   318,   73,  Fed.   Cas.   Nos.    16,675,  'Jf  -^^"^ll  '1           ..  n     a   'ro  ^   a 

,p^7e  i2United  States  v.  McCord,  72  i^ed. 

16,676.  jgg 

2United   States   v.   Brown,   2  Low.  isUnited  States  v.  Irvine,  9«  U.  S. 

267,  Fed.  Cas.  No.  14,665.  450^  25  L.  ed.  193. 

sUnited  States  v.  White,  5  Cranch,  i^Murphv  v.  Ramsev,  114  U.  S.  15, 

116,  Fed.  Cas.  No.  16,677.    A  conspir-  29   L.   ed.  *47,   5   Sup.'  Ct.   Rep.   747. 

826 


I 


Procedure]   EXCEPTION  OF  PERSONS  FLEEING  FROM   JUSTICE.  §   886 

[e]     How  pleaded  or  raised. 

Defendant  cannot  by  demurrer  set  up  the  statute  of  limitation  when  the 
complainant  fails  to  negative  that  defense;  non  constat  but  that  at  the 
trial  it  may  appear  he  was  fleeing  from  justice. is  But  he  may  give  evi- 
dence touching  it  at  the  trial,  or  may  raise  it  by  special  plea.i"  If  he 
plead  specially  the  government  may  reply  that  he  was  fleeing  from  jus- 
tice.18  Demurrer  has,  however,  been  sustained  where  the  prosecutor  ad- 
mitted that  the  case  was  within  no  exception  to  the  running  of  the  stat- 
ute. 1 9 

§  886.  —  exception  of  persons  fleeing  from  justice. 

Nothing  in  the  two  preceding  sections-  shall  extend  to  any  per- 
son fleeing  from  justice. 

R.  S.  §  1045,  U.  S.  Ctomp.  Stat.  1901,  p.  726. 

This  provision  is  also  from  the  crimes  act  of  1790.3  Fleeing  from  justice 
involves  either  leaving  one's  home,  residence  or  place  of  abode  within  a 
district  or  a  concealment  therein  to  avoid  detection  or  punishment.''  De- 
parture fom  the  district  of  the  offense  to  ofl"ender's  usual  place  of  abode 
where  to  avoid  punishment,  is  a  fleeing  from  justice. 5  A  person  who  takes 
himself  out  of  the  jurisdiction  to  avoid  being  brought  to  justice  is  a  person 
fleeing  from  justice. 6  It  is  none  the  less  so  though  prosecution  has  not  yet 
begun,  and  though  the  party  is  really  fleeing  from  the  justice  of  the  State 
having  jurisdiction  over  the  same  place  and  act.^  It  is  not  necessary  that 
the  accused  be  found  within  the  limit  of  another  jurisdiction. s  But  con- 
tinuing on  a  whaling  cruise  after  an  offense  is  not  a  fleeing  from  justice; 9 
neither  is  involuntary  imprisonment  in  a  foreign  jail,  where  the  offense 
was  on  board  ship  and  the  offender  never  within  the  district  having  juris- 
diction to  try  him. 10     A  party  cannot  demur  to  an  indictment  showing  an 

isUnited  States  v.  Cook,  17  Wall,  the  ofl'ense  was  committed  within  the 

168,    21    L.    ed.    538;    United    States  statutorv   period:    United    States   v. 

v.   White,   5  Cranoh,  C.   C.   116,  Fed.  Francis,'l44  Fed.  520. 

Cas.     No.     16,675,     16,677;      United  2Ante,  §§  884,  885. 

States   V.    Brown,   2   Low.    208,    Fed.  3 Act  April  30,   1790,  c.  9,  §   32,   1 

Cas.    No.    14,665.     See    12    Am.    Law  Stat.  119. 

Reg.     (N.    S.)     682    note.      But    see  4United  States  v.  O'Brian,  3  Dill. 

United  States  v.  Watkins,  3  Cranch.  381,  Fed.  Cas.  No.  15,908. 

C.  C.  441,  Fed.  Cas.  No.  16,049;  Unit-  sUnited  States  v.  White,  5  Cranch 

ed  States  v.  Sthorev,  9  Int.  Rev.  201,  C.  C.   116,  Fed.  Cas.  No.   16.677. 

Fed.  Cas.  No.  16,280.  eStreep  v.  United  States,  160  U.  S. 

iTlbid.  133,  40  L.  ed.  365,  16  Sup.  Ct.  Rep. 

isSee  Judge  Dillon's  note  to  Unit-  244. 

ed  States  v.  O'Brian,  3  Dili,  381,  Fed.  Ubid. 

Cas.    No.    15,908.      See    also    United  sPorter  v.  United  States,   91   Fed. 

States    V.    Shorev,    9    Int.    Rev.    201,  494,  33  C.  C.  A.  652. 

Fed.  Cas.  No.  16,280.  sUnited   States   v.    Brown,   2    Low. 

laUnited  States  v.  Owen.  13  Sawy.  267,  Fed.  Cas.  No.  14,665. 

57,  32  Fed.  536.     A  general  verdict  of  loUnitod    States    v.    Hewecker,    79 

guilty  after   plea  of   not  guilty   will  Fed.  60. 
be  deemed  to  include  a  finding  that 

827 


§   887  TIME  FOR  COMMENCEMKNT  OF  ACTIONS.  [Code   Fed. 

oflfense  three  years  old,  since  it  may  be  within  the  exception  sta-ted  in  the 
above  provision.^! 

§  887.     Exception  of  parties  beyond  reach  of  process  during  Re- 
bellion. 

In  all  cases  where,  during  the  late  rebellion,  an}'  person  could 
not,  by  reason  of  resistance  to  the  execution  of  the  laws  of  the 
United  States,  or  of  the  interruption  of  the  ordinary  course  of 
judicial  proceedings,  be  served  with  process  for  the  commencement 
of  any  action,  civil  or  criminal,  which  had  accrued  against  him, 
the  time  during  which  such  person  was  beyond  the  reach  of  legal 
process  shall  not  be  taken  as  any  part  of  the  time  limited  by  law  for 
the  commencement  of  such  action. 

R.  S.  §  1048,  U.  S.  Comp.  Stat.  1901,  p.  728. 

This  provision  was  enacted  in  1864,12  and  is  in  accordance  with  the  gen- 
eral principle  of  law  which  declares  statutes  of  limitation  suspended  during 
war.  13     Being  applicable  in  terms  only  to  the  civil  war,  it  is  now  obsolete 

§  888.     Time  for  prosecution  of  crimes  under  revenue  and  slave 
laws. 
No  person  shall  be  prosecuted,  tried  or  punished  for  any  crime 
arising  under  the  revenue  laws,  or  the  slave-trade  laws  of  the  United 
States,  unless  the  indictment  is  found  or    the  information  is  in- 
stituted within  five  years  next  after  the  committing  of  such  crime. 
R.  S.  §  1046,  U.  S.  Comp.  Stat.  1901,  p.  726. 

This  provision  is  from  enactments  of  1804  and  1818.15  It  no  longer 
applies  to  crimes  under  the  internal  revenue  laws.is  Revenue  laws  are 
those  made  for  direct  and  avowed  purposes  of  creating  revenue  or  public 
funds  for  services  of  government.i"  The  act  establishing  the  postal  money 
order  system  is  not  suoh  an  act  and  embezzlement  forbidden  by  the  11th 
section  thereof  is  Avithin  R.  S.  §  1044,  and  not  this  section. is  Counter- 
feiting is  not  a  crime  against  the  revenue  laws.ia     But  an  embezzlement 


iiUnited  States  v.  Brace,  143  Fed.  i6Post§  888.    Formerly  it  did.   See 

703.  14   Op.    Attv.    Gen.    81 ;  ^and    United 

i2Act   June    11,    1864,    c.    118,    13  States    v.    Wright.    3   Pittsburg    192, 

Stat.  123.  Fed.    Cas.   No.    16.770,   where   offense 

i3Hanger  v.  Abbott,   6  Wall.   542.  was  illicit  distilling. 

18  L.  ed.  939.     See  also  Levy  v.  Stew-  I'United   States   v.   Norton,   91   U. 

art,  11  Wall.  254,  20  L.  ed."86;  Stew-  S.  .569,  23  L.   ed.  454. 

art  V.  Kaihn.  11  Wall.  506.  20  L.  ed.  isUnited   States   v.   Norton,   91   U. 

176;  United  States  v.  Wiley,  11  Wall.  S.  569,  23   L.   ed.  454. 

515.  20  L.  ed.  211.  isUnited   States   v.    Shorey,  9  Int. 

i5Act   March  2Q,   1804,  c.  40,   §   3,  Rev.  202,   Fed.  Cas.  No.  16,281. 
2  Stat.  290;  act  April  20,  1818,  c.  91, 
§  9,  3  Stat.  452. 

828 


■ 


Procedure]  FOR  SEDUCTION  OF  FEMALE  PASSENGER  §  800 

indictment  under  an  act  of  1846  for  the  collection,  safe  keeeping,  etc.,  of  the 
public  revenue  is  within  this  provision.20  So  also  smuggling  is  clearly 
an  offense  against  the  revenue  laws.i  And  while  a  prosecution  for  false 
entry  at  the  custom  house  under  R.  S.  §  5445,  is  an  offense  against  the 
revenue  laws,2  a  conspiracy  under  R.  S.  §  5440  to  defraud  the  customs  by 
such  false  entry  within  R.  S.  §  5445,  is  not  so  regarded.3 

§  889.  — of  crimes  under  internal  revenue  laws. 

Xo  person  shall  be  prosecuted,  tried  or  punished  for  any  of  the 
various  offenses  arising  under  the  internal  revenue  laws  of  the 
United  States  unless  the  indictment  is  found  or  the  information 
instituted  within  three  years  next  after  the  commission  of  tlie 
offense,  in  all  cases  where  the  penalty  prescribed  may  be  imprison- 
ment in  the  penitentiary,  and  within  two  years  in  all  other  cases : 
Provided,  That  the  time  during  which  the  person  committing  the 
offense  is  absent  from  the  district  wherein  the  same  is  committed 
shall  not  be  taken  as  any  part  of  the  time  limited  by  law  for  the 
commencement  of  such  proceedings;  Provided  further,  that  tlie 
provisions  of  this  act  shall  not  apply  to  offenses  committed  prior 
to  its  passage;  and  provided  further,  that  where  a  complaint  shall 
be  instituted  before  a  Commissioner  of  the  United  States  within 
the  period  above  limited,  the  time  shall  be  extended  until  the  dis- 
charge of  the  grand  jury  at  its  next  session  within  the  district : 
and  provided  further,  that  this  act  shall  not  apply  to  offenses  com- 
mitted by  officers  of  the  United  States. 

§   1  of  act  July  5,  1884,  c.  225,  23  Sta/t.  122,  U.  S.  Comp.  Stat.  1901.  p 
726. 

Prior  to  this  enactment  R.  S.  §  10466  applied."  -Since  the  date  of  filing 
complaint  before  a  commissioner  becomes  material  under  this  section,  it  is 
proper  for  a  clerk  making  up  the  final  record  in  such  a  case  to  embody 
.such  a  paper  and  charge  therefor.  8 

§  890.  —  of  offense  of  seduction  of  female  passenger. 

No  conviction  shall  be  had  [for  seduction  of  a  female  passenger 
by  the  master  officer,  seaman  or  other  employee  on  a  vessel]     .     ,     . 

20Collier's  Case,  6  Op.  Atty.  Gen.  States  v.  Dustin,  15  Int.  Rev.  30  Fed. 

103.  Cas.    No.    15,012;     United    States  v. 

lUnited    States   v.    Shorev,    9   Int.  Fehrenback,  2  Woods,  175,  Fed.  Cas. 

Rev.  202,  Fed.  Cas.  No.  16."28'2.  No.  15.083. 

2United   States  v.  Hirsch.    100   U.  sAnte,  §  887. 

S.  .33,  25  L.  ed.  539.  ^Taylor  v.  United   States   45   Fed. 

3United   States   v.    Hirsch.    100  U.  541. 

S.  33,  25  L.  ed.  539 ;  United  States  v.  sTaylor  v.  United  States,  45  Fed. 

Owen,  32  Fed.  534;  contra,  see  United  541. 

829 


§   &91  TIME  FOR  COMMENCEMENT  OF   ACTIONS.  [Code   Fed. 

unless  the  indictment  is  found  witliin  one  year  after  the  arrival  of 
the  vessel  on  which  the  offense  was  committed  at  the  port  for  which 
it  was  destined. 

R.  S.  §  5351,  U.  S.  Comp.  Stat.  1901,  p.  3G33. 

The  section  also  provides  that  no  conviction  shall  be  had  solely  on  the 
testimony  of  the  seduced  female. 

§  891.  —  of  prosecutions  for  violations  of  naturalization  law. 

No  person  shall  be  prosecuted,  tried  or  punished  for  any  crime 
arising  under  the  provisions  of  this  act  unless  the  indictment 
is  found  or  the  information  is  filed  within  five  years  next  after 
the  commission  of  such  crime. 

§  24  act  June  29.  1906,  c.  3592,  34  Stat.  606. 

§  892.  —  of  suits  against  carriers  under  Employers  Liability  Act 
of  1906. 

No  action  shall  be  maintained  under  this  act  [i.  e.,  act  making 
carrier  liable  for  negligence  notwithstanding  contributory  negligence 
of  employee],  unless  commenced  within  one  year  from  the  time 
the  cause  of  action  accrued. 

§  4  of  act  June  11,  1906,  c.  3073,  34  Stat.  232. 

§  893.  —  of  infringement  suits. 

Prior  to  July  8.  1870,^  Congress  made  no  provision  regarding  the 
time  within  which  suits  for  infringement  of  patents  must  be 
brought,  other  than  the  general  provision  making  State  laws  the 
rule  of  decision  in  cases  where  they  applied.^  The  provision  enacte'l 
in  1870  M^as  omitted  from  the  Eevised  Statutes,  and  it  was  not 
antil  an  act  of  March  3,  1897.  amending  R.  S.  §  4921,  that  a  uni- 
form Federal  rule  upon  the  subject  again  came  into  operation. ^  In 
the  interim  State  statutes  of  limitation  applied,  and  still  apply  to 
suits  for  infringement  of  copyright. 
Author's  section. 

There  was  a  conflict  among  the  Federal  cases  at  circuit  regarding  the 
applicability  of  State  statutes  of  limitation  to  actions  at  law  for  infringe- 
ment of  patent,  some  holding  tliat  they  did  not  apply,  and  that  there  was 

lAct  July  8,  1870,  c.  230,  §  55,  16  March   3,  1897.  c.   .Wl.   §  6.  29  St'H. 

Stat.  206.  692.      This   went    into   effect   Jar.    1, 

2Ante,  §  12.  1898;  U.  S.  Comp.  Stat.  1901,  p.  23So, 

3R.    S.    §    4921,    as    amended    act  3395.     See   post,   §   1170. 

830 


Procedure] 


FOR    PATENT    INFRINGEMENT. 


893 


no  ppriod  of  limitation  at  all,*  and  others  maintaining  that  the  State  law 
governed. 5  The  latter  view  was  finally  established  by  a  Supreme  Court  de- 
cision.6  In  equity  the  State  law  did  not  apply  and  the  only  bar  recognized 
was  the  ordinary  equity  rule  of  laches.7  R.  S.  §  4921  now  governs  as  to 
patents,  both  at  law  and  in  equity.*  Actions  for  infringements  of  copy- 
rights, when  not  regarded  as  suits  to  recover  a  penalty  or  forfeiture  are 
governed  ■^j  State  statutes  of  limitation. 9 


4  See  Anthony  v.  Carroll,  2  Ban.  & 
A.  195,  Fed.  Cas.  No.  487;  Wood  v. 
Cleveland  R.  M.  Co.  4  Fish  Pat.  Cas. 
550.  Fed.  Cas.  No.  17.941;  Collins  v. 
Peebles,  2  Fish.  Pat.  Cas.  541,  Fed. 
Cas.  No.  3,017;  Brickill  v.  Hartford, 
49  Fed.  372;  California  A.  S.  P.  Co. 
v.  Starr.  48  Fed.  560. 

sRich  V.  Ricketts,  7  Blatchf.  230, 
Fed.  Cas.  No.  11.762;  Parker  v.  Hal- 
lock,  2  Fish  Pat.  Cas.  543,  Fed.  Cas. 
No.  10,735;  Havden  v.  Oriental  Mills, 
15  Fed.  605. 

eCampbell  v.  Haverhill,  155  U.  S. 
610,  39  L.  ed.  280,  15  Sup,  Ct.  Rep. 
217. 


TLeggett  V.  Standard  0.  Co.  149  U. 
S.  294,  37  L.  ed.  737,  13  Sup.  Ct.  Rep. 
902;  Lane,  etc.  Co.  v.  Locke,  150  U. 
S.  200,  37  L.  ed.  1049.  14  Sup.  Ct. 
Rep.  78;  Keves  v.  Eureka  M.  Co. 
158  U.  S.  153,'  39  L.  ed.  929,  15  Sup. 
Ct.  Rep.  772;  Richardson  v.  Os- 
borne. 93  Fed.  828,  36  C.  C.  A.  610; 
Boston,  etc.  Rv.  v.  Bemis  C.  B.  Co. 
98  Fed.  121,  38  C.  C.  A.  661. 

8 Post,  §  1170.  American  P.  T.  Co, 
V.  Pratt,  106  Fed.  229. 

sBradv  v.  Daly,  175  U.  S.  158,  44 
L.  ed.  109,  20  Sup.  Ct.  Rep.  66. 


831 


CHAPTER  24. 

PROCEDURE  IN  COMMON  LAW  CAUSES. 

§  900.     Federal    procedure    in    common    law    causes    ^o    conform    to    State 
procedure. 
Writs  and  process  in  common  law  causes. 
Parties  in  common  law  cause. 
Pleading  in  common  law  causes. 
Provisional  and  other  remedies  in  jreneral. 
— remedies  by  attachment  and  garnishment  the  same  as  la  State 

courts. 
— State  law  as  to  dissolution  of  attachment  applies. 
— attachment  against  national  banks. 
— replevin  and  statutory  substitutes  therefor. 
Ejectment  and  statutory  substitutes  therefor. 
Right  of  trial  by  jury  guaranteed. 
Issues  of  fact  in  district  court  triable  by  jury. 
Issues  of  fact  in  circuit  court  triable  by  jury. 
Certain  issues  of  fact  in  Supreme  Court  triable  by  jury. 
Waiver  of  jury  in  circuit  court. 
Reference  of  questions  of  fact. 
Impaneling  of  jury. 
Mode  of  proof  in  common  law  actions. 
Direction  of  verdict  and  demurrer  to  evidence. 
Continuance,  dismissal  and  non-suit. 
Instructions  and  verdict. 
Judgment  and  costs. 

The  taking  of  objections  and  exceptions. 
Power  to  grant  new  trial  in  jury  cases. 

Stay  of  execution  on  new  trial — new  trial  where  jury  waived. 
Remedies   on   Federal   judgments   by   execution,   etc.,   furnished  by 
State  laws. 

§  900.  Federal  procedure  in  common  law  causes  to  conform  to 
state  procedure. 
The  practice,  pleadings  and  forms  and  modes  of  proceedingf^^'''^^ 
in  civil  causes,  other  than  equity  and  admiralty  causes, '^'^^  in  tho 
circuit  and  district  courts,  shall  conform,  as  near  as  may  be/^^"-^^ 
to  the  practice,  pleadings  and  forms  and  modes  of  proceeding  exist- 

832 


§ 

901. 

§ 

902. 

§ 

903. 

§ 

904. 

§ 

905. 

§ 

906. 

§ 

907. 

§ 

908. 

§ 

909. 

§ 

910. 

§ 

911. 

§ 

912. 

§ 

913. 

§ 

914. 

§ 

915. 

§ 

916. 

§ 

917. 

§ 

918. 

§ 

919. 

§ 

920. 

§ 

921. 

§ 

922. 

§ 

923. 

§ 

924. 

§ 

925. 

Procedure-]  PROCEDURE    IN    COMMON-LAW   CAUSES.  §  900   [a] 

iiig  at  the  time  in  like  caiises'^'^^  in  the  courts  of  record  of  tlie  State 
within  which  such  circuit  or  district  courts  are  held,  any  rule  of 
court  to  the  contrary  notwithstanding^'^ 
R.  S.  §  914,  U.  S.  Comp.  Stat.  190],  p.  684. 

R.  S.  §  914,  U.  S.  Comp.  Stat.  1901,  p.  — . 
[a]     History  and  general  effect  of  the  successive  conformity  provisions. 

The  temporary  process  act  of  17891  declared  that  •'until  farther  provi- 
sion shall  be  made,  and  except  where  by  this  act,  or  other  statutes  of  the 
United  States,  it  is  otherwise  providcnl,  the  forms  of  writs  and  executions, 
except  their  style,  and  modes  of  process,  in  the  circuit  and  district  courts 
in  suits  at  common  law,  shall  be  the  saine  in  each  State,  respectively,  as 
are  now  used  in  the  supreme  courts  of  the  same."  This  provisions  was  con- 
tinued by  an  act  of  17902  and  made  permanent  by  an  act  of  1792.S  The 
act  of  1792,  however,  sulistituted  for  the  words  "and  modes  of  process,"  the 
words  "and  the  forms  and  modes  of  proceeding;"  and  added  a  proviso  mak- 
ing the  adoption  of  the  State  law  "subject,  however,  to  such  alterations 
and  additions  as  the  said  courts  respectively  shall,  in  their  discretion,  deem 
expedient,  or  to  such  reoulations  as  the  Supreme  Court  of  the  United  States 
shall  think  proper,  from  time  to  time,  by  rule,  to  jjrescribe  to  any  circuit 
or  district  court  concerniim-  the  same."  The  Supreme  Court  in  two  leading 
cases*  sustained  the  power  of  Congress  to  delegate  this  quasi  legislative 
power  to  tlie  courts  and  declared  it  proper  for  the  Federal  courts  there- 
under, to  adopt  by  rule,  changes  in  the  State  law  subsequent  to  the  pas- 
sage of  the  process  act;  and  even  changes  in  the  state  law  as  to  exemptions 
from  execution. 5  The  act  of  1792  was  not  broad  enough  however  to  apply 
to  States  subsequently  admitted  to  the  Union.  There  was  a  special  act  of 
1824  which  applied  to  the  State  of  Louisiana; 6  and  a  general  act  of  1828^ 
which  applied  to  all  States  admitted  to  the  Union  after  1789  and  which 
adopted  their  practice  as  existing  in  1828,  with  power  in  the  Supreme  and 
circuit  and  district  coiu'ts  to  vary  the  same  by  rule.  This  law  of  1828  was 
reenacted  in  1842,^  It  made  no  ]u-ospective  provision  for  States  subsequent- 
ly to  be  admitted;  but  a  i;iovision  in  a  later  admission  act  that  "all  the 
laws  of  the  United  States  which  are  not  locally  inapplicable,  shall  have 
the  same  force  and  effect"  within  the  new  State  as  in  the  old  ones,  was 
declared  effective  to  adopt  this  process  act. 9 

lAct  Sept.  29.  1789,  c.  21.  73();  Moncure  v.  Zunts,  11   Wall.  421, 

2Act  May  26,  1790.  422,  20  L.  ed.  181. 

sActMay  8,  1792,  c.  1.37.  niay   19,    1828.   §    1,   e.  68,  4  Stat. 

■iWayman  v.  Southard,  10  Wheat.  278;    see  Beers  v.   Ilaughtmi,   9   Pet. 

1,   6  L.   ed.   20.3.;    Bank   of   U.    S.   v.  361,  9  L.  ed.  157. 
Halstead,  10  Wheat.  51,  6  L.  ed.  264.        sAct   Aug.    1,    1842,  c.   — .  5   Stat. 

sBank    of    U.     S.    v.   Halstead,    10  499. 
Wheat.  51,  6  L.  ed.  264.  sSmith    v.    Cockrill,    G    Wall.    756, 

6Act  :Mav  26,  1824,  c.  ISl ;  see  Par-  IS  L.  ed.  973,  974. 
sons  V.  Bedford,  3  Pet.  444,  7   L.  ed. 
Fed.  Proc— 53.                                  833 


§   •■Hiit   |;iii|  i'KOCKDUUB  IN   COMMON-LAW  CAUSES.  [Code    Fed. 

[aaj     Changes  wrought  by  present  law  and  their  object. 

7'he  next  and  last  general  enactment  upon  the  subject  was  contained  in 
the  law  of  1872,12  and  is  still  in  force  as  R.  S.  §  914,  supra.  The  earlier 
laws  all  adopted  the  State  practice  as  existing  at  a  designated  time,  and 
although  the  courts  had  a  discretion  to  make  changes  therein  to  conform 
to  later  laws  such  later  enactments  were  not  in  force  unless  so  adopted.is 
The  law  of  1872  was  the  first  to  require  Federal  procedure  to  conform  to 
the  State  procedure  "'existing  at  the  time  in  like  causes  in  the  courts  of 
record  of  the  (State."  A  change  in  State  procedure  is  now  operative  in  (he 
Federal  courts  immediately  if  at  all;i4  and  the  power  to  make  rules  is 
thus  restricted.! 5  In  the  main  R.  S.  914  is  obligatorj'is  and  peremptory.i' 
Its  manifest  purpose  was  to  secure  a  stricter  conformity;  and  it  was  es- 
pecially effective  to  that  end  in  the  older  States  where  the  Federal  courts 
had  often  resisted  the  innovations  of  the  reformed  procedure  and  thus 
compelled  practitioners  to  studj'  two  distinct  systems  of  remedial  law. is 
The  effect  of  R.  S.  §  914,  upon  various  phases  of  a  proceeding  at  common 
law  is  considered  in  subsequent  sections  of  the  code.  There  is  a  provi- 
sion of  law  requiring  procedure  in  condemnation  suits  brought  by  the 
United  States  to  conform  to  the  local  practice. 1 9  Under  R.  S.  §  914,  the 
Federal  courts  take  judicial  notice  of  the  local  State  law  of  procedure  and 
of  decisions. 2  0 

[b]     Validity  and  general  scope. 

The  power  of  Congress  to  prescribe  the  procedure  in  Federal  courts,  is 
well  settled  and  very  broad. 3  And  while  the  method  of  delegating  to  the 
courts  themselves  a  partial  exercise  of  the  power,  is  unusual,  it  has  l)een 
amply  sustained  and  cannot  be  regarded  as  open  to  question.*  State  l-aws 
as  to  procedure  cannot,  in  and  of  themselves,  have  any  force  or  vigor  in 
Federal  courts. 5  They  are  only  operative  when  adopted  by  Congress  or  by 
rules  of  the  courts  themselves. 6  And  the  Federal  courts  do  not  coTisider 
themselves  absolutely  bound  by  State  decisions  construing  procedure  laws;^ 

i2Act  June  1,  1872.  c.  255.  17  Stat,  liams,  3  Biss.  370,  Fed.  Cas.  No.  11,- 

197.  707. 

isBronson  v.  Kinzie,   1   How.  315,        laPost,  §  13S0. 
11  L.  ed.  143;   Riggs  v.  Johnson  Co.        20Wilder  v.  United  States,  143  Fed. 

6  Wall.  191,  195,  18  L.  ed.  768.  433,   (C.  C.  A.) 

i4Rosenbach    v.    Dreyfuss,    2    Fed.        3 Ante,  §  799. 
23;  Hudson  v.  Parker, 'l5G  U.  S.  281,        ^Wayman  v.   Southard.   10  Wheat. 

39  L.  ed.  425,  15  Sup.  Ct.  Rep.  452;  1,  6  L.  ed.  253;  Bank  of  U.  S.  v.  Hal- 

Osborne  v.  Detroit,  28  Fed.  .385.  stead,    10   Wheat.   51.   6  L.  ed.   264; 

15 Ante,  §  805 [a];  infra,  note[i].  Beers   v.  Haughton,  9  Pet.   359.  9  L 

islndianapolis,  etc.  R.  R.  v.  Horst,  ed.  145. 
93  U.  S.  300,  23  L.  ed.  898.  sParsons    v.    Bedford,    3  Pet.    444, 

i7Amv   v.    Watertown,    130    U.    S.  7   L.   cd.   736:    Bronson  v.   Kinzie,   1 

304,  32  ^L.   ed.  946,   9   Sup.  Ct.   Rep.  How.    314,    11    L.    ed.    143;    see   also 

530;   but  see  infra,  note   [g].  ante,  §  5  [a]. 

IS  See  Nudd  v.   Barrows,  91   U.   S.        6  Beers    v.    Haughton,    9   Pet.    ;5i59, 

441,  442,  23  L.  ed.  289,  290;  Baltimore  9  L.  ed.   145. 

&  0.  R.  R.  V.  Hamilton,  16  Fed.  183;         ^See  Lafayette  B.   Co.  v.  Streator, 

Carlisle  v.  Cooper,  64  Fed.  475,  12  C.  105   Fed.    729:    Van   Doren    v.    Pcnn- 

C.  A.  235;  Republic  Ins.  Co.  v.  Wil-  sylvania  R.  R.  93  Fed.  260,  35  0.  C. 

834 


1 


Procedure] 


PROCEDURE    IN    COMMOX-LAW    CAUSES. 


§  900    [c] 


nor  by  State  decisions  interpreting  common-law  remedies. 8  Furthermore 
this  section  requires  conformity  only  in  procedure.^  It  does  not  require 
i-onformity  to  State  practice  when  the  essential  question  is  one  of  ju- 
risdiction and  not  of  procedure; lo  nor  does  it  apply  to  the  mode  of  obtain- 
incr  jurisdiction  of  the  person. n  It  does  not  require  Federal  courts  to  re- 
nounce jurisdiction  lawfully  conferred  by  Congress. 12  It  applies  only  if 
the  court  has  jurisdiction.! s  It  does  not  attempt  to  prescribe  the  sub- 
stantive rules  of  law  which  are  to  control  the  court's  decisions.i*  That 
is  governed  by  another  provision  and  by  other  principles  and  is  elsewhere 
considered.-  5 

[c]     Applicable  only  to  civil  causes  other  than  of  equity  or  admiralty. 

The  earlier  process  acts  required  conformity  in  '■common-law  causes"  eo 
nomine. 19  It  does  not  seem  that  the  present  law  was  intended  to  include 
any  causes  other  than  those  of  a  common-law  character."2o  The  substitu- 
tion of  the  phrase  "in  civil  causes  other  than  equity  and  admiralty"  is 
effective  to  include  causes  of  a  common  law  character  which  might  strictly 
not  be  deemed  common  law  causes  because  in  fact  not  existent  at  common 
law.  Thus  suits  for  penalties  and  other  rights  of  action  based  upon  Fed- 
eral statutes  are  within  R.  S.  §  914,  although  they  did  not  exist  at  com- 
mon law.i 

The  distinction  between  law  and  equity  is  fundamental  in  Federal  prac- 
tices  and  numerous  cases  have  affirmed  the  inapplicability  in  Federal 
courts,  of  State  laws  as  to  equity  procedure.*  State  laws  as  to  criminal 
procedures  and  as  to  practice  in  admiralty,  would  be  equally  inapplicable. « 
Both  in  equity  and  admiralty  the  practice  and  procedure  of  Federal  courts 
are  uniform  throughout  the  United   States."     The  fact  that  a  State  has 


A.  282:  Wall  v.  Chesapeake  R.  R.  9.5. 
Fed.  39S.  37  C.  C.  A.  129:  ante,  § 
10  [1]  et  seq. 

sSanford  v.  Portsmouth.  2  Flipp. 
105.  lOS.  Fed.  Cas.  No.  12,315;  but 
s€e  Tnvlor  v.  Brigham,  3  Woods.  377, 
Fed.  Cas.  No.  13.781. 

nVells  v.  Clark.  136  Fed.  464. 

loCompare  ante,  §  8.53 fb]. 

iiWeils  v.  Clark.  136  Fed.  462. 

i2Phelps  v.  Oaks,  117  U.  S.  239, 
29  L.  ed.  888,  6  Sup.  Ct.  Rep.  714: 
Coffev  V.  United  States  116  U.  S.  427, 
29  L.  cd.  681,  6  Sup.  Ct.  Rep.  432. 

isColdev  v.  Morning  News,  156  U. 
S.  .524.  .39L.  ed.  517.  15  Sup.  Ct.  Rep. 
559. 

nWavman  v.  Southard,  10  Wheat. 
1.  6  L. 'ed.  253:  Fitch  v.  Creighton. 
24  How.  162.  16  L.  ed.  596. 

15 Ante,  §§  10-12. 

isSupra,  note[a]. 

2  0The  Blanche  Page,  16  Blatchf.  5, 
Fed.  Cas.  No.  1,524:   Steaim  S.  C.  v. 


Sears,  9  Fed.  9,  20  Blatchf.  23;  San- 
word  V.  Portsmoiith.  2  Flip.  105.  6 
Cent.  L.  .7.  147,  Fed.  Cas.  No.  12,315. 

1  Campbell  v.  Haverhill,  155  U.  S. 
610.  39  L.  ed.  280,  15  Sup.  Ct.  Rep. 
217;  Edmunds  v.  Illinois  Cent.  R. 
R.  80  Fed.  78,  8.5. 

sAnte,  §  800. 

•iBoyle  v.  Zacharie,  6  Pet.  658,  S 
L.  ed.  .527:  Storv  v.  Livingston.  13 
Pet.  368,  369,  lO  "L.  ed.  200;  Russell 
V.  Southard.  12  How.  147,  13  L.  ed. 
927;  Betts  v.  Ivewis.  19  How.  73.  15 
L.  ed.  576:  Davis  v.  Davis,  72  Fed. 
84.  18  C.  C.  A.  438.. 

5 United  States  v.  Wallace,  46  Fed. 
•570:  United  Stat<^  v.  Gardiner,  IS 
Int.  Rev.  46,  Fed.  Cas.  No.  15,187. 

6Laidlaw  v.  O.  R.  &  N.  Co.  81  Fed. 
S7'6,  879,  26  C.  C.  A.  665,  and  cases 
cit-ed :  The  Chusan,  2  Story,  455  Fed. 
Cas.  No.  2.717. 

7  Ante,  §  5  [b]. 


833 


§  900   [d] 


PROCEDURE   IN   COMMON-LAW   CAUSES. 


[Code  Fed. 


adopted  the  reformed  procedure,  abolishing  the  distinction  between  law  and 
equity,  does  not  permit  any  such  blending  of  legal  and  equitable  proceed- 
ings in  the  Federal  courts. s  The  distinction  persists  in  the  Federal  courts, 
which  will  conform  to  the  State  reform  procedure  only  in  actions  upon  the 
law  side.  Various  other  consequences  of  the  fact  that  conformity  is  re- 
(juired  only  as  the  law  side  are  elsewhere  discussed.9 

[d]     — inapplicable  to  procedure  for  obtaining  review. 

The  mode  of  appealing  a  case  in  the  Federal  court  is  not  required  to 
conform  to  the  State  practice  upon  that  subject.  12  The  manner  and  time 
of  taking  the  proceedings  which  constitute  the  foundation  of  the  right  of  re- 
view are  regulated  by  Congress  and  are  not  governed  by  the  local  practice. 1 3 
The  bill  of  exceptions  in  the  Federal  court  should  conform  to  the  Federal. i^ 
and  not  to  the  local  State  practice. 1 5  The  State  law  as  to  the  time  for  fil 
ing  the  bill  has  no  application ;i6  nor  as  to  the  mode  of  settling  it.i'  It 
seems,  however,  that  the  Federal  court  may  adopt  the  local  practice  as  to 
time  of  signing  a  bill  of  exceptions. i"?  Where  jury  has  been  waived,  the 
mode  of  securing  review  is  not  governed  by  the  State  law.is  The  right 
of  review  is  not  governed  by  State  law  and  a  rule  adopting  a  State  law 
denying  the  right  in  a  given  case  is  void. 20  The  Federal  courts  determine 
for  themselves  whether  a  judgment  is  final  for  purposes  of  appeal  regard- 
less of  the  local  practice.i  Nor  are  they  bound  by  the  local  law  respectinix 
the  proper  time  and  mode  for  taking  exceptions,  but  follow  their  own  rules 
upon  that  subject. 2     So  the  procedure  on  motion  for  new  trial  is  not  re- 


sSee  ante,  §  5[b].  717,  44  C.   C.  A.  597;   Van   Stone,  v. 

sAnte,  §  800[a],  [b].  Stilwell,  142  U.  S.  133,  .35  L.  ed.  9B1. 

i2Bavard  v.  Lombard,  9  How.  551.    12  Sup.  Ct.  Rep.  181;   United  States 


13  L.  ed.  245;  Graliam  v.  Bayne,  18 
How.  61,  15  L.  ed.  265;  Hudgins  v. 
Kemp,  IS  How.  5.3Y,  15  L.  ed.  514; 
Fleitas  v.  Richardson,  147  U.  S.  545, 
37  L.  ed.  272,  13  Sup.  Ct.  Rep.  429; 
Hudson  V.  Parker,  156  U.  S.  281,  39 
L.  ed.  424,  15  Sup.  Ct.  Rep.  450:  West 
V.  East  C.  Cedar  Co.  113  Fed.  741. 
51   C.  C.  A.  411. 

isin  re  Chateaugav,  etc.  Co.  128 
U.  S.  533,  32  L.  ed.  508,  9  Sup.  Ct. 
Rep.   150;   Andes  v.   Slauson.   130  U. 


Indian  Grave  Dist.  85  Fed.  9.30.  29 
C.  C.  A.  578. 

isSee  Richmond,  etc.  R.  R.  v.  Mc- 
Gee,  .50  Fed.  907.  2  C.  C.  A.  81: 
New  Vork,  etc.  R.  R.  v.  Hvde,  56  Fed. 
189,  190,  5  C.  C.  A.  461. 

i^In  re  Cliateugiv  Iron  Co.  128 
U.  S.  5.53,  .32  L.  ed. '.508,  9  Sup.  Ct 
Rep.  150. 

i^See  United  Stat-es  v.  Breitling, 
20  How.  253,  254,  15  L.  ed.  900. 

isKentuckv  Ins.   Co.  v.  Hamilton. 


S.  4.38,  32  L.  ed.  991,  9  Sup.  Ct.  Rep.  63  Fed.  98,  11  C.  C.  A.  42. 
574;  Lees  v.  United  States.  1.50  U.  S.        20  Am  is  v.   Smith,   16  Pet.   314,   10 

482.  37  L.  ed.  1152,  14  Sup.  Ct.  Rep.  L.   ed.   973.     The   :\Iissouri   rule  that 

165;  Shipman  v.  Ohio  C.  Ex.  70  Fed.  filing  of  amended  petition  in  coinpli- 

654.  17  C.  C.  A.  313.  ance  with  an  erroneous  ordei-.  wai\<'s 

i^See  post,  §  1932.  the  error,  is   not  binding;     WilHnni- 

loSee  Lees  v.  United  States,  150  \J.  son    v.    Liverpool,    etc.    Ins.    C.i.    141 

S.   482,   37   L.   ed.   1152,   14  Sup.   Ct.  Fed.  54  (C.  C.  A.) 
Rep.    165;    Manning   v.    German    Ins.        lElder  v.  MoClaskev.  70   Fed.  556. 

Co.    107    Fed.   55,    46   C.   C.   A.    144;  17  C.  C.  A.  251. 


Prt^ble  V.  Bates,  40  Fed.  746;  Tullirs 
V.  Lake  Erie  Co.  105  Fed.  557.  44  C. 
C.  A.  597;  Prichard  v.  Budd,  76  Fed. 

836 


2St.  Clair  V.  United  States,  154 
['.  S.  153.  3vS  L.  ed.  943,  14  Sup.  Ct. 
Rep.  1010;  Lowrv  v.  Mt.  Adams,  etc. 


Procedure]  PROCEDURE    IN    COMMON-LAW    CAUSES  §   900    [f] 

quired  to  conform  to  the  State  practice,4  althouoli  a  state  law  giving  an 
absolute  right  to  new  trial  in  ejectment,  is  binding  on  the  Federal  courts 
because  a  rule  of  property  and  not  a  mere  mode  of  procedure. 5  The  estab- 
lished Federal  rule  that  the  granting  or  refusing  of  new  trial  rests  in  the 
sound  discretion  of  the  court,  is  not  affected  by  the  conformity  provision.'- 

[e]  —  inapplicable  to  personal  conduct  and  administration  of  judge. 

The  personal  conduct  and  administration  of  the  judge  in  the  discharge 
of  his  separate  functions  is  neither  practice,  pleading,  nor  a  form  nor  mode 
of  proceeding  within  this  section. 9  It  was  not  intended  to  fetter  a  judge 
in  t)ie  jjersonal  discharge  of  his  accustomed  duties,  or  to  trench  upon  com- 
mon law  powers  with  which  in  that  respect  he  is  clothed. lo  The  meaning 
of  these  declarations  of  the  Supreme  Court  can  perhaps  be  best  ascertained 
from  the  cases  to  which  they  have  been  applied.  Thus  the  first  case  assert- 
ing the  principle,  declined  to  hold  a  Federal  judge  bound  by  a  State  law 
forbidding  oral  insti'uctions  to  a  jury  or  any  comment  on  the  facts  by  the 
court  in  the  giving  of  instructions.!  i  Since  then  many  cases  have  followed 
this  rule,  and  it  is  the  general  practice  in  Federal  courts  for  the  judge  to 
comment  upon  the  evidence  in  the  charge  to  the  jury.i2  So  the  Federal 
court  is  not  bound  by  a  State  law  respecting  the  giving  of  special  instruc- 
tions;! 3  or  requiring  the  jury  to  take  the  instructions  with  them  to 
the  jury  room.i^ 

[fj     Conformity  not  required  where  inconsistent  with  other  Federal  pro- 
visions or  principles. 
Conformity  is  not  required  where  the  consequence  would  be  a  violation  of 
specific  Federal  constitutional  or  statutory  provision. 1 9     Congress  requires 

Ry.  68  Fed.  829;  Consumers,  etc.  Co.  nNudd  v.  Barrows,  91  U.  S.  441, 

V.  Ashburn,  81  Fed.  334,  26  C.  C.  A.  23  L.  cd.  289. 

43'6.  1 2 Vicksburg,    etc.    Ry.   v.  Vickers. 

4lndianapolis.  etc.  R.  R.  v.  Horst,  118  U.  S.  .553.  .30  L.  ed.  258.  7  Sup. 

93  U.  S.  291,  301,  23  L.  ed.  898;  New-  Ct.    Rep.    2    S^    Louis,    etc.    Rv.    v. 

comb  V.   Wood.  97  U.   S.   581,  24  L.  Vickers.  122  U.  S.  363,  30  L.  ed.  1161. 

ed.   1085;    Missouri   Pac.  Ry.  v.   Chi-  7  Sup.  Ct.  Rep.  1216. 

cago,  etc.  Rv.  132  U.  S.  191,  33  L.  ed.  i ."Indianapolis,  etc.  R.  R.  v.  Horst, 

309,  10  Sup".  Ct.  Rep.  65.  93   U.   S.  299,  23  L.  ed.  901 ;   United 

5Equator    Co.    v.    Hall,    106    U.    S.  States,   etc.  Assoc,   v.    Barry,   131    V. 

818,  27  L.  ed.  114,  1  Sup.  Ct.  Rep.  128;  S.  120,  33  L.  ed.  66,  9  Sup.  Ct.  Rep. 

Fishbum  v.  Chicago,  etc.  Rv.  137  U.  761 ;    McElwee   v.   Metropolitan,    etc 

S.  60,  34  L.  ed.  585.  11  Sup."Ct.  Rep.  Co.   69    Fed.    319.   16    C.   C.   A.  232; 

8;   Smale  v.  Mitchell.  143  U.   S.   107.  Aetna,  etc.  Co.  v.  Vandecar,  86  Fed. 

36  L.  ed.  90.  12  Sup.  Ct.  Rep.  353.  290,  30  C.  C.  A.  48. 

eNcwcoml)  v.   Wood,   97  U.   S.  581.  i^Nudd  v.   Barrows,  91   U.   S.  426, 

24  L.  ed.  10«5.  23  L.  ed.  286:   Wostern  U.  T.  Co.  v. 

sNudd   V.    Barrows.   91    U.    S.   442,  Burgess.  108  Fed.  32,  47  C.  C.  A.  168. 

23    I-.   ed.     289,     290:    Uiiited    States  i^Swift,  etc.  Co.  v.  Jones.  145  Fed. 

Mut.    Acci.    Assoc,    v.   Barrv,   131    U.  489 ;  Indianapolis,  etc.  R.  R.  v.  Horst, 

S.  120.  33  L.  ed.  60.  9  Sup'.  Ct.  Rep.  93   U.   S.   291,   23  L.   ed.   898;    In   re 

755.  Ohateaugav   Iron   Co.   128  U.   S.  544, 

loUnited  States  Mut.  etc.  Assoc,  v.  32  L.   ed.   508.  9  Sup.  Ct.  Rep.   150; 

Barrv.  131   U.  &\  120,  33  L.  ed.  60,  9  Southern  Pac.  Co.  v.  Denton,  146  U. 

Sui.."^f''t.  RcD.  755.  S.   202,   36   L.    ed.   943,    13   Sup.    Ct. 

837 


§  900   [f]  PROCEDURE   IN   COMMON-LAW   CAUSES.  [Code  Fed. 

tor  instance,  that  Federal  process  be  signed  and  sealed  by  the  clerk;  hence 
State  practice  under  which  the  attorney  signs,  issues  and  serves  the  sum- 
mons, cannot  be  followed  in  that  respect.  20  Again,  the  adoption  of  a  local 
mode  of  proceeding  might  sometimes  deprive  a  party  of  the  right  to  jury 
trial  guaranteed  by  the  Federal  Constitution  and  laws,  and  if  so.  it  cannot 
1)6  followed.  1  Adoption  of  a  local  statute  giving  a  special  appearance  the 
effect  of  a  general  one  might  practically  operate  in  such  a  way  as  to  affect 
or  regulate  the  court's  jurisdiction  and  if  so,  E..  S.  §  914  does  not  require 
it  to  be  followed.2  So.  the  requirement  of  Federal  practice  that  a  party 
plead  specially  to  the  jurisdiction  on  penalty  of  waiver  of  the  alleged  de- 
fect, has  been  held  to  be  unaffected  by  the  requirement  of  conformity. 3 
In  fact  the  conformity  provision  is  invariably  to  be  interpreted  in  strict 
subordination  to  the  principle  that  State  laws  cannot  be  permitted  to 
restrain  or  affect  the  jurisdiction  of  Federal  courts. 4  The  State  practice 
is  adopted  with  reference  to  the  jurisdiction  of  the  circuit  and  district 
courts  as  declared  by  Congress,  and  not  with  a  view  to  limiting  that 
jurisdiction,!^  or  to  enlarging  it.6  The  State  law  as  to  costs  will  not  be 
deemed  adopted  in  so  far  as  such  adoption  would  violate  the  accepted 
principle  of  Federal  jurisprudence  that  costs  shall  not  be  imposed  against 
the  United  States  without  the  consent  of  Congress,  s  The  State  law  re- 
qu'ring  secvu'ity  for  costs  from  a  nonresident  plaintiff"  has  been  applied.9 
T)Ut  the  plaintiff'  has  been  allowed  in  lieu  thereof  to  file  a  certificate  bring- 
ing the  case  under  Pv..  S.  1001. 10 

The  conformity  clause  must  be  harmonized  with  other  provisions  of  the 
Federal  law.  Thus,  R.  S.  §  918  gives  the  Federal  courts  a  considerable 
power  of  making  rules  ji*  and  this  indicates  an  intent  to  permit  them  to 
regulate  the  details  of  business  before  them,  unaff'ected  by  the  conformity 
provision.15  So  far  as  R.  S.  §  812,  and  subsequent  laws  provide  for  the 
summoning  of  Federal  jurors.  Congress  plainly  did  not  intend  to  make 
the  State  laws  applicable  by  virtue  of  R.  S.  §  914.16  The  existence  of 
Federal  statutes  respecting  waiver  of  jury  and  mode  of  trial  without  jury, 

Rep.  44:   Luxton  v.  North  R.  B.  Co.        sCuthbert    v.    Gallowav,     35   Fed. 

147  U.  S.  33.7,  37  L.  ed.  195,  13  Sup.    4&9. 

Ct.  Rep.   356;    Paine  v.    Warren.   33        4See    ante,    §    5;    see    also    supra. 

Fed.  358:   Sulzer  v.  Watson,  39  Fed.    note[b]. 

415:  Allnut  V.  Lancaster,  76  Fed.  134.        sMassingill  v.  Downs,  7  How.  706, 

20 Ante,  §  836:  Martin  v.  Criscuola,  12  L.  ed.  906;  see  O'Connell  v.  Reed, 
10  Blatchf.  211.  Fed.  Cas.  No.  9.159.        5«  Fed.  531,  5  C.  C.  A.  586. 

iBank  of  Hamilton  v.  Dudlev.  2  eBath  Co.  v.  Amy.  13  Wall.  250, 
Pet.  526.   7  L.  ed.  496;   Howe  Mach.    20  L.  ed.  539. 

Co.  v.  Edwards,  15  Blatchf.  402,  Fed.  sCarlisle  v.  Cooper.  64  Fed.  474.  12 
Cas.    No.    6,784.    as    to    reference    to    C.  C.  A.  235. 

referee:  Sulzer  v.  Watson,  39  Fed.  aSchofield  v.  Palmer,  134  Fed.  754. 
414.  1  reference  to  auditors.  loJbid. 

2:.  111.  etc.  Ry.  V.  Piukney,  149        1 4 Ante,  §  805. 

U.  8.  -Oa,  37  L.  ed.  704,  13  Sup.  Ct.  isEwing  v.  Burnliam,  74  Fed.  3vS4; 
Rep.  864:  Southern  Pac.  Co.  v.  Den-  see  Osborne  v.  Detroit,  28  Fed.  385. 
ton,  146  U.  S.  209,  36  L.  ed.  94-5,  13  leWalker  v.  Collins,  50  Fed.  739, 
Sup.  Ct.  Rep.  47.  1  C.  C.  A.  642. 

838 


Procedure] 


PROCEDURE   IN    COMMON-LAW    CAUSES 


§   900    [g] 


precludes  State  statutes  upon  the  same  subject  from  being  applicable. i" 
The  same  is  true  as  to  the  Federal  laws  respecting  the  production  and  in- 
spection of  books,  etc.,  before  trial; is  and  respecting  the  right  to  proceed 
notwithstanding  certain  proper  parties  are  beyond  the  jurisdiction! » 
and  the  right  to  amend  process  or  pleading; 20  and  the  competency  of 
witnesses.  1  Federal  statutes  providing  the  party  in  whose  name  an  in- 
fringement suit  sliall  be  maintained; 2  or  the  mode  of  procuring  and  pro- 
ducing testimony  in  an  infringement  suits  or  the  form  of  action,-*  or  mode 
or  pleudinga  exclude  f.ny  applicability  of  local  statutes  upon  those  subjects. 
So  a  State  law  permitting  the  examination  by  deposition,  of  a  party  to  a 
suit  prior  to  trial,  is  inconsistent  with  the  Federal  law  declaiing  the  mode 
of  proof  to  be  by  oral  examination  in  open  court, 6  and  hence  cannot  be  fol- 
lowed." This  same  section  also  renders  generally  inapplicable,  state  laws 
as  to  the  taking  and  admissibility  of  depositions. s  It  also  forbids  an  order 
for  the  examination  of  a  plaintiff  suing  for  personal  injuries,  in  advance 
of  triai.9  The  conformity  provision  is  also  to  be  construed  in  connection 
with  R.  S.  §  95410  permitting  amendments  and  directing  Federal  courts  to 
disregard  mere  defects  of  form.n  A  proceeding  to  restore  a  lost  record  is 
sui  generis,  and  is  governed  by  act  of  Congress.  12 

[g]     Effect  of  clause  "as  near  as  may  be." 

The  earlier  conformity  laws  conferred  an  express  discretion  upon  the 
Federal  courts  to  vary  the  State  laws  adopted  for  their  guidance. i'^  "As 
near  as  may  be"  first  appears  in  the  conformity  law  enacted  in  1872  and 
still  in  force.     Somewhat  conflicting  views  of  the  exact   meaning  of  this 


iTUnited  States  v.  Arnold.  G9  Fed. 
99e.  16  C.  C.  A.  575:  United  States 
V.  Indian  G.  D.  So  Fed.  930,  29  C. 
C.  A.  578. 

isEaston  v.  Hodges.  7  Biss.  324, 
Fed.  Cas.  No.  4,258:  Paine  v.  War- 
ren, 33  Fed.  358;  Kirkpatrick  v.  Pope 
Mfg.  Co.  61  Fed.  46. 

laAllnut  V.  Lancaster.  76  Fed.  131. 

20 Van  Doren  v.  Pennsylvania  R.  R. 
93  Fed.  26-S.  35  C.  C.  A.  282:  North  C. 
St.  Ry.  Co.  V.  Burnhain,  102  Fed.  671, 
42  C.  C.  A.  584:  Booth  v.  Denike,  65 
Fed.  47:  Lange  v.  Union  P.  R.  R. 
126  Fed.  340.  62  C.  C.  A.  48:  Kent  v. 
Bav  State  G.  Co.  93  Fed.  887;  see 
also  ante.  §  813 [b]. 

iWhitford  V.  Clark  Co.  119  U.  S. 
525.  30  L.  ed.  501.  7  Sup.  Ct.  Rep. 
308:  Morris  v.  Norton,  75  Fed.  922, 
21  C.  C.  A.  553. 

2Webb  v'.  Goldsmith.  127  Fed.  572. 

3Marvin  v.  Auitman.  46  Fed.  339. 

•tMvers  v.  Cunningham.  44  Fed. 
346:  Cottier  v.  Stimson.  18  Fed.  689, 
9  Sawy.  435. 

5Kulp  V.  Snyder,  94  Fed.  613. 


ePost,  §  917. 

TBeardslev  v.  Littell,  14  Blatchf. 
102,  Fed.  Cas.  No.  1,185:  Ex  parte 
Fisk.  113  U.  S.  713,  28  L.  ed.  1117. 
5  Sup.  Ct.  Rep.  724. 

sTabor  v.  Indianapolis  etc.  Co.  66 
Fed.  423;  Despeaux  v.  Pennsylvania 
R.  R.  81  Fed.  898:  Shellaba'rger  v. 
Oliver,  64  Fed.  307,  308;  United 
States  V.  Pings,  4  Fed.  714;  See- 
ley  V.  Kansas  C.  S.  Co.  71  Fed. 
555;  United  States  v.  Fifty  Boxes, 
92  Fed.  601,  National  Cash,  etc. 
Co.  y.  Leland,  94  Fed.  503,  37  C.  C. 
A.  372:  Turner  v.  Shackman.  27  Fed. 
184. 

91'nion  Pac.  Ry.  v.  Botsford.  141 
U.  S.  257.  35  L.  ed.  739,  11  Sup.  Ct. 
Rep.  1003.  See  also  Denver,  etc.  Co. 
V.  Norton.  141  Fed.  599  (C.  C.  A.) 

10 Ante,  §  813. 

iiKent  V.  Bay  S.  G.  Co.  93  Fed. 
889. 

i2Turner  v.  Newman,  3  Biss.  307, 
Fed.  Cas.  No.  14,262. 

16  Supra,  note  [a]. 


839 


§   900   [h]  PROCEDURE   IN   COMiMOX-LAW    CAUSES.  [Code   Fed. 

tliiusc  have  been  expressed.  It  has  been  said  that  the  statute  is  peremptory 
in  character  1"  and  means  as  near  as  may  be  practicable; is  that  is,  as 
near  as  possible  in  view  of  those  things  which  stand  in  the  way  of  ab- 
solute conoformity,  such  as  conflicting  Federal  statutes  or  peculiarities  re- 
sulting from  the  nature  of  the  Federal  courts  and  their  jurisdiction.!  9 
And  there  is  much  to  be  said  in  favor  of  the  theory  that  Congress  intended 
to  require  harmony  where  possible,  and  to  leave  nothing  to  an  individual 
judge's  motion  of  the  propriety'  of  any  particular  feature  of  State  practice 
sc  long  as  it  could  in  fact  be  adapted  to  the  remedial  processes  of  the 
Federal  courts.  But  this  view  does  not  seem  to  have  prevailed.  "The 
conformity,"  observed  the  Supreme  Court,  per  Swayne,  J.,  in  one  of  its 
earliest  decisions  upon  tlie  clause,  "is  required  to  be  'as  near  as  may  be' — 
not  as  near  as  may  be  possible,  or  as  near  as  may  be  practicable.  This 
iiidefiniteness  may  have  been  suggested  by  a  imriiosp;  it  devolves  upon  the 
judges  to  be  affected  the  duty  of  construing  and  deciding,  and  gave  them 
the  power  to  reject,  as  Congress  doubtless  expected  thej''  would  do,  any 
subordinate  provision  in  such  State  statutes  which,  in  their  judgment, 
would  unwisely  encumber  the  administration  of  the  laAV,  or  tend  to  defeat 
the  ends  of  justice,  in  their  tril)Tuials.'"i  While  uniformity  of  procediu-e 
is  intended  by  R.  S.  §  914,  Congress  expects  it  to  be  attained  "largely 
through  the  discretion  of  the  Federal  courts,  exercised  in  the  form  of 
jj-enerai  rules-''^*  Since  the  existence  of  this  aiiii'lcr  discretion  is  recognized, 
the  customary  presumption  will  be  indulged  tl'.at  it  was  properly  exercised 
by  the  lower  court  in  a  given  case  of  variation  from  the  State  practice.3 
Variations  from  State  practice  will  be  noted  in  the  discussion  of  the  differ- 
ent phases  of  procedure  in  sul)sequent  sections  of  the  text. 

[h]     Necessary  that  there  be  "like  causes." 

As  it  is  the  procedure  in  "like  causes"  that  is  adopted,  it  is  said  that 
conformity  is  not  required  where  there  are  no  similar  cases  in  the  State 
practice.     Upon  this  ground  it  has  been  said   tht-t  proceedings  in  rem  for 

iTAmy    V.    Watcrtown.    130    U.    S.  426,  23  L.  ed.  286;  In  re  Chateaugav 

304.   32  "L.   ed.   947.   9  Sup.    Ct.  Rep.  Iron  Co.  128  U.  S.  544,  32  L.  ed.  508, 

530;    Nederland  Ins.   Co.  v.   Hall.   84  9  Sup.  Ct.  Rep.  150;  Southern  P.  Co. 

Fed.  279.  27  C.  C.  A.  390.  v.    Denton.    146  U.   S.  202,  36   L.   ed. 

isSee    Republic    Ins.    Co.    v.    Wil-  942,  13  Sup.  Ct.  Rep.  44;   Luxton  v. 

liams,  3  Biss.  370,  Fed.  Cas.  No.  11,-  North  R.  B.  147  U.  S.  337,  37  L.  ed. 

707;  Lewis  v.  Gould.  13  Blatchf.  216,  194.   13   Sup.   Ct.   Rep.   356;    Lincoln 

Fed.    Cas.    No.    8.324:     Edmunds    v.  v.  Power.  151  U.  S.  436.  38  L.  ed.  224. 

Illinois   Cent.  R.   R.  80   Fed.   78,  85:  14    Sup.   Ct.   Rep.   387;    Laird   v.    De 

Chicago,    etc.    Rv.   v.   iletalstaff.    101  Soto,  25  Fed.  76;   O'Connoll  v.  Reed, 

Fed.    770,   41    C."  C.    A.    689;    United  56  Fed.  531,  5  C.'U.  A.  586;  Lowrv  v. 

States     V.     Davis.     103     FeJ.     465;  Storv.  31  Fed.  769;  Sherry  v.  Oceanic 

:\Iutual.     etc.     Bank    v.    Bo«sicux.    1  S.  \V.  Co.  72  Fed.  565;   Kent  v.  Bav 

Hughes.  386,  Fed.  Cas.  Xo.  9.977.  S.  G.  Co.  93  Fed.  887;  Times  P.  Co. 

i9See  supra,  note  [f].  v.   Carlisle,94   Fed.   771,   36  C.   C.  A. 

'Indianapolis,  etc.  R.  R.  v.  Horst,  475;    Lange   v.    Union   P.   R.    R.    120 

93  U.  S.  300.  23  L.  ed.  898.  Fed.  340.  02  C.  C.  A.  48. 

2Shepard  v.  Adams.  168  U.  S.  623,  sShepard  v.  Adams.  168  U.  S.  (t23. 

42  L.  ed.  604,  18  Sup.  Ct.  Rep.  214.  42  L.  ed.  604,  18  Sup.  Ct.  Rep.  214. 
And   see  Nudd  v.  Burrows.  91  U.   S. 

840 


I 


Procedure]  WRITS  AND  PROCESS.  §   901 

forfeiture  under  the  revenue  laws  being  sui  generis,  need  not  conform  to 
State  practice. 5  A  proceeding  to  restore  lost  records  is  sui  generis  and 
governed  by  the  act  of  Congress. 6  And  it  has  been  argued  that  the  same 
is  true  of  patent  infringement  suits."  Xevertheless,  other  patent  infringe- 
ment suits  at  law  have  recognized  State  practice  upon  matters  where  there 
was  no  Federal  statute  to  the  contrary  ;S  so  also  have  copyright  suits. 9 
And  in  an  action  for  a  Federal  statutory  penalty  where  Congress  had  not 
prescribed  the  procedure  it  has  been  held  that  R.  S.  §  914  required  sub- 
stantial conformity  to  the  State  practice. lo 

[ij     Effect  of  conforraity  clause  upon  power  to  make  rules. 

The  power  of  the  circuit  and  district  courts  to  make  rules  and  the  effect 
of  the  concluding  clause  of  R.  S.  §  014  thereon,  have  already  been  con- 
sidered.! 3  R.  S.  §  914  undoubtedly  diminishes  the  very  broad  power  pos- 
sessed by  those  courts  under  earlier  process  acts;i4  although  it  does  not 
affect  the  power  to  adopt  by  rule  the  State  laws  on  attachment  and 
execution  conferred  by  R.  S.  §S  91.5  and  916.1"  The  wording  of  R.  S. 
§  914  is  such  that  any  change  i.i  State  law  upon  a  matter  of  proceduri- 
raises  the  question  whether  an  existing  rule  of  the  Federal  court  upon 
the  same  subject  is  not  repealed  thereby.  If  the  Federal  Court  adheres  to  its 
own  rule  of  practice  notwithstanding  such  change,  the  Supreme  Court 
will  presume  that  tliis  was  in  tlio  proper  exercise  of  its  discretion.! 6 

§  901.     Writs  and  process  in  common-law  causes. 

Federal  courts  derive  their  power  to  issue  the  common-law  writs 
from  E.  S.  §  911/^  empowering  them  generally  to  issue  writs,  and 
from  R.  S.  §§  915  and  916^^  empowering  them  to  issue  attachment 
garnishment  and  execution.  The  form  and  general  style  of  Federal 
writs  are  also  prescribed  by  Congress.^     So  that  the  conformity  re- 

sCoffev   V.    United    States.   117    U.  34  Fed.  745. 

S.  235.  29  L.  ed.  892,  6  Sup.  Ct.  Rep.  sJohnston  v.  Klopsch.  88  Fed.  602. 

717:    United   States   y.   Fiftv   Boxes,  loUnited  States  v.  Elliott,  25  Int. 

92  Fed.  602:  United  States  v.  Mollov,  Rev.  310.   Fed!   Cas.   No.   15.043:    see 

31  Fed.  23.                                              "  also  United  States  v.  Rose.  14  Fed. 

6Turner  v.   Newman.   3   Biss.   307,  6S1  :    United    States   v.   O'Brien.    120 

Fed.  Cas.  Xo.  14,262.  Fed.  446:   United  States  v.  Banisler. 

"Marvin  v.  Aultman,  46  Fed.  339.  70  Fed.  44. 

There    are     of     course    many    special  13§  805[a]. 

Federal  provisions  on  the  subject  of  n  Supra,  note  [a], 

infringement     which      preclude     the  isPost.  §§  905.  025;    see  Lamaster 

operation   of  State  laws:    New  York  v.   Keeler,    123   U.   S.   376,  31   L.   ed. 

etc.    Co.    V.    Sullivan,    111    Fed.    181:  238,  8  Sup.  Ct.  Rep.  197. 

Mvers  V.  Cunninirham.  44   Fed.  346:  isShepard    v.    Adams,    168    U.    S. 

Kiilp  V.  Snvder.  04  Fed.  613:   Webb  6-23.  42  L.  ed.  604.  IS  Sup.  Ct.  Rep. 

V.  Goldsmith.  127  Fed.  572.  214. 

sSee  Mav  v.  ^Mercer,  .30  Fed.  246:  i^Ante.  §  841. 

Cottier   v.  "Stimson,   18    Fed.   689,   9  soPost,  §§  905.  925. 

Sawy.  4.35,  verification  of  plea :  Cellu-  lAnte,  §  836. 
loid   Mfg.  Co.  V.   .\merican.   etc.  Co. 

841 


§   ;)()2  PROCEDURE    IN    COMMON-LAW    CAUSES.  [Code   Fed. 

quirement  of  R.  S.  §  914  has  little  or  no  application  to  Federal 
writs.  The  comformity  law  applies,  however,  to  process  in  coinmon- 
law  canses,  except  as  regards  form  and  style,  which  Congress  has  pre- 
scribed,- and  as  respects  service,  it  being  provided  that  Federal 
process  shall  be  served  by  the  marshal,  and  in  general  only  within  tli<' 
district  where  it  is  issued."  These  requirements  as  to  form  and 
service  forbid  adoption  in  the  Federal  courts  of  the  New  York  and 
Wisconsin  practice  is  so  far  as  it  permits  plaintilfs"  attorney  to 
issue  and  serve  the  summons.'*  But  the  state  law  regarding  suffi- 
ciency of  service  upon  corporations,  etc.,  is  followed.^  The  proper 
mode  of  procedure  as  respects  the  issue  of  summons  in  New  York 
is  considered  in  several  cases. ^  The  State  law  as  to  endorse ineui 
upon  the  summons  has  been  follo^ved  in  the  Federal  courts,'^  even  in 
actions  for  penalties,  brought  by  the  United  States.^  The  State 
practice  on  fieri  facias  has  been  followed.^ 
Author's  section. 

§  902.     Parties  in  common-law  causes. 

E.  S.  §  914^-  imposes  upon  the  Federal  courts  in  common-law 
causes  the  general  duty  of  following  the  local  law  respecting  the 
proper  parties  plaintiff'  or  defendant,  and  the  joinder,  substitu- 
tion and  misjoinder  of  parties. "^^^  However,  this  general  require- 
ment of  conformity  is  subordinate  to  several  rules  respecting  parties 
which  are  peculiar  to  Federal  practice  and  which  being  jurisdic- 
tional in  character,  are  not  subject  to  infringement  or  modifica- 
tion! ^  \)y  provisions  of  State  law.  Thus  the  Federal  law  forbids 
abatement  for  want  of  necessary  parties.^*  It  provides  as  to  the 
effect  of  death  of  parties -.i^  and  the  effect  of  death  or  expiration  of 
terra,  in  cases  of  suit  against  officers.!^  There  are  peculiar  Federal 
rules  respecting  suits  by  assignees.!'^  The  Federal  courts  have  their 
OM^n  classification  of  parties  as  formal,  necessary  and  indispensa- 

2Ante,  §  836.  sBrowii  v.  Cliesapeake  &  O.  C.  Co. 

3 Ante,  §  853.  4  Fed.  770;  4  Hughes,  584;  see  ante, 

lAnte,  §  836[a].  §  841.  [aa] 

5 Ante,  §  836.  12 Ante,  §  000. 

6  Johnson  v.  Healy,  9  Ben.  318,  Fed.  is  Ante,  §  5. 

Cas.  Xo.  7,389:  Martin  v.  Criscuola,  KAnte,  §  817. 

10  Bla^chf.  211,  Fed.  C^s.  No.  9.159.  isAnte,  §§  814,  815. 

miller   V.   Gages,   4  McLean,  436,  leAn/te,  §  816. 

Fed.  Cas.  No.  9.571.  iTAnte,  §  23. 

sUnited    States   v.    Rose,   14   Fed. 
681. 

842 


Procedure]  PARTIES.  §  90:2    [a] 

ble.^^  and  will  under  certaiii  circumstances  proceed  without  neces- 
sary parties  regardless  of  tlie  State  practice.^''^ 
Author's  section. 

[a]     Conformity  to  State  law  respecting  parties. 

The  conformity  requirements  of  R.  S.  §  914  apply  to  parties.i  A  state 
law  authorizing  a  person  with  whom  or  in  whose  name  a  contract  is 
made,  to  sue  thereon  in  his  own  name  is  in  force  in  the  Federal  court.2 
The  Federal  court  in  Missouri  properly  permitted  a  landlord  to  be  joined 
as  party  to  defend  his  tenants  possession  in  accordance  with  the  Missouri 
law.3  A  State  statute  permitting  an  assignee  of  a  contract  to  sue  thereon 
in  his  own  name  applies  in  the  Federal  court  there ;*  and  in  States  where 
the  ancient  rule  forbidding  smt  by  an  assignee  in  his  own  name  prevails, 
the  Federal  court  there  sitting,  follows  it.5  So  where  the  State  court  per- 
mits a  landlord  to  sue  a  subtenant  upon  the  latter's  agreement  with  ten- 
ant to  assume  the  rent  charge  the  Federal  court  will  do  the  same. 6  So 
the  State  law  as  to  the  right  of  a  wife  to  sue  without  joining  her  hus- 
band^  is  in  force  in  the  Federal  court.  And  State  laws  is  to  the  joinder  of 
parties  in  a  suit  upon  a  bond ;  s  or  in  a  suit  against  corporate  stockholders ;  9 
or  in  a  suit  on  a  contract  on  which  several  are  liable, lo  will  be  followed.  A 
State  law  forbidding  abatement  for  improper  joinder  has  been  followed; n 
and  a  State  law  permitting  substitution  of  one  defendant  for  another.! 2 
The  question  of  the  competency  of  an  assignee  to  sue  is  determined  by  the 
law  of  the  State  where  suit  is  brought,  and  not  the  law  of  the  State  where 
the  contract  is  made;i3  though  the  statutory  right  of  a  married  woman  to 

18 Ante,  §  817 [bj.  sSt.   i^uis  B.  Assoc,  v.   Hayes,  !)7 

iPritchard    v.    Noirton,    lOG    U.    S.  Fed.  859.  38  C.  C.  A.  449. 

124,   130,   27   L.   ed.    104,   1    Sup.   Ct.  'JBurland  v.  Haven,  37  Fed.  394,  13 

Rep.   102:   Albany,  etc.  Co.  v.  Lund-  Sawy.  551. 

berg.   121   U.  S.   451,   454,   30  L.   ed.  loAtlaratic    &    P.    R.   R.    v.   Laird, 

982.    7    Sup.    Ct.   Rep.    958:    Hale   v.  1G4  U.  S.  400,  41  L.  ed.  488,  17  Sup. 

Tyler,   104  Fed.  761.  Ct.  Rep.  120;  Sawin  v.  Kenny,  93  U. 

2Albany.  etc.  Co.  v.  Luiidbeig,  121  S.  290,  23  L.  ed.  926;  United  States 

r.  S.  451,  30  L.  ed.  982,  7  Sup.   Ct.  v.  Tracy.  8  Ben.  1,  Fed.  Cas.  No.  16,- 

Rep.  958.  530:    T'ndted   States  v.   Lawrence.   14 

sPhelps  v.  Oaks,  117  U.  S.  241.  29  Blati^lif.   23i,   Fed.    Cas.   No.    15,574; 

L.  ed.  888,  6  Sup.  Ct.  Rep.  714.  ^^.e  also  Lewis  v.  Marshal,  5  Pet.  474, 

^Arkansas  S.  Co.  v.  Belden  Co.  127  8  L.  ed.  195,  following  the  Kentucky 

U.  S.  387,  32  L.  ed.  248,  8  Sup.  Ct.  law  as  to  joinder  of  parties. 

Rep.  1309:   Delaware  Co!  v.  Diebold,  uPerry  v.  Mechanics'  M.  T.  Co.  11 

etc.  Co.  133  r.  S.  488.  .33  L.  ed.  674,  Fed.  478. 

10  Sup.  Ct.  Rep.  399:  Dexter  H.  Co.  i2Harris   v.  Hess,   10  Fed.  263,  20 

V.  Savward,  51  Fed.  729.  Blatchf.   253. 

sNederland   L.   I.    Co.    v.    Hall.    84  isXederlands  L.  I.  Co.  v.  Hall,  S4 

Fed.  278,  27  C.  C.  A.  390.  Fed.  278.   27   C.  C.  A.  390;   Glenn   v. 

eAdaiii:^  v.  Shirk.  105  Fed.  650.  44  Marburv,    145    U.    S.    508.    36    L.    ed. 

C.  C.  A.  653.  794.  12  Sup.  Ct.  Rep.  917;   Edmunds 

morning    J.    Assn.    v.    Smith,    56  v.    Illinois   Cent.   R.   R.   SO    Fed.    84: 

Fed.   141,  4  C.   C.  A.  8;   Texas,  etc.  see  Osborn   v.   Fir<t   Vat.   Bank,  175 

Ry.   V.  Humble,   181   U.   S.  61,  45  L.  Pa.   St.  497,  498,   34  Atl.  858. 
ed.  750,  21  Sup.  Ct.  Rep.  526. 

843 


§   SH)2    [b]  PROCEDURE   IN   COMMUX-LAW    0AU8ES.  [Code  Fed. 

sue  in  hor  own  name   lor  peisuKil   iiijinies,  is  governed  by  the  law  of  the 

State   where  the  injury   occurred.'' 

[bj     Local  law  not  followed  if  in  conflict  with  Federal. 

A  f>tate  statute  permitting  joinder  of  parties  cannot  be  followed  for  the 
pur[>()se  of  aggregating  claims  large  enough  to  reach  the  jurisdictional 
aiuoimt  requisite  in  the  Federal  courts; it  or  where  the  Federal  statute  as 
to  suits  by  assignees  forbids. is  The  State  law  as  to  necessary  parties  can- 
not api^ly  where  by  E,.  S.  §  737,  the  court  is  permitted  to  dispense  with 
parties  who  cannot  be  served.is  The  joinder  of  the  survivor  of  one  of 
several  co-obligors,  as  defendant,  is  governed  by  Federal  and  not  State 
law.  2  0  So,  also  the  Federal  statute  and  not  State  law  is  controlling  upon 
the  question  who  is  proper  party  plaintifl'  in  a  patent  infringement  suit.i 

§  903.     Pleading  in  common  law  causes. 

The  forms  and  modes  of  pleading  in  civil  cases  other  than  of 
equit}'  and  admiralty  must  r-onform  to  those  prevailing  in  the  courts 
of  the  State  where  the  Federal  court  is  sitting.  Indeed  the  con- 
formity requirements  of  E.  S.  §  914^  apply  with  especial  force  to 
the  forms  and  modes  of  pleading,  and  uniformity  in  that  respect 
was  one  of  the  chief  objects  of  the  enactment  of  the  present  law.^ 
While  Congress  has  laid  down  the  rules  to  govern  amendment  of 
pleadings,'^  there  are  no  other  general  enactments  tending  to  ])re- 
vent  the  attainment  of  entire  uniformity  between  Federal  and  State 
courts  in  that  respect,  although  there  are  a  few  Federal  require- 
ments as  to  pleading  in  patent  cases  and  in  some  other  special  ac- 
tions and  proceedings.'^  The  conformity  in  the  matter  of  plead- 
ing does  not,  however,  permit  the  pleading  of  equitable  defenses 
in  actions  at  law  oi-  the  blending  of  legal  and  equitable  causes  of 
action,  or  suit  on  tlie  law  side  by  virtue  of  a  State  statute  declaring 
the  remedy  to  be  at  law,  wliere  by  Federal  standards  it  is  in 
equity.  1^^^''^*']'^  The  right  to  plead  a  set-off  or  counter  claim  tini- 
fei'red  by  modern  statutes  represents  a  blending  of  law  and  equity, 
and  such  statutes  are  not  adopted  in  the  Federal  courts  in  so  far  as 
pci-niitting  equitable  defenses  in  actions  at  law.'^''^ 
Author's  section. 

i4Texas,  etc.  Ey.  V.  Humble.  181  U.  2  0United    States    v.    Bullard,    103 

S.  61,  45  L.  ed.  750,  21  Sup.  Ct.  Rep.  Fed.  2of>. 

520.  iXew    York.    etc.    Co.    v.    Sullivan, 

iTHolt  V.  Bergovin,  00  Fed.  1.  ^  l"^ed.  181. 

18 See   Dromgoole  v.   Farmers,   etc.        ^-t"}^'  f  'IPi'v     -, 
■D     1      .->    IT  oio     n    T        1     -icT  ''Ante.  S  900  [aaj. 

Bank,   2    How.    243.   11   L.  ed.   252;        « \„te    S  813 

Keary  v.  Farmers,  etc.  Bank,  16  Pet.         :See  ante.   s'900[h];    post,  §   1167 

95,  10  L.  ed.  897.  et  seq. 

isAlhuit  v.  Lancaster.  70  Fed.  131.  Ante,  f^  800. 

34  i 


ProceLlare] 


PLEADING. 


§   903   [a] 


[aj     Adoption  of  State  forms  of  pleading. 

'J"ii(,'  conformity  law  applies  to  the  pleadings  in  common-law  eases. lo 
If  the  State  adheres  to  the  old  common  forms  and  rules  of  pleading  the 
Federal  court  there  sitting  will  do  the  3ame;ii  and  if  it  has  discarded  them 
in  favor  of  a  simple  petition  or  complaint,  and  one  or  two  subseqiient  plead- 
ings designed  to  raise  all  issues  of  law  or  fact,  this  practice  is  equally  ob- 
ligfitory.12  If  the  State  law  repeals  anon: alous  special  proceeding,  the  repeal 
is  equally  effective  in  the  Federal  court. is  Conformity  to  State  pleadings 
includes  the  form  and  order  of  pleading  ;14  the  right  to  file  supplemental 
pleadings;  15  the  time  of  pleading; is  the  sufficiency  of  a  pleading  to  sustain 
a  verdict;  and  the  svifficiency  of  the  denials  in  an  answer.i7  It  involves 
adoption  of  the  State  rules  respecting  the  construction  of  pleadings; is 
testing  their  sufficiency  and  scope;  19  respecting  the  necessity  for  specially 
averring  the  defense  of  contributory  negligence ;  2  o  the  necessity  for  reply  to 
new  matter  in  the  answer;  1  the  scope  of  a  general  demun-er;2  the  rule  that 
only  ultimate  facts  be  stated; 3  the  rule  as  to  leave  to  plead  over  after  de- 
murrer; <  as  to  demurrer  to  answcr.s  Federal  pleading  must  conform 
in  the  matter  of  verification  ;S  and  this  has  been  required  even  in  a  patent 


loTavlor  v.  Brigham.  .3  Woods, 
377,  Fed.  Cas.  No.  13,781;  Lewis  v. 
Gould,  13  Blatchl.  216.  Fed.  Cas.  No. 
8.324:  Merchants,  etc.  Bank  v. 
Wheeler,  13  Blatchf.  218,  Fed.  Cas. 
No.  9,4.39;  Oscanvan  v.  Winchester, 
etc.  Co.  15  Blatchf.  79.  Fed.  Cas.  No. 
lO.fiOO;  Saimders  v.  Short.  86  Fed. 
229.  .30  C.  C.  A.  402. 

iiPhillips,  etc.  Co.  v.  Sevmour,  91 
U.  S.  655.  23  L.  cd.  345. 

i2lndian^polis,  etc.  R.  R.  v.  Horst, 
93  U.  S.  300.  23  L.  ed.  901  ;  ilus-r 
v.  Robertson,  17  Fed.  500.  21  Blatchf. 
368. 

isHarvev  v.  Virginia,  20  Fed.  411. 

i4Southern  P.  Co.  v.  Denton,  146 
U.  S.  209.  36  L.  ed.  942.  13  Sup.  Ct. 
Rep.  44. 

isMerrill  v.  Rokes,  54  Fed.  452, 
4  C.  C.  A.  433. 

iGRicard  v.  New  P.  T.  P.  5  Fed. 
433;  Werthein  v.  Cnntinontal.  etc.  R. 
R.  11  Fed.  6S9,  20  Blatchf.  .50S;P1h>- 
nix  Ins.  Co.  v.  Charleston  B.  05  Fed. 
628.  13  C.  C.  A.  58. 

iTBond  V.  Dustin.  112  U.  S.  609. 
28  L.  ed.  837,  5  Sup.  Ct.  Rep.  290. 

isRobertson  v.  Perkins,  129  U.  S. 
235,  32  L.  ed.  GS8,  9  Sup.  Ct.  Rep. 
279. 

19 United  States  v.  Parker,  120  U. 
S.  94.  30  L.  ed.  604,  7  Sup.  Ct.  Rep. 
4.54;  Northern  P.  R.  R.  v.  Paine,  119 
U.  S.  561,  30  L.  ed.  .531,  7  Sup.  Ct. 


Rep.  323;  Sommer  v.  Carbon  H.  Coal 
Co.  89  Fed.  GO.  ,32  C.  C.  A.  156; 
Glenn  v.  Sumner.  132  U.  S.  150,  33 
L.  ed.  301,  10  Sup.  Ct.  Rep.  41;  Rush 
V.  Newman,  58  Fed.  158,  7  C.  C.  A. 
136;  Austin  v.  Seligan,  18  Fed.  519. 
21  Blatchf.  .506,  applying  the  State 
rule  that  relief  may  be  gi'anted  re- 
gardless of  the  form,  whether  ex 
contractu  or  ex  delicto.  United 
States  V.  Tilton,  7  Ben.  306,  Fed. 
Ca^.  No.  10.525,  as  to  sufficiency  of 
plea. 

20  Gaddoneux  v.  New  Orleans  Rv. 
128  Fed.  806. 

iBurlington  Ins.  Co.  v.  Miller,  00 
Fed.  254,  8  C.  C.  A.  612. 

2Van  Doren  v.  Pennsylvania  R.  R. 
93  Fed.  202,  35  C.  C.  A.  282;  see 
also  General  Electric  Co.  v.  Westing- 
house,  etc.,  Co.  144  Fed.  458. 

3]\hi?f^r  V.  Robertson,  17  Fed.  500, 
21  Blatchf.  308. 

-tGreen  v.  Underwood,  86  Fed.  427, 
30  C.  C.  A.  162. 

sKester  v.  Western  U.  T.  Co.  108 
Fed.  926. 

est.  Louis,  etc.  R.  R.  v.  Knight.  122 
U.  S.  90,  30  L.  ed.  1083.  7  Sup.  Ct. 
Rep.  1132;  Ralls  Co.  v.  Douglass.  105 
U.  S.  728.  26  L.  e<l.  957 ;  In  re  Find- 
lav,  5  Biss.  480,  Fed.  Cas.  No.  4.789; 
United  States  v.  Brvant.  Ill  U.  S. 
503,  28  L.  ed,  498,  4  Sup.  Ct.  Rep. 
601. 


845 


§   903   [C]  PROCEDURE    IN    COMMOX-LAW    CAUSES.  [Code   Fed. 

infringement  suit  where  the  practice  is  largely  regiUated  by  Congress." 
So  the  mode  of  pleading  the  general  issue  in  a  copyright  infringement  suit 
has  been  required  to  conform  to  the  State  practice. s  A  State  law  forbid- 
ding the  filing  of  a  fourth  petition  where  three  have  been  held  defective 
on  demurrer,  is  obligatory  on  the  Federal  courts. »  A  pleading  which  is 
unauthorized  by  the  State  practice  will  be  set  aside  on  motion.io  if  a  de- 
fense may  be  specially  pleaded  in  the  State  court,  the  same  rule  holds  in 
the  Federal  tribunal,  n  The  State  law  as  what  causes  of  action  may  be 
joined  in  one  suit  will  usually  be  followed,!  2  although  the  conformity  lias 
been  refused  where  having  the  eifect  to  oust  the  court's  jurisdiction.! a 
So  the  State  law  requiring  the  filing  of  deeds  with  the  complaint  in  eject- 
ment is  followed.  14  If  by  the  State  law  demurrer  is  the  proper  mode  of 
raising  the  defense  of  limitations,  this  rule  applies  in  the  Federal  court; is 
as  also  the  rule  as  to  the  mode  of  noticing  a  demurrer  for  hearing.! 6 

Where  the  State  practice  requires  a  jurisdictional  issue  to  be  raised  by 
answer  and  not  by  plea  the  Federal  court  will  follow  this  rule2  0  although 
it  will  require  a  separate  finding  by  the  jury  upon  such  issue;!  and  in  the 
absence  of  any  finding  upon  the  jurisdictional  issue  the  case  will  be  re- 
versed.2  The  act  of  1875  requiring  dismissal  at  any  time  want  of  juris- 
diction appears  tends  somewhat  to  prevent  strict  conformity  with  the 
State  practice,  where  a  question  of  the  court's  jurisdiction  is  involved.* 

[c]     State  rules  as  to  proof  not  adopted. 

Where  a  State  rule  is  not  one  of  pleading  but  of  proof  the  Federal 
courts  need  not  conform  thereto;  hence  though  the  Xew  York  covu-ts  re- 
quire the  original  debt  to  be  proved  in  an  action  to  enforce  a  stockholder's 
liability,  the  Federal  court  there  will  not  require  it  to  be  alleged  and  proved 
in  a  suit  governed  by  the  Kansas  stockholders  law.6 

TCottJcr  V.  Stimson,  IS  Fed.  689,  9  C.  C.  A.  52.     The  Federal  courts  also 

Sawy.  4.35.  follow  a  State  rule  that  demurrer  is 

s Johnston  v.  Klopsch,  SS  Fed.  G92.  not    the    proper    mode:      Barnes    v. 

sWoodward  v.  Gould,  28  Fed.  736.  Union  P.  Rv.  54  Fed.  87,  4  C.  C.  A. 

loLewis  V.  Gould,  13  Blatchf,  216,  199. 
Fed.     Gas.     No.    8,324.      However,   it        leRosenbach    v.    Dreyfuss,    2    Fed. 

does  not  matter  what  name  the  party  23. 

gives  a  pleading:     Jones  v.  E.owL?y,        2  0Koberts  v.  Lewis,  144  U.  S.  659. 

73  Fed.  286.  36  L.  ed.  579,  12  Sup.  Ct.  Rep.  781  ; 

!!Preferred  Ac.  Co.  v.   Barker,  98  Draper   v.    Springport,    15    Fed.   328, 

Fed.  158,  35  C.  C.  A.  250';  English  v.  21  Blatchf.  240. 
Ralston,  112  Fed.  273.  iGreene   v.   Tacoma,   53   Fed.   562; 

!2Judson  V.  Macon  Co.  2  Dill.  213,  Roberts  v.  Langenbach,  119  Fed.  349, 

Fed.    Cas.    No.    7,568;    Castro    v.    De  56  C.  C.  A.  253;  Ashley  v.  Board,  60 

Uriarte,  12  Fed.  255.  Fed.  55,  8  C.  C.  A.  455;  see  Jones  v. 

130'Connell  v.  Reed,   56  Fed.   531,  Rowley,  73  Fed.  286. 
5  C.  C.  A.  586.  2Roberts  v.  Lewis,   144  U.  S.  659, 

i4Alexander   v.    Gordon,    101    Fed.  36  L.  ed.  579,  12  Sup.  Ct.  781. 
91,  41  C.  u.  A.  228.  3Ante,   §   81S. 

15 Chemung  v.  Lowery,  93  U.  S.  76,  4See  Jones  v.  Rowley,  73  Fed.  286. 
23  L.   ed.  806.     But   see  Theroux  v.        eAmerican,  etc.  Co.  v.  Woodworth, 

Northern  Pac.  R.  R.  64  Fed.  84,   12  79  Fed.  952. 

846 


I'loeeduve]  PROVISIONAL     AND     OTHER     REMEDIES.  §   904 

[d]     Right  to  plead  set-off  or  counterclaim. 

The  modern  right  of  set  off  and  counterclaim  represents  both  the  old 
equitable  right  of  set-off,  and  the  set-off  and  recoupment  allowed  in  courts 
of  common  law.  So  far  as  a  State  statute  permits  the  set  off  or  recoupment 
that  was  allowable  at  common  law,  or  enlarges  the  right  of  thus  pleading 
some  matter  of  a  legal  and  not  equitable  character,  the  Federal  courts 
should  recognize  and  conform  to  its  requirements. s  But  equitable  defenses 
are  not  pleadable  at  law  in  the  Federal  courts.9  Hence  a  matter  within 
flic  modem  set-off  or  counterclaim  statutes,  that  is  nevertheless  equitable 
in  character  cannot  be  pleaded  in  a  Federal  action  at  law.io  A  recent  case 
at  circuit  goes  further  than  this  and  declares  that  it  is  only  when  a  set-off 
or  coimterclaim  is  the  equivalent  of  the  common-law  recoupment  that  it  is 
allowable  at  law  in  the  Federal  courts,  ignoring  the  fact  that  a  statutory 
set-off  was  recognized  in  actions  at  law  prior  to  the  time  of  American  inde- 
pendence.! i  The  case  declared  that  a  set-off  seeeking  an  affirmative  judg- 
ment against  plaintiff  Avas  formerly  only  allowable  in  courts  of  equity,  and 
hence  was  an  equitable  defense,  though  the  claim  was  in  fact  legal  in  char- 
acter, being  an  ordinary  claim  for  damages  ex  contratu.12 

§  904.     Provisional  and  other  remedies  in  general. 

In  general  the  same  legal  remedies  are  open  to  a  party  in  the 
Federal  as  in  the  State  courts,  by  virtue  of  the  adoption  of  the 
State  practice  under  R.  S.  §  914.1^  Provisional  remedies  by  way 
of  attachment,  and  arrest  and  bail  are  governed,  however,  by  specific 
statutory  provisions  ;i'  and  the  same  is  true  of  remedies  after  judg- 
ment by  execution  supplementary  proceedings,  etc.^*  Other  reme- 
dies, however,  such  as  ejectment  or  replevin  and  their  statutory 
equivalents,  are  within  the  conformity  requirements  of  R.  S.  §  914. 

sPatridge     v.     Insurance     Co.     1.5        loChureh   v.    Spiesrelburg,   .31    Fed. 

Wall.   580.   21   L.   ed.   229:    Frank  v.  GOl :  Herklotz  v.  Chase.  32' Fed.  433: 

Chctwood.   9   Rep.    6.    Fed.    Ca*.   Xo.  Snyder  v.  Pharo.  25  Fed.  398. 
5.  051  :    Bull  V.   First,  etc.  Bank.   14        iiStatute.  2  Geo.  II.  c.  22.  §  13,  8 

Fed.  614;   Frick  v.  Clements,  31  Fed.  G«o.   II.   c.   24,    §   5;    Pomeroy    Code. 

542:    Adams   v.    Spokane   D.    Co.    57  Rein.   §  729. 
Fed.    889,   23   L.R.A.    334;    Wheeling        i2Jewett    Car    Co.    v.   Kirkpatrick 

B.  Co.   v.   Cochran.   G8   Fed.    141,   15  C.   Co.   107  Fed.  622.     But  even  if  a 

C.  C.  A.  321 :  Charnley  v.  Sibley,  73  legal  claim  was  formerly  only  al- 
Fed.  982,  20  C.  C.  A.  157 :  Dexter  H.  lowable  in  set  off  in  a  court  of  equity, 
C<3.  v.  Sa_\-Avard,  51  Fed.  729:  Fidel-  a  statute  admitting  it  in  law  merely 
itv  Ins.  Co.  A'.  Mechanics'  S.  Baiik.  enlarges  a  lesal  and  not  an  equitable 
97  Fed.  303,  38  C.  C.  A.  193:  Dushane  right^  See  Dushane  v.  Benedict,  120 
V.  Benedict,  120  U.  S.  630,  30  L.  ed.  U.  S,  630,  30  L.  ed.  810,  7  Sup.  Ct. 
810,  7  Sup.  Ct.  Rep.  090.  It  is  also  696,  where  counterclaim  seeking  af- 
true  that  so  far  as  a  State  law  of  firmative  judgaieni  for  defendant 
connterclaim  enlarges  equitable  was  allowed  in  an  action  at  law. 
rights,    it    will    be    followed    by   the        1 6 Ante.  §  900. 

Federal    court:      Iowa,    etc.    Co.    v.        iTRost,  §§  905,  1537  et  scq. 
Temeseal  W.  Co.  95  Fed.  320.  isPost,  §  92o. 

«Ante.  §  800. 

847 


*!   90u  rROCEDURE    IN    COMMUX-LAW    CAUSES.  [Code  Fed. 

In  the  matter  of  extraordinary  relief  through  the  a_;2;eucy  of  various^ 
common-law  writs,  the  power  of  the  Federal  courts  is  derived  from 
E.  S.  §  911^'^  and  is  neither  restricted  nor  enlarged  by  State  laws. 
Author's  section. 

The  local  remedies  are  in  force  in  the  circuit  court. 20  This  applies  to 
partition,3  and  ejectment. ^  But  a  provision  of  State  law  that  no  lis  pen- 
dens shall  bind  bona  iide  purchaser,  unless  recorded  in  a  specified  way  is 
not  operative  in  the  Federal  Courts. » 

§  905.  —  remedies  by  attachment  and  garnishment  the  same  as  iii 
State  courts. 

In  common-law  causes  in  the  circuit  and  district  courts  the  plain- 
tiff shall  be  entitled  to  similar  remedies,  by  attachment'^^^"'^''^  oi- 
other  process/*^^  against  the  property  of  the  defendant,  which  are 
now  provided  by  the  laws  of  tiie  State  in  which  such  court  is  held 
for  the  courts  thereof;  and  such  circuit  or  district  courts  may,  from 
time  to  time,  by  general  rules,  adopt  such  State  lawsi^^^  as  may  be 
in  force  in  the  States  where  they  are  held  in  relation  to  attachments 
and  other  process:  Provided,  That  similar  preliminary  affidavits  or 
proofs,  and  similar  security,  as  required  by  such  State  laws,  shall  he 
first  furnished  by  the  party  seeking  such  attachment  or  other 
remedy. 

R.  S.  §  915,  U.  S.  Comp.  Stat.  1901,  p.  684. 

[aj     History  of  section  and  cross-references. 

The  right  of  attachment  is  also  specifically  conferred  upon  the  United 
States  in  actions  under  the  postal  laws,  against  postmasters,  their  bonds- 
men, etc. 8  There  are  also  special  provisions  respecting  garnishment  in 
suits  by  the  United  States. 9  The  above  provision  is  from  a  law  of  1872.i« 
Prior  thereto  the  general  conformity  provision  in  the  process  acts  applied 
both  to  attachments  and  execution ;  1 1  and  power  to  adopt  the  State  at- 
tachment laws  by  rule,  was  well  settled. 12  As  early  as  1848,  however, 
there  was  a  specific  Federal  statute  adopting  the  State  laws  as  to  dissolu- 

19 Ante,  841.  iiWavman  v.  Southard,  10  Wheat. 

20Strac>hen  v.  Clybourn,  3  Mc-  1,  6  L.  ed.  253;  Bank  of  U.  S.  v.  Hal- 
Lean,  174.  Fed.   Cas.  No.   13,520.  stead,  10  Wheat.  51,  6  L.  ed.  264. 

3Ex    parte    Biddle,    2    Mason,    472,         i2Elv  v.  Hanks,    1    W.   L.   M.    107, 

Fed.  Cas.  No.  1,391.  Fed.  Cas.  No.  4,430;  see  also  Claflin 

4Fraser  v.   Weller,   6  McLean,   11,  v.    Steinberg,   2   Dill.   324,   Fed.   Cas. 

Fed.  Cas.  No.  5,064;  see  post,  §  900.  No.  2,777.     If  there  was  no  State  at- 

sKing  v.  Davis,  137  Fed.  223.  taclinient    law,    tlie    reniedv    was   not 

sPost,  §§  1399,  et  seq.  availalile  in  the  Federal  c<jurt.    Binns 

.  !>Post,   §§  1412-1414.  v.  Williams.  4  :\IcLean,  580,  Fed.  Cas. 

loAct  June  1,  1872,  c.  255,  S  6,  17  No.   1,423. 
Stat.  197. 

848 


Procedure] 


REMEDIES    BY    ATTACHMENT. 


§   005   [b] 


tion  of  an  attachment. is  So  also  the  removal  laws  have  from  the  first 
n:ade  provision  respecting  the  efficacy  after  removal  of  an  attachment  pro- 
cured in  the  State  court. i^  The  conformity  requirements  of  this  section 
relate  primarily  to  questions  of  procedure  and  not  of  jurisdiction,  and  er- 
ror in  its  construction  or  application  would  not,  ordinarily,  at  least, 15 
involve  a  jurisdictional  question. 1 6  It  is  at  most  mere  error  and  not  a  ju- 
risdictional defect,  where  the  affidavit  is  claimed  to  be  insufficient ;  i  t  or 
where  a  party  is  permitted  to  attach  for  a  claim  not  yet  due. is 

[b]Scope  and  extent  of  power  to  adopt  State  attachment  law. 

In  general  the  State  attachment  laws  are  in  force  in  and  followed  by  the 
Federal  courts. 2  So  the  State  decisions  construing  a  State  attachment  law 
will  ordinarily  be  followed  by  the  Federal  courts. 3  The  State  law  as  to  the 
furnishing  of  security  applies.*  The  State  law  directing  the  method  of 
dctcnnining  questions  of  prioritys  or  the  rights  of  successive  attaching 
creditors.s  and  are  properly  followed.  Where  property  has  by  attach- 
ment of  the  marshal  passed  into  the  custody  of  the  Federal  court,  other 
creditors  and  parties  interested  may  come  before  it  for  adjudication  of  their 
rights  though  in  their  case  there  would  be  no  diverse  citizenship,  nor  value 
in  dispute  sufficient  to  give  the  court  jurisdiction."  Such  a  proceeding  is 
ancillary. s  Suit  upon  the  attachment  bond  is  similarly  ancillary,  and  main- 
tainable regardless  of  citizenship.s  Since  R.  S.  §  985io  empowers  the  Feder- 
al court  to  issue  execution  operative  in  other  judicial  districts  of  a  State, 
it  is  proper  so  to  issue  the  writ  of  attachment  where  the  State  law  per- 
mits attachment  to  run  in  anr  county  of  the  State. n 


Impost.  S  n06:  see  Flv  v.  Hanks. 
1  \\'.  L.  :\r.  107,  Fed.  Cas.  Xo.  4.4.30. 

I'iSee  judiciary  act  Sept.  24.  1780. 
§  12.  1  Stat.  7fl;  80:  New  E.  S.  Co. 
V.  Bliven.  3  Blatchf.  240.  Fed.  Cas. 
Xo.  ]0.1.-)(i:  see  post.  §  115.3. 

i5But  it  would  seem  that  a  hold- 
ing that  process  of  foreign  attach- 
ment was  pormissihle  in  Federal 
courts  would  raise  a  jurisdictional 
question. 

ifiSchunk  v.  Moline.  etc.  Co.  147  U. 
S.  .'507.  37  L.  ed.  2.55.  13  Sup.  Ct. 
Rep.  416. 

ivErstein  v.  Rotlisclnld.  22  Fed.  01  -. 
see  Ely  v.  Hanks.  1  W.  L.  :\1.  107. 
Fed.  Cas.  Xo.  4.430. 

isSchunk  v.  Moline,  etc.  Co.  147 
U.  S.  507.  37  L.  ed.  255.  13  Sup.  Ct. 
Rep.  41 G. 

2Rothschild  v.  Knight.  184  U.  S. 
341.  40  L.  ed.  .580.  22  Sup.  Ct.  Rep. 
391  :  Lehman  v.  Berdin.  5  Dill.  340. 
Fed.  Cas.  Xo.  S.215:  Mather  v.  Xes- 
bit.  13  Fed.  872.  4  ]\IcCrarv.  505; 
Bales  V.  Days,  17  Fed.  170.  5  Mc- 
Crary.  342;  LafoUye  v.  Carriere,  24 
Fed.  340:  Brooks  v!  Fry,  45  Fed.  770. 


3Third  Xat.  Bank  y.  Teal.  5  Fed. 
507.  4  Hughes,  572:  Peoples'  S.  Bank 
y.  Batchelder.  51  Fed.  134.  2  C.  C.  A. 
120:  Rich  v.  Adler  Co.  71  Fed.  151. 
18  C.  C.  A.  15:  Lehman  y.  Berdin,  5 
Dill.  340.  Fed.  Cas.  Xo.  8.215;  Fleitas 
v.  Cockrein.  101  U.  S.  301.  25  L.  ed. 
034. 

•fSinger  Mfg.  Co.  y.  Mason.  5  Dill. 
488.  Fed.  Cas.  Xo.  12.f>03.  See  Flei- 
tas V.  Cockrom.  101  V.  S.  ,301.  25  L. 
ed.  054. 

nBates  V.  Dnvs.  17  Fed.  167.  5  Mc- 
Crary.  342. 

^Bankers,  etc.  Co.  v.  Chicago  C. 
Co.  28   Fed.  308. 

TKrippendorf  v.  Ilvde.  110  V.  S. 
284.  28  L.  c<l.  140.  4  Sup.  Ct.  Rep. 
27;  Cumbel  v.  Pitkin.  124  V.  S.  155, 
.31  L.  ed.  3S2.  8  Sup.  Ct.  Rep.  .379; 
Rice  V.  Adler  0.  Co.  71  Fed.  151.  IS 
C.  C.  A.  15. 

sSee  ante.  §  3. 

9  Files  V.  Davis.  118  Fed.  465. 

10 Post.  §  1865. 

iiTreadwell  v.  Sevmour,  41  Fed. 
579. 


Fed.  Proc— 54. 


849 


§  905   [c]  PROCEDUKE    IN    COMMON  LAW    CAUSES.  [Code  Fed. 

But  the  State  law  as  to  arrest  in  civil  eases  is  not  adopted  by  this  sec- 
tion ;14  and  the  matter  of  attachment  against  a  national  bank,  is  affected 
by  another  provision. 1 5  This  section  has  no  refernce  to  attachment  in 
equity  and  does  not  negative  the  existence  of  the  writ  in  Federal  courts  of 
equity.i6  An  attachment  has  been  held  valid  under  R.  S.  S  918,  and  a 
Federal  court  rule,  though  it  was  not  made  returnable  as  provided  by  State 
law.i" 

[c]  Limitations  upon  power  to  adopt  State  law,  and  variations  from  State 

law. 
There  are  general  Federal  statutes  regarding  amendments  1 9  which  are 
applicable  to  attachment  proceedings.2  0  So  that  while  amendments  are  of- 
ten allowed  in  conformity  to  State  statutes  regarding  amendment,  the  ab- 
sence of  such  State  law  will  not  prevent  a  Federal  court  amending  a  de- 
fective affidavit  on  attachment  under  the  power  conferred  by  the  Federal 
statute. 1  The  State  practice  ])ermitting  dissoluion  of  attachment  by  a 
judge  in  vacation  has  been  deemed  inapplicable  in  the  Federal  court  and 
inconsistent  with  the  Federal  laws. 2 

[d]  — no  power  of  foreign  attachment. 

Where  the  State  law  autliorizes  attachment  as  a  means  of  compelling- 
appearance  by  one  without  the  jurisdiction,  such  practice  is  not  adopted  for 
the  Federal  courts  by  virtue  of  this  section; 4  either  originally  or  on  re- 
moval.^  Federal  process  must  be  served  personally  upon  a  defendant  within 
tlie  district, 6  except  in  a  few  specific  cases."  It  would  seem  however  that 
as  defendant  may  waive  proper  service  by  a]ipcarance,8  imi>roper  issuance 
of  attachment  would  be  cui'od   by  such  appearance. 

[e]  Garnishment. 

There  are  special   F«>deral   provisions  regarding  garnishment  in  suits  by 

i4United    States     v.     Griswold,     5  706.  2()  L.  ed.  462;  Nazro  v.  Cragin. 

Sawy.  25.     See  post,  §  ]oo8.  3  Dill.  -174.  Fed.  Cas.  No.  10.062:  An- 

isPost.  §  907.  derson  v.  Shaffer,  10  Fed.  2(i6:  Lack- 

lesteam    S.    C.    Co.    v.    Sears,    20  ett  v.  Kuml)augh.  45    Fed.    23.    .30: 

Blatchf.  23.   9  Fed.  8.      See    ante,    §  Cent.  T.  (^o.  v.  Chattanooga  Rv.  Co. 

841    fc].  68  Fed.  685;  Dormitzer  v.Tll.  Bridge 

iTYokev   V.   Boston,   etc    R.   R.    130  ("^o.   6    Fed.    218:    ITarland    v.   I'niteil 

Fed.  992."  Lines  Tel.  Co.  40  Fed.  -308.  6  L.R.A. 

i9Ante.  §  813.  252:  Chittenden  v.  Darden,  2  Woods. 

20Tilton   V.    Cofield.    93    U.    S.    167,  437.  Fed.  Cas.  No.  2.688:  Butt erworth 

23  L.   ed.   860:   Rothchild  v.    Knight,  v.  TTill.  114  U.  S.  128.  29  L.  ed.  119.5 

184  U.  S.  341.  46  L.  ed.  580.  22  Sup.  Sup.  Ct.  Rep.  796.     Contra,  see  Onil- 

Ct.  Rep.  391 :  Matthews  v.  Densniore,  lou  v.  Fontain.  32  Leg.  Tnt.  362.  Fed. 

109  U.   S.  219,  27  L.  ed.  913.  3   Sup.  Cas.  No.  5,861. 

Ct.  Rep.  126;   Wolf  v.  Cook.  40  Fed.  r.Lackett  v.  Rumbaugh,  45  Fed.  2:1. 

432:    Peoples    Sav.    Bank    v.    Batch-  eAnte.  §  8.53.  Erstein  v.  Rothschild, 

elder,  51  Fed.  130,  2  C.  C.  A.  126.  22  Fed.  61.  2  C.  C.  A.  126. 

lErstein  v.  Rotschild.  22  Fed.  61.  TSee    §    856. 

2Claflin   V.    Steinberg.   2    Dill.    326.  sToland   v.    Sprague.    12    Pet.    3.W. 

Fed.   Cas.   No.  2,777.  331,  9  L.  ed.  1106.     Ante,  §   860. 

4E.\'   parte  Raihvav   Co.   103   V.   S. 

850 


Proceduie]  KKMEUIES   AS  TO   ATTACHMENT.  i   906 

the  United  States.!^  But  in  (itlier  respects  local  laws  as  to  garnishment 
comes  within  the  plirase  "attachment  or  other  process,"  of  R.  S.  §  915,  and 
are  in  force  in  the  Federal  courts.io  Where  a  State  law  authorizes  garn- 
ishment in  aid  of  an  execution,  such  remedy  is  also  available  in  the  Feder- 
al courts  under  R.  S.  §  916  adopting  State  execution  laws.n 

[f]     Adoption  of  State  attachment  laws  by  rule. 

While  the  act  of  1872  limited  the  power  to  make  rules  previously  exist- 
ing under  the  general  conformity  enactment, ^  3  it  still  left  the  Federal 
courts  this  larger  discretion  in  the  matter  of  attachments.  They  are  not 
obliged,  as  under  R.  S.  §  914,  to  adopt  existing  remedies  in  the  matter  of 
attachment.  The  cases  show,  however,  that  the  general  tendency  of  the 
courts  is  to  keep  abreast  of  the  State  laws  in  that  respect  and  to  adopt 
changes  therein,  as  soon  as  made.  So  well  recognized  is  this  tendency  to 
the  stricter  conformity  imposed  in  other  matters  of  practice  by  R.  S.  § 
914,  that  upon  appeal  "in  the  absence  of  convincing  evidence  to  the 
contrary  the  presumption  of  the  appellate  court  is  that  the  remedial 
statutes  in  force  in  the  States  at  the  time  when  proceedings  under  them 
were  taken  in  the  Federal  courts  had  been  adopted  by  those  couits.  eitlier 
by  written  rule  or  by  general  practice."!*  In  this  respect  written  rule  is 
no  more  necessary  than  it  was  under  the  early  conformity  laws;  biit  uni- 
form practice  and  judicial  decisions  in  conformity  therewith,  are  sufficient 
evidence  of  the  de  facto  adoption  of  a  rule.is 

§  906.  — State  law  as  to  dissolution  of  attachment  appl^'es. 

An  attachment  of  property,  upon  process  instituted  in  any  court 
in  the  United  States,  to  satisfy  such  judgment  us  may  be  recovered 
by  the  plaintiff  therein,  except  in  the  cases  mentioned  in  the  pre- 
ceding nine  sections  [i.  e.,  relating  to  attachment  in  suits  by  the 
United  States  against  postmasters,  etc.^^]  shall  be  dissolved  when 
any  contingency  occurs  by  which,  according  to  the  laws  of  the  State 
where  said  court  is  held,  such  attachment  would  be  dissolved  upon 
like  process  instituted  in  the  courts  of  said  State :  Provided,  That 
nothing  herein  contained  shall  interfere  with  any  priority  of  the 
United  States  in  the  pa^onent  of  debts. 

R.  S.     §  933.  U.  S.  Comp.  Stat.  1901.  p.  689. 
This  provision   was  originally  enacted  in   184S.ii»     State  insolvency  laws 

sPost.  S§  1412-1414.  isAnte.   §   900    [a]. 

io\\-ilp  V.  Cohn.  63  Fed.  759;  Ran-  i4Loga.n  v.  Goodwin.  104  Fed.  490. 

dolph    v.   Tandv.   98    Fed.    939,  39   C.  43   C.    C.   A.   658.     See   also    Citizens 

r.    A.    351  :    Logan    v.    Goodwin,    104  Bank  v.   Fanvell.    56   Fed.   570,   6    C. 

Fed.   490.  43   C.  C.  A.  658.   101    Fed.  C.  A.  24.     Ante,  S  805  [c]. 

654.  41  C.  C.  A.  573.  is  Ante.   S  805   [c]. 

iiCanal.  etc.   Co.   v.  Hart.   114  U.  isSee  post,  §§  1399  et  seq. 

S.  654,  29  L.  ed.  226.  5  Sup.  Ct.  Rep.  i^Act  March  14,  1848.  c.  18.  9  Stat. 

1127.     See  ix)st.  §  925.  U?,.     See  also  Act  February  23,  1865, 

851 


S   n07  PROCEDUUt:    in    COMMOX-LAW    causes.  [Code  Fed. 

very  commonly  provide  for  dissolution  of  an  attachment  upon  cession 
of  the  bankrupts  property.20  The  State  practice  upon  motion  for  release 
or  dissolution  of  attachment  has  also  been  followed. 2  But  the  Federal 
court  has  refused  to  conform  to  a  State  law  permitting  dissolution  by  a 
judge  during  vacation,  because  inconsistent  with  Federal  laws  as  to  the 
powers  of  a  Federal  judge. 3  So  also  the  State  law  as  to  appeal  from 
an  interlocutory  order  on  motion  to  dissolve  attachment,  has  no  application 
to  the  Federal  practice,^  as  the  conformity  provisions  do  not  apply  to  pro- 
ceedings for  review.  5 

§  907.  —  attachment  against  national  banks. 

No  attachment  .  .  .  shall  be  issued  against  such  associa- 
tion [a  National  bank]  or  its  property  before  final  judgment  in 
any  suit,  action,  or  proceeding,  in  any  State,  county,  or  municipal 
court. 

Part  of  R.  S.  §  5242,  U.  S.  Comp.  Stat.  1901,  p.  3517. 

This  enactment  also  declared  invalid,  transfers  in  contemplation  of  in- 
solvency and  forbids  injunction, t  and  execution, s  as  well  as  attachment 
prior  to  final  judgment.  The  proviso  forbidding  attachment  execution  and 
injunction  was  first  enacted  in  18739  and  was  incorporated  in  R.  S.  §  5242 
by  the  revision  of  1875.1 0  Since  R.  S.  §  915ii  empowers  Federal  courts 
to  issue  attachment  only  where  the  remedy  is  available  in  the  State  court, 
this  section  indirectly  disables  the  Federal  courts  as  well  at  the  State 
tribunals,  from  issuing  attachment  against  a  national  bank  in  advance  of 
final  judgment. 1-  The  provision  is  not  to  be  construed  as  applying  only 
whore  a  bank  is  insolvent,  nor  is  it  affected  by  the  later  act  of  18S213  re- 
stricting the  jurisdiction  of  Federal  courts  over  suits  by  and  against  na- 
tional banks.  14 

c.  47,   13  Stat.  434.     As  to  the  pur-  'See  post,  §  1118. 

pose  of  the  act  of   1848.   see   Elv  v.  sSee  post,  §  1874. 

TTanks,    1    W.   L.   M.    107,    Fed.   Cas.  9Act  March  3.  1873.  c.  269,  §  2,  17 

Xo.  4.430.  Stat.  603. 

2  0Tua  V.  Carriere,  117  U.  S.  201.  29  loAct  Februarv  18,  1875,  c.  80,  18 

L.    ed.    855,    6    Sup.    Ct.    Rep.    565:  Stat.  316,  320. 

Shwartz   v.   Cladin,   60   Fed.   676,    9  nAnte,  §  905. 

C.    C.    A.    204.     See    also    Muser    v.  laPacific  Nat.  Bank  v.  Mixter.  124 

Kern,  55  Fed.  916;  Heath,  etc.  Co.  v.  U.   S.  721.  31  L.  ed.  567,  8  Sup.  Ct. 

Union   Oil   Co.   83   Fed.   776;    Sloane  Rep.    718:    Garner    v.    Second    Xat. 

V.  Cbiniquy,  22  Fed.  213.  Bank.  66  Fed.  369.    But  the  same  is 

2Glidden  v.  Whittier.  46  Fed.  437;  not  true  of  injunction  in  the  Federal 

Feurerv.  Stewart.  82  Fed.  294:  Jenks  court:    Hower  v.   Weiss  M.  &  E.  Co. 

V.  Richarason,  71  Fed.  Siio.  55  Fed.  359.  5  C.  C.  A.  129. 

sClaflin   v.   Steinberg,   2   Dill.   324,  isAnte,  §  24. 

Fed.    Cas.    No.    2.777.  nVan  Reed  v.  Peoples  Nat.  Bank, 

4Logan  v.   Goodwin,   101   Fed.  054,  198    U.    S.    554,    49    L.    ed.    1161,   25 

41    C.    C.    A.   573.  Sup.  Ct.  Rep.  775. 

5See  ante,  §  900  [d]. 


852 


■ 


Proceduiel         KJKCTMENT   AND    STATUTORY    SUBSTITUTES.  §   909 

§  908.  —  replevin  and  statutory  substitutes  therefor. 

.State  laws  giving  a  remedy  by  replevin  for  securing  possession  of 
personal  property,  or  providing  statutory  substitutes  therefor,  such 
as  the  remedy  by  "claim  and  delivery,"  are  in  force  in  the  Federal 
courts  and  available  to  Federal  suitors  by  virtue  of  the  conformity 
requirements  of  E.  S.  §  914.^'^  There  is  a  provision  of  the  revised 
statutes  declaring  property  taken  under  the  revenue  laws  irreplev- 
iable.^^ 

Author's  section. 

If  a  State  has  abolished  replevin  the  remedy  is  no  longer  available  in 
the  Federal  court  there  sitting.is  The  statutory  action  of  claim  and  de- 
livery is  in  many  States  a  substitute  for  replevin  and  available  in  the 
Federal  court.20  State  decisions  construing  the  State  replevin  laws  will  be 
followed :i  and  the  State  law  as  to  the  obligation  upon  a  replevin  bond: - 
and  the  effect  of  the  giving  of  bond. 3  But  in  replevin  proceedings  brought 
by  the  United  States  the  provision  of  the  State  law  regarding  a  replevin 
bond  is  not  applicable  to  compel  the  United  States  to  furnish  such  a  bond.-i 
Where  property  is  in  the  custody  of  the  law  by  virtue  of  levy  thereon  by 
the  marshal  under  valid  writ,  a  replevin  in  another  court,  is  not  a  proper 
mode  of  relief. » 

§  909,     Ejectment  and  statutory  substitutes  therefor. 

The  State  laws  and  practice  providing  legal  as  distinguished 
from  equitablef^^  remedies  for  the  possession  of,  or  to  try  title  h> 
real  property,  are  in  force  in  the  Federal  courts  and  available  to 
Federal  suitors  by  virtue  of  the  conformity  requirement'^  of  E.  S. 
§  914,'^  and  by  virtue  also  of  E.  S.  §  721,^  making  State  laws  tlie 
rules  of  decision  in  Federal  courts. "^^^ 
Author's  section. 

iTAnte.  §  000.  2Douglass    v.    Douglass.    21     Wall. 

i>-Post.  ij   I.ISO.  104.  22  L.  ed.  479. 

i9Baltimore  &  O.  R.  R.  v.  Hamil-  3Cornett  v.  Williams,  20  Wall.  245. 

ton.  16  Fed.  181.     See  on  appeal  Ex  22  L.   ed.   257. 

parte    Baltimore,    etc.    R.   R.    lOS    U.  4T-nited   States   v.   Brvant,    111    U. 

S.  566,  27  L.  ed.  812.  2  Sup.  Ct.  Rep.  S.  4!)n.  28  L.  ed.  496,  4  Sup.  Ct.  Rep. 

876.  601 . 

20Vance  v.   W.  A.   Vandercoek   Co.  SLammon  v.  Fensier,  111  U.  S.  19. 

170  U.  S.  473.  42  L.  ed.  1113.  18  Sup.  28   L.  ed.  337,  4   Sup.  Ct.  Rep.  286: 

Ct.  Rep.  645.  Gumbel  v.  Pitkin,  124  U.  S.   145.  31 

iWood  V.   Weimar.   104  U.   S.   791.  L.  ed.  374.  8  Sup.  Ct.  Rep.  379.     See 

26  L.  ed.  781:   Scihulenberg  v.  Harri-  ante,  §  17. 

man,  21  Wall.  64,  22  L.  ed.  551.  "Ante.    S   900. 

-Ante,  §  12. 
853 


§   009    [a] 


PUOCEDURE    IN    COMMON-LAW    CAUSES. 


[Code  Fed. 


[a]  Remedies  by  ejectment,  writ  of  right,  trespass  to  try  title  and  un- 

lawful detainer. 
The  Federal  coourts  have  frequently  adopted  and  enforced  ejectment  as 
a  reniedj^  for  recovery  of  possession  of  real  property  following  the  State 
rules  as  to  pleading  and  proof  thereon. lo  So  a  local  remedy  by  petitory 
action  is  available  in  the  Federal  court. n  Writ  of  right  was  at  one  time  a 
common  remedy  and  has  been  entertained  by  the  Federal  courts. 12  Tres- 
pass to  try  title  is  the  common  remedy  in  some  jurisdictions  and  is  en- 
forced by  the  Federal  courts  there  sitting.is  The  same  is  true  of  the  ac- 
tion of  forcible  entry  and  unlawful  detainer.i4  In  all  these  actions  the 
Federal  courts  under  R.  S.  §  914  properly  follow  the  forms  and  modes  of 
])roceeding  prescribed  by  the  State  laws.  Under  R.  S.  §  721  and  under 
( ontrolling  principles  of  law  the  substantive  law  administered  by  the  Fed- 
eral courts  in  such  cases  are  also  in  the  main  derived  from  the  law  of  the 
State  where  the  property  is  situated.^s 

[b]  Restriction  as  to  equitable  remedies,  titles,  or  defenses — quieting  title. 
Tlie  preservation  of  the  distinction  betweeen  law  and  equity  in  the  Federal 

courts  sometimes  prevents  a  strict  conformity  between  the  Federal  and 
State  practice  in  the  matter  of  suits  for  the  recovery  of  lands.  Thus  the 
Federal  courts  will  not  follow  State  courts  in  permitting  ejectment  or 
similar  remedy  at  law  to  be  maintained  upon  an  equitable  title;  nor  in 
permitting  equitable  defenses. is  The  modern  statutory  action  to  quiet 
title  has  been  the  source  of  perplexity  in  Federal  practice.  It  is  settled 
that  it  is  equitable  in  character  and  therefore  not  goverened  by  the  con- 
formity requirements  of  R.  S.  §  914.19 

§  910.     Right  of  trial  by  jury  guaranteed. 

In  suits  at  common  law/°^  where  the  value  in  controversy  vshall 
CA'ceed  twenty  dollars,  the  right  of  trial  by  jury"^*^^  shall  be  pre- 
served."^^^ 

Part  of  7th  Amendment.  U.  S.  Constitution 

loSee  McArthur  v.   Porter,   6   Pet.         1 3p,rownsville   v.    CaA^azos,    100  U. 

211.  8  L.  ed.  371.  following  the  State  S.    145.  25  L.  ed.  574:    Cox  v.  Hart, 

practice  at  a  time  when  the   fictions  145  U.  S.  389,  30  L.  ed.  741.  12  Sup. 

were  presented :  Barrows  v.  Kindred,  Ct.  Rep.  962;  Cooke  v.  Aver  v.  147  U. 

4  ^^'all.  402.  IS  L.  ed.  383.  following  ^.  393.  37  L.  ed.  209,  13  Sup.' Ct.  Rep. 

tlie  Illinois  practice  in  which  all  fie-  340:    Grayson    v.    Breekeiiridg:',    108 

tions   abolished.     Metzgar   v.  McCoy.  Fed.  583,  47  C.  C.  A.  504;  Cochran  v. 

105  Fed.  676;  King  v.  Davis,  137  Fed.  Schreiber.  107  Fed.  371.  46  C.  C.  A. 

198.  '  349. 

iiGilmer    v.    Poindexter,    10   Plow.        i^See   Lehmen   v.   Dickson.   148  U. 

267,   13  L.  ed.  411;   United  States  v.  S.  70.  .37  L.  ed.  373,  13  Sup.  Ct.  Rep. 

King,   3    How.    787,    11    L.    ed.   824.  481  :  Malonev  v.  Adsit,  175  U.  S.  289. 

i2Green    v.   Liter,    8    Cranoh,    249,  44  L.  ed.  163,  20  Sup.  Ct.  Rep.   115; 

3   L.  ed.   545:    Homer  v.  Brown,   10  Ellis  v.  Fitzpatrick.  118  Fed.  430,  55 

How.    364.    14    L.    ed.    970:    Green    v.  C.   C.    A.    260. 


Watkins,  7  Wheat.  29.  5  L.  ed.  388: 
Inglis  V.  Sailors  S.  H.  3  Pet.  133. 
7  L.  ed.  617. 


15  Ante,  §§  10-12. 

IS  Ante,  §  800   [a]    [b]. 

10 Ante,  §  800. 


854 


Procedure]  RIGHT  OF  TRIAL  BY  JURY.  §   910 

[a]     In  general. 

The  remainder  of  the  Seventh  Amendment  was  proposed  Sept.  25,  1789, 
and  ratified  Dec.  15,  1791.  The  portion  of  the  amendment  which  is  omitted 
above,  declares  that  "no  fact  tried  by  a  jury  shall  be  otherwise  re-ex- 
amined in  any  court  of  the  United  States,  than  according  to  the 
rules  of  the  common  law."2  The  amendment  merely  guarantees  and 
does  not  create  the  right  of  jury  trial. 3  It  is  settled  that  this 
guaranty  of  trial  by  jury  refers  to  Federal  and  not  State  courts  and  is  a 
limitation  upon  the  powers  of  the  Federal  government. *  It  applies  in  the 
District  of  Columbiao  and  to  the  organized  territories  which  have  been 
brought  under  the  Constitution; 6  to  tlieir  legislative  and  judicial  officersv 
as  also  to  a  Terz'itorial  governor  ;8  and  to  tribunals  established  under  a  pro- 
visional government  in  territory  covered  by  the  Constitution, 9  but  not  to 
consular  courts. lo  One  effect  of  this  guaranty  is  to  prevent  a  blending  of 
equitable  and  legal  matters  in  such  a  way  as  to  deny  the  right  of  trial  by 
jury.ii  It  abolishes  wager  of  law  if  in  fact  that  ever  had  any  existence.12 
It  does  not  prevent  waiver  of  jury  in  common  law  causes  and  Congress 
lias  expresslj'  pi-ovided  for  trial  in  cases  of  waiver.is  So,  it  does  not 
prevent  Congress  conferring  an  absolute  right  to  jury  trial  in  other  than 
common -law  causes.  Bankruptcy  proceedings  are  equitable  in  character, 
yet  Congress  has  given  an  absolute  right  to  jury  trial  in  certain  bankruptcy 
proceedings.!^  But  it  does  prevent  parties  from  resorting  to  equity  where 
by  Federal  equity  standards  there  is  adequate  remedy  at  law. is  In  equity 
a  jury  may  be  called  inis  ]nit  its  verdict  is  merely  advisory. i' 

2See  post.   §  2081.  yScott   v.    Billgerrv.   40   Miss.    119. 

3McBrirle  v.  Stradlev.  103  Ind.  465;  lolii  re  Ross.  140 'U.  S.  464,  35  L. 

Sf'elev  V.  Bridgeport.  53  Conn.  1.  od.  581,  11   Sup.  Ct.  Rep.  897. 

^Livingston  v.  Moore,  7  Pet.  409,  8  nScott    v.    Xpelv.    14O    U.    S.    106. 

L.    ed.    751;    Edwards    v.    Elliott.    21  35  L.  ed.  358.  11   Sup.  Ct.  Rep.  712; 

Wall.  557.  22  L.  ed.  487:    Walker  v.  Lilienthat    v.    MeCormick.    117    Fed. 

Sauvinet.  92  U.  S.  92,  23  L.  ed.  678;  89.  54  C.  C.  A.  475. 

Pearson  v.  Yewdall,  95  U.  S.  296.  24  i2Childress    v.    Emory.    8    Wheat. 

L.  ed.  436;    Bavlis  v.  Travelers'  Ins.  642,  5  L.  ed.  705. 

Co.   113   U.   S. '321,  28  L.   ed.   989,  5  isParsons    v.  Armour.   3  Pet.  425, 

Sup.    Ct.    Rep.    494;    Eilenbecker    v.  7  L.  ed.  724.    See  post.  §  914. 

Phimouth    Co.    134   U.    S.    35.   33   L.  i^See  Elliott  v.  Toeppmer,   187  U. 

ed.  801.  10  Sup.  Ct.  Rep.  424.  S.   331.   332.   47   L.   ed.  202,   23   Sup. 

5Capital  T.  Co.  v.  Hof,   174  U.   S.  Ct.   Rep.    133. 

5,  43  L.  ed.  873,  19  Sup.  Ct.  Rep.  580.  isScott   v.    Neelv.    140   V.    S.    106, 

cCallan  v.   Wilson,  127  U.   S.  550.  35  L.  ed.  358.  11  Sup.  Ct.  Rep.  712; 

32  T..  ed.  223.  8  Sup.  Ct.  Rep.  1301  ;  United  States  v.  AVhite,  9  Sawy.  125, 

Walker  v.  Xew  Mexico  R.  R.   165  U.  17   Fed.   561;    Coles   v.   Northrup.   06 

S.  595.  41  L.  ed.  837,  17  Sup.  C.  Rep.  Fed.  831.  14  C.  C.  A.  138;  In  re  Foley. 

421  :    Thompson    v.    Utah.    170   V.    S.  76  Fed.  390;   Ignited  States  v.  Debs, 

349.  42  L.  ed.  1061,  18  Sup.  Ct.  Rep.  64  Fed.  724:  Crand  R.  R.  R.  v.  Spar- 

620.     See  Hawaii    v.    Maiddchi.    190  row,  30  Fed.  210.  1  L.R.A.  4S0;  Ro.ss, 

I'.   S.    Ifl7.   47    L.    ed.    1016.    23    Sup.  etc.  Co.  v.  Southern,  etc.  Co.  72  Fed. 

Ct.  Rep.  787.  957. 

vWebster  v.  Reid.  11  How.  4.37.  13  leFitton    v.    Phoenix    Ins.    Co.    23 

L.    0(1.    761  :    Whallon   v.   Bancroft.    4  Blatchf.  110,  23    Fed.   3. 

TVIinii.  109.  ivlda-ho.  etc.   Co.  v.  Bradburv,  132 

KMaim  of  Reside,  9  Op.   At.   Gen.  V.  S.  515.  33  L.  ed.  437,  10  Sup.  Ct. 

200  P'^P-    177:    Perego   v.    Dodge.    163   U. 

855 


§  910   [bj  rUOCEDUKE    IN    COMMON-LAW    CAUSES.  [Code   Fed. 

[bj     What  constitutes  trial  by  jury. 

Trial  by  jury  within  the  meaning  of  this  amendment  means  the  common 
law  jury  of  twelve  men  in  the  presence  and  under  the  superintendence  of  a 
judge  empowered  to  instruct  them  upon  the  law  and  advise  them  upon  the 
facts. 20  A  territorial  law  permitting  a  verdict  by  nine  jurors  or  any  less 
than  the  twelve  is  invalid. i  But  a  Territory  may  require  the  jury  to  sub- 
mit answers  to  special  interrogatories  as  well  as  its  general  verdict  and 
permit  the  court  to  choose  between  them. 2 

[c]     To  what  cases  applicable. 

The  guaranty  of  jury  trial  does  not  apply  where  less  than  twenty  dol- 
lars is  in  controversy. 5  It  does  not  apply  to  equity  cases; 6  nor  to  suits 
in  admiralty.''  Bankruptcy  proceedings  are  equitable  in  character  although 
the  statute  gives  a  right  of  jury  trial  in  certain  cases. s  Suits  iigainst  a 
receiver  though  of  a  common-law  character  are  nevertheless  in  a  coint  of 
equity  where  no  right  to  a  jury  exists.9  It  has  been  said  that  the  phnisr- 
"in  suits  at  common  law"  embraces  all  suits  not  of  equity  or  admiralty 
jurisdiction.! 0  But  the  amendment  does  not  apply  to  suits  against  the 
United  States  in  the  circuit  court  or  Court  of  Claims; n  or  to  recover  du- 
ties paidi2;  nor  to  special  statutory  proceedings  and  inquiries  thereunder, 
such  as  an  examination  of  a  claim  for  services  under  the  fugitive  slave 
law,i3    or   proceedings   for  abatement    of   an    unlawful    inclosure  of   public 

S.  160,  41  L.  ed.  114,  16  Sup.  Ct.  Rep.  Fed.     Cas.    No.     0,884.       Bankniptcv 

071.  proceedings  are  equitable  in  cliarac- 

20Capitol    T.    Co.   v.    Hof,    174   U.  ter:    Elliott   v.   Toeppner.   187  U.   S. 

S.   13-1<>,  4.3  L.  ed.  873.  19  Sup.  Ct.  ,3;31,  47  L.  ed.  202,  23  Sup.  Ct.  Rep. 

Rep.   580:    Maxwell    v.    Dow,   176   U.  133. 

S,  586.  44  L.  ed.  599,  20  Sup.  Ct.  Rep.  7 Waring    v.    Clarke,    n    IIow.    441. 

448.  494;   Thompson  v.  Utah,  170  U.  12  L.  ed.  226;  The  Huntress,  2  Ware 

S.   343,   42   L.   ed.   1061,  18   Sup.   Ct.  (Dav.   82)    89.  Fed.   Cas.   No.   6.914; 

Rep.  620.  Bains  v.   The   James   and   Catherine. 

lAmerican  P.  Co.  v.  Fisher,  106  U.  Bald.  544,  Fed.  Cas.  No.  756:  Ignited 

S.  467,   41   L.   ed.   1079,   17   Sup.   Ct.  States  v.  La  Vengeance,  3  Dall.  297, 

Rep.  018:   Springville  v.  Thomas,  166  1   L.  ed.  610. 

S.   708,   41    L.   ed.    1172,   17   Sup.   Ct.  sElIiott  v.  Toeppner,  187  U.  S.  331, 

Rep.  717:  Kleinschmidt  v.  Dunphy.  1  47  L.  ed.  202,  23  Sup.  Ct.  Rep.  133.; 

Mont.  118.     See  Hawaii  v.  Mankiclii,  In    re    Rude,    101     Fed.    805;    In    re 

190  U.  S.  197,  47  L.  ed.  1016,  23  Sup.  Christensen,  101  Fed.  243.     See  post, 

Ct.  Rep.  787.  §  2200  et  seq. 

2Wa.lker  v.  New  Mexico,  etc.  R.  R.  sKennedv  v.  Indianapolis  C.  R.  R. 

165  U.  S.  593,  41  L.  ed.  837,  17  Sup.  2  Flip.  704.  3  Fed.  97. 

Ct.  Rep.  421.  loParsons    v.    Bedford,   3   Pet.   447. 

oWhallon  v.  Bancroft.  4  Minn.  109,  7  L.  ed.  732. 

eShiolds  v.   Thomas,  18  How.  253,  nMcElrath   v.   United    States.   102 

15  L.  ed.  368;  Barton  v.  Barbour.  104  U.    S.   440.   20  L.   ed.   189;    Torrey  v. 

U.  S.  133,  26  L.  ed.  673;  Woodworth  United  States,  42  Fed.  207. 

v.   Rocers.   3   Wood.   &  M.   135,   Fed.  i2AuflFmordt  v.  Heddin,    137   U.   S. 

Cas.  No.  18,018;  Elv  v.  M.  &  B.  I\Ifg.  310,  34  L.  ed.  674,  11   Sup.  Ct.  Rep. 

Co.   4    Fish.    Pat.    64,    Fed.    Cas.    No.  103. 

4,431;  Buford  v.  Hollev,  28  Fed.  680:  i3:\riller   v.    McQuerrv,    5  McLean, 

Scott    V.    Billgerry,    40     Miss.    119:  469.  Fed.  Cas.  No.  9.58.3;  In  re  :\fnr- 

Motte  v.  Bennett,  2  Fish.  Pat.   042.  tin.  2  Paine,  348,  Fed.  Cas.  No.  9.154. 

856 


Procedure] 


TRIAL  OF  ISSUES  OF   FACT. 


§  911 


lands :i^  nor  an  assessment  of  damages  on  condemned  property,! 5  nor 
to  determine  claims  against  a  town,i6  nor  to  determine  titles. 1 7  It  does 
not  prevent  the  directing  of  a  verdict,is  nor  the  granting  of  a  non-suit; is 
nor  prevent  entry  of  judgment  by  default.  20  It  does  not  prevent  the  court 
from  requiring  remittitur  of  part  of  verdict  as  a  condition  of  denying  a  new 
trial; 2  or  an  affidavit  of  defense  as  a  condition  of  a  right  to  proceed  to 
trial.3  In  statutory  proceedings  summary  in  character  and  akin  to  equity 
suits  the  guaranty  of  jury  trial  has  no  application. 4  There  is  no  right  by 
jury  trial  iv  contempt  proceedings.^  It  does  apply,  however,  to  informa- 
tions in  re.'u  for  forfeitures  upon  land.6  and  frobids  trial  by  referees  without 
the  consent  of  the  parties. '7 

§  9il.     Issues  of  fact  in  district  court  triable  by  jury. 

The  trial  of  issues  of  fact  in  the  district  courts,  in  all  causes 
except  cases  in  equity  and  cases  of  admiralty  and  maritime  juris- 
diction, and  except  as  otherwise  provided  in  proceeding  in  bank- 
ruptcy, shall  be  by  jury. 

Part  of  R.  S.  §  566,  U.  S.  Comp.  Stat.  IDOL  p.  461. 

This  provision  was  originally  part  of  the  judiciary  act  of  1789.10  The 
remainder  of  the  section  relates  to  trial  of  issues  of  fact  in  admiralty. n 
The  bankruptcy  act  gives  an  absolute  right  to  jury  trial  upon  certain  is- 


14 Cameron  v.  United  States,  148 
U.  S.  .301.  37  L.  od.  459,  13  Sup. 
Ct.    Rep.    595. 

isUnited  States  v.  Jones.  109  V.  S. 
519.  27  L.  ed.  1015.  3  Sup.  Ct.  Rep. 
346:  Bauman  v.  Ross.  167  V.  S.  593. 
42  L.  ed.  270.  17  Sup.  Ct.  Rep.  966: 
United  States  v.  Engerman.  46  Fed. 
176:  Bonaparte  v.  Camden,  etc.  R.  R. 
Baldw.  205.  Fed.  Cas.  No.  1.617.  But 
see  Bank  of  Hamilton  v.  Dudlev,  2 
Pet.  525,  7  L.  ed.  496. 

leGuthrie  Xat.  Bank  v.  Guthrie. 
173  U.  S.  537.  43  L.  ed.  796.  19  Sup. 
Ct.  Rep.  513. 

1  "Barker  v.  Jackson.  1  Paine.  559. 
Fed.  Cas.  Xo.  989. 

isTreat  Mfg.  Co.  v.  Standard,  S. 
Co.  157  U.  S.  675.  39  L.  ed.  853.  15 
Sup.   Ct.   Rep.   718. 

isCoughran  v.  Bigelow.  164  T'.  S. 
308,  41  L.  ed.  442.  17  Sup.  Ct.  Rep. 
117. 

20Hircart  v.  Ballon.  9  Pet.  167. 
9  L.  ed.  85;  ^Vlillcr  v.  United  States. 
11  Wall.  268.  20  L.  ed.  135:  United 
States  v.  Distillery.  6  Biss.  483.  Fed. 
Cas.  Xo.  14.966. 

2Arkansas   Val.    Co.   v.   Mann,    130 


I'.  S.  69,  32  L.  ed.  854.  9  Sup.  Ct. 
Rep.  458. 

-x  idelity  &  D.  Co.  v.  United  States. 
187  U.  S.'315.  47  L.  ed.  194.  23  Sup. 
Ct.  Rep.  120. 

^Cameron  v.  United  States.  148  U. 
S.  301.  37  L.  ed.  459.  13  Sup.  Ct.  Rep. 
595. 

5ln  re  Bebs.  168  U.  S.  564.  39  L. 
ed.  1092.  15  Sun.  Ct.  Rep.  900:  King 
V.  Ohio.  etc.  R.  R.  7  Biss.  529.  Fed. 
Cas.    Xo.    7.800. 

sArmstrongs  Foundrv,  6  Wall.  766. 
18  L.  ed.  882;  United  "States  v.  One 
Hundred  and  Thirty''  Barrels.  1 
Bond.  587.  Fed.  Cas.  Xo.  15.938; 
United  States  v.  Distillery,  6  Biss. 
483.  Fed.  Cas.  Xo.  14.966:  United 
States  V.  Fourteen  Packages  of  Pins, 
Oilp.  235.  Fed.  Cas.  Xo.  15.151. 
Bui  not  forfeiture  within  admiralty 
jurisdiction:  Clark  v.  United  States, 
'2  Wash.  C.  C.  519,  Fed.  Cas.  Xo. 
2,837. 

"United  States  v.  Ratlibone.  2 
Paine.  578.   Fed.   Cas.  Xo.  16.121. 

10  Act  September  24.  1789.  c.  20, 
S  9.  1  Stat.  76:  act  February  26,  1845, 
c.  20.  5  Stat.  726. 

11  Post.    §    1283. 


857 


§   912  PROCEDURE    IN    COMMON-LAW   CAUSES.  [Corto  Fe.l. 

sues,  iiltliougli  bankruptcy  proceedings  are  really  equitable  in  character.12 
p]ven  if  this  provision  gives  a  right  to  jury  trial  in  other  than  the  "suits 
at  common  law"  contemplated  by  the  Seventh  Amendment,!  3  that  would 
be  no  ground  for  questioning  its  validity,  since  the  amendment  merely  pre- 
vents restriction  and  not  extension  of  the  right  of  jury  trial.  This  section 
for  instance,  requires  jury  trial  of  issues  of  fact  in  condemnation  pro- 
ceedings instituted  by  the  government  in  the  district  courts  although 
the  Seventh  Amendment  does  not  so  require.is  This  provision  for  jury 
trial  in  the  district  court  maj',  however,  be  waived  by  the  partiesie  al- 
though there  is  no  express  statute  as  to  waiver  of  jury  in  that  court. 1 7 
In  the  event  of  waiver,  however,  questions  both  of  law  and  fact  raised  at 
the  trial  are  not  reviewable  on  appeal;is  but  only  the  sufficiency  of  the 
declaration.  19 

§  912.     Issues  of  fact  in  circuit  court  triable  by  jury. 

The  trial  of  issues  of  fact  in  the  circuit  courts  shall  be  by  jury, 
except  in  cases  of  equity  and  of  admiralty  and  maritime  jurisdic- 
tion, and  except  as  otherwise  provided  in  proceedings  in  bank- 
ruptcy,^ and  by  the  next  section.^ 

R.  S.  §  648,  U.  S.  Comp.  Stat.  1901,  p.  525. 

This  provision  was  originally  part  of  the  judiciary  act  of  17895  which 
became  law  one  day  previous  to  the  submission  of  the  Seventh  Amendments 
for  ratification  by  the  States,  and  is  of  weight  as  a  contemporaneous  con- 
struction of  that  amendment."  The  general  scope  of  the  guaranty  of  trial 
by  jury  has  already  been  considered. s  It  is  not  an  infringement  of  the 
provisions  of  this  section  or  of  the  Seventh  Amendment,  for  the  court 
to  direct  a  verdict  where  the  evidence  with  all  inferences  in  its  favor  would 
be  insufiicient  to  support  a  contrary  verdict ;  9  nor  to  grant  a  nonsuit  where 
plaintift"   fails   to   make   out   a  case   that  would   support  a  verdict   in  hi« 

i2Elliott    V.    Toeppner,    187    U.    S.    Rep.   91;    Merrill   v.   Floyd.    50   Fed. 
331,  332,  47   L.   ed.  202.  23  Sup.  Ct.    850,  2  C.  C.  A.  58. 
Rep.  133.     See  post  §  2288.  isRush   v.    Newman,    58    Fed.    160, 

13 Ante,  §  910.  7  C.  C.  A.  136. 

i4Chapeli  V.  United  States,  160  U.        sSee  post,  §  2285  et  passim. 
S.  513,  514.  40  L.  ed.  514,  515.  16  Sup.        4Post.  S  913. 

Ct.  Rep.   397.     See   United   States   v.        sAct  September  24.   1789,  c.  20,   § 
Engerman,  46  Fed.  176.  12,    1    Stat.    79.     See    act    March    3, 

isBauman  v.  Ross,  167  U.  S.  593,    1865.  c.  86,  §  4,  13  Stat.  501. 
42  L.  ed.  270,  17  Sup.  Ct.  Rep.  966.  6 See  ante,  §  910. 

i6Rogers  v.  United  States.   141  U.        ^Capital  T.  Co.  v.  Hof,   174  U.  S. 
S.    548.^  35   L.    ed.    8.53.   12    Sup.    Ct.   9,  10.  43  L.  ed  S76,  19  Sup.  Ct.  Rep. 
Rep.  91  ;  Hendersons  Dist.  Spirits,  14    580. 
Wall.  44,  53,  20  L.  ed.  819.  sAnte.  §  910   [a]    [c]. 

i^See   post.   §  914,   which   provides        9Baylis  v.   Travellers   Ins.   Co.   113 
only  for  waiver  in  the  circuit  court.        U.  S. '320,  28  L.  ed.  989,  5  Sup.  Ct. 

isRogers  v.  United   States,   141   U.    Rep.    494;    Ferguson    v.    Artluir.    117 
S.   548,   35   L.   ed.    853,    12    Sup.    Ct.    U.  S.  490.  29  L.  ed.  982,  6  Sup.  Ct. 

Rep.  865. 
858 


Procedure]  WAIVER   OF   JURY  IN   CIRCUIT   COURT.  §   914    [a] 

favor.io  Where  material  facts  are  adnritted  by  the  pleadings  there  is  no 
issue  of  fact  requiring  the  intervention  of  a  jury.n  There  is  no  right  to 
a  jury  where  the  issue  is  one  of  law  and  not  of  fact. 12  It  is  error  for 
the  court  to  try  issues  of  fact  without  a  jury  or  waiver  thereof  ;13  and 
in  the  absence  of  counsel.^  It  is  error  for  the  court  to  try  some  issues  of 
fact  itself  and  submit  the  othei's  to  a  jury.is  An  act  of  1875  provides  for 
trial  by  jury  in  certain  cases  in  admiralty  and  equity.is 

§  913.     Certain  issues  of  fact  in  Supreme  Court  triable  by  jury. 

The  trial  of  issues  of  fact  in  the  Supreme  C!ourt  in  all  actions  at 
law  against  citizens  of  the  United  States  shall  be  by  jury. 
R.  S.   §  689,  U.  S.  Comp.  Stat.  1001.  p.  5G5. 

This  provision  was  originally  part  of  the  judiciary  act  of  1789.19  Tho 
scope  of  the  Supreme  Court's  original  juiisdiction  is  elsewhere  considered.2« 
Cases  involving  actions  at  law  therein  against  citizens  have  been  infre- 
quent,! and  none  seem  to  have  proceeded  to  a  trial  of  issue  of  fact. 

§  914.     Waiver  of  jury  in  circuit  court. 

Issues  of  fact  in  civil  cases  in  any  circuit  court  may  be  tried 
and  determined  by  the  court,  without  the  intervention  of  a  jury,^"^ 
whenever  the  parties,  or  their  attorneys  of  record,  file  with  the 
clerk  a  stipulation  in  writing  waiving  a  jury.'^*'^  The  finding  of  the 
court  upon  the  facts,  which  may  be  either  general  or  special,  shall 
have  the  same  effect  as  the  verdict  of  a  jury.'^^^"'^'^^ 
R.  S.  §  649,  U.  S.  Comp.  Stat.  1901,  p.  §  525. 

[a]     History  and  scope  in  general. 

This  provision  was  originalh'  enacted  in  1865.5  The  propriety  of  giving 
instructions  where  jury  is  waived  is  elsewhere  discussed.^  The  mode  and 
scope  of  review  in  cases  at  law  tried  without  a  jury  are  provided  by  R.  S. 
§  700."    An  act  of  1875  provides  for  jury  trials  under  certain  circumstances 

lOCentral  T.  Co.  v.  Pullmans  P.  C.  isHodges  v.  Easton,  106  U.  S.  412. 

Co.  139  U.  S.  24.  .35  L.  ed.  61,  11  Sup.  27  L.  ed.  169.  1   Sup.  Ct.  Rep.  307. 

Ct.  Rep.   478:    Coughran  v.   BigeloAv.  lePost.  §  1283. 

164  U.  S.  30'8.  41  L.  ed.  442,  17  Sup.  is  Act  September  24,  1789.  c.  20.  § 

Ct.    Hop.    117.  13,   1    Stat.  80. 

laiarion  Co.  v.  Coler,  75  Fed.  352.  20Ante.  §  35. 

21  C.  C.  A.  392.    So  on  plea  of  guilty:  iSee  Wisconsin  v.  Pelican  Ins.  Co. 

\\est  v.  Gammon,  98  Fed.  426,  39  C.  127  U.  S.  265,  3*2  L.  ed.  239,  8  Sup. 

C.  A.  271.  Ct.  Rep.  1370.     Ante,  §  2. 

i2lnterstate   C.  Com.    v.    Brinson,  5Act  iMarch  3.  1865,  c.  86,  §  4,  13 

154  U.  S.  488.  38  L.  ed.  1047,  14  Sup.  Stat.  501. 

Ct.  Kep.  1125.  eSee  post,  §  920.  [b]. 

mvearnev   v.   Case.   12   Wall.   285,  ^Post,  §  2082. 
20   L.   ed.   395. 

i4Morgan  v.  Gav,   19  Wall.  S3.  22 
L.  ed.  160. 

859 


(,    !)14    [b]  PROCEDURE    IN    COMMON-LAW    OAUSES.  [Code   Fed. 

ill  equity  and  admiralty^  cases.  That  act  did  iml  in  its  third  section,  re- 
peal this  provision  of  the  Revised  Statutes.''  This  section  applies  only 
i<)  the  circuit  court. i  o  But  parties  may  waive  a  jury  in  the  district  court 
though  no  statute  so  provides. n  So  they  may  A'alidly  waive  a  jury  in 
the  circuit  court  in  other  than  the  prescribed  statutory  mode.12  But  in 
such  a  ease  they  lose  all  right  to  have  the  proceedings  at  the  trial  re- 
viewed on  appeal. 13  Jury  may  be  impliedly  waived. i^  One  who  is  pres- 
ent by  counsel  and  goes  to  trial  without  objection  or  exception  voluntarily 
waives  a  jury  trial.i5  Intent  to  waive  may  be  presumed  from  the  con- 
duet  of  the  parties. 16  But  while  the  parties  may  waive  a  jury,  the 
court  has  no  power  to  deprive  them  of  the  right. 17 

[bj     Necessity  for  filing  written  stipulation  of  waiver. 

To  secure  a  right  of  review  on  appeal,  where  jury  has  been  waived  there 
must  be  "a  reasonably  strict  conformity"  to  the  requirements  of  this 
section.i  Oral  waiver  in  open  court  is  insufficient. 2  An  oral  agreement 
for  a  reference  is  insufficient. 3  The  waiver  must  be  unconditional.*  The 
record  must  affirmatively  show  waiver  in  the  statutory  mode.6  But  it 
need  not  contain  a  copy  of  the  .stipulation  as  the  fact  may  be  shown  by  the 

sPost.  §§  1067,  1283.  Sup.    Ct.   Hep.   474:    :Morgan   v.   Gay, 

sPhillips  V.  Moore.   100   V.   S.  208.  10  Wall.  81.  22  L.  ed.  100. 

25  L.  ed.  603.       The  third  section  of  leBank    of   Columbia    v.   O'Kelv.  4 

the  act  of  1875  was  repealed  in  1891.  Wheat.  243.  4  L.  ed.  550. 

See  U.   S.   Comp.   Stat.   1901.   p.   520.  iTHodges  v.  Easton.  106  V.  S.  411, 

loHoward  v.  Crompton.  14  Blntchf.  27  L.  ed.  169.  1  Sup.  Ct.  Rep.  307. 

333.  Fed.  Cas.  No.  6.758.     See  Rogers  1  Flanders   v.    Tweed,   9   Wall.    431, 

v.   United   States.    141    U.   S.   548,   35  19  L.  ed.   680. 

L.  ed.  853,  12  Sup.  Ct.  Rep.  91.  2Kearney  v.  Case.  12  Wall.  282.  20 

iiHenderson    Distilled    Spirits,    14  L.  ed.  397:  Oilman  v.  Illinois,  etc.  Co. 

Wall.    53,   20   L.    ed.    815;    Rogers   v.  91  U.  S.  614.  23  L.  ed.  405:   :\radison 

Cnited   States.   141   U.   S.   548.   35  L.  Co.  v.  ^^'arren,  106  IT.  S.  622.  27  L.  ed. 

ed.  853.  12  Sup.  Ct.  Rep.  91.  311,    2    Sup.    Ct.    Rep.    80:    Bond    v. 

i2Guild  V.    Frontin,    18    How.    135.  Dustin.  112  U.  S.  607.  28  L.  ed.  836, 

15  L.  ed.  290:  Kelsey  v.  Forsvth.  21  5  Sup.  Ct.  Rep.  296:  Roberts  v.  Ben- 
How.  85.  16  L.  ed.  32;  Campbell  v.  jamin.  124  U.  S.  64.  31  L.  ed.  334. 
Bayreau,  21  How.  223.  226,  16  L.  8  Sup.  Ct.  Rep.  393;  Dundee  Co.  v. 
cd.'96.  Hughes.    124    U.    S.    157,    31     L.    od. 

isCampbell    v.    Bayreau.    21    How.  357.   8   Sup.    Ct.   Rep.   377:    Andes  v. 

223.  16  L.  ed.  96;  Rogers  v.  United  Slauson.    130   U.    S.   438.   32    L.    ed. 

States,  141  U.  S.  548,  35  L.  ed.  853,  991,  9   Sup.   Ct.   Rep.   573;    Spalding 

12   Sup.  Ct.  Rep.  91:    Rush  v.  New-  v.  Manasse,   131    U.  S.  65.  33  L.  ed. 

man,   58   Fed.    160.   7   C.   C.   A.   136;  86,  9  Sup.   Ct.  Rep.   649:   Duncan  v. 

Lyons   v.   Lyons   Nat.   Bank.    8    Fed.  Atchison,    etc.    R.    R.    72    Fed.    810, 

371:    Branch    v.    Texas,    etc.    Co.    53  19C.  C.  A.  202. 

Fed.  849,  4  C.  C.  A.  52;   Cudahv  P.        sRush    v.    Newman,    58    Fed.    160, 

Co.  V.  Sioux  Nat.  Bank,  69  Fed.  782.  7  C.   C.  A.   136;   Dietz  v.  Lvmer.  63 

16  C.  C.  A.  409;  Duncan  v.  Atchison.  Fed.  758,  11  C.  C.  A.  410:  Cudahv 
etc.  Rv.  72  Fed.  808.  19  C.  C.  A.  202.  P.   Co.  v.   Sioux  Nat.  Bank.  69  Fed. 

i4Moncure  v.  Zunts,  11  Wall.  416,  784,  16  C.  C.  A.  409. 
20   L.   ed.    181;    Rich.mond   v.    Smith.         4Merrill    v.   Flovd.   53   Fed.    172.   3 

15  Wall.  429,  21  L.  ed.  200.  C.  C.  A.  494. 

isKearnev   v.    Case.    12   Wall.   275,         6:\radison  Co.  v.  Warren.  106  V.  S. 

20  L.  ed.  305;  Baylis  V.  Travelers  Ins.  (i22,   27   L.   ed.   220.  2    Sup.   Ct.   Rep. 

Co.    113  U.    S.   316,   28   L.   ed.   989.   5  86:  Hodges  v.  Easton.  106  V.  S.  412, 

860 


Procedure] 


WAIVER  OF   JUUY   IX    CIRCUIT   COURT. 


§  014    [c] 


findings,  or  by  bill  of  exceplions,  or  by  a  recital  in  the  judgment.'  A  lind- 
ing  or  recital  that  ''  by  stipulation  of  parties  hereto  duly  entered"  a  jury 
was  waived,  is  insufficient  to  show  that  it  was  written  and  filed  with  the 
clerk,  s  The  same  is  true  of  findings  or  recitals  that  "both  parties  in  open 
court  having  waived  a  jury  and  agreed  to  trial  before  the  court;"  and  re- 
cital "the  jury  being  waived:"  or  "the  parties  having  stipulated  to  submit 
the  case  for  trial  by  the  court  without  the  intervention  of  a  jury."^  ]>ut 
a  stipulation  submitting  agreed  facts  for  decision  thereon  by  the  coiu't 
is  a  sufficient  compliance  to  secure  the  right  of  review. lo  An  agreement  in 
writing  filed  with  the  clerk  and  signed  by  counsel  that  the  cause  may  be 
tried  by  the  court  without  a  jury,  is  sufficient.! i  Withdrawal  of  a  juror  and 
written  consent  to  a  reference  are  the  equivalents  of  an  express  waiver  of 
jury  trial. 1-  A  stipulation,  written  and  filed,  that  the  cause  be  tried  by 
the  court  io  equivalent  to  waiver.is 

[c  I     General  and  special  findings. 

'I'lie  court's  findings,  whether  general  or  special  has  the  same  effect  as 
the  verdict  of  a  jury.iT  It  is  essential  that  there  be  some  findings  to  sup- 
port the  judgment. IS  It  is  as  proper  for  the  court  to  announce  its  findings 
;uid  have  them  entered,  in  open  court,  as  to  write  and  file  them.i9  A  gen- 
eral finding  may  be  as  general  as  the  verdict  of  a  jury.20  If  the  court 
finds  specially  it  should  find  the  ultimate  facts.  A  statement  in  the  court's 
opinion  is  not  equivalent  to  a  special  finding.2     If  there  is  no  finding  other 


27  L.  ed.  in.  1  Stip.  Ct.  Eep.  307: 
Ham  V.  Edgell.  106  Fed.  820.  4r,  C.  C. 
A.  661:  Rush  v.  Newman.  58  Fp<1. 
158.  7  C.  C.  A.  136:  Abraham  v. 
Tx'vy,  72  Fed.  124,  18  C.  C.  A.  4G0: 
Branch  v.  Texas  Lumber  Mfg.  Co.  53 
Fed.   840.   4  C.  C.   A.   52. 

vKearney  v.  Case.  12  Wall.  283.  2S4. 
20  L.  ed.  397 :  Dickinson  v.  Planters' 
Rank.  16  Wall.  257.  21  L.  ed.  280: 
Bond  V.  Dustin.  112  U.  S.  607.  28  L. 
ed.  836.  5  Sup.  Ct.  Rep.  20(5. 

sCudahv  P.  Co.  V.  Sioux  Xnt.  Bank. 
69  Fed.  782,  16  C.  C.  A.  400. 

9  See  Rush  v.  Newnnan.  58  Fed. 
158.  7  C.  C.  A.  136:  Bond  v.  Dustin. 
112   r.   S.   608.   5   Sup.   Ct.    Pvep.   206. 

28  L.  ed.  835:  Merrill  v.  Flovd,  50 
Fed.  840.  2  C.  C.  A.  58 :  United  States 
V.  Carr.  61  Fed.  802,  10  C.  C.  A.  80. 

loWavne  Co.  Supervisors  v.  Kenni- 
cott.   103  U.  S.  554.  26  L.  ed.  487. 

iiCitizens  Bank  v.  Farwell.  56  Fed. 
571.  6  C.  C.  A.  24. 

i-Boogher  v.  New  York.  L.  T.  Co. 
103  U.  S.  00.  26  L.  ed.  312. 

isBamberger  v.  Terr^-.  103  V.  S. 
40,  26  L.  ed.  317. 

nMiller  v.  Life  Ins.  Co.  12  Wall. 


205.  20  L.  ed.  308:  Xorris  v.  Jackson, 
0  Wall.  125.  10  L.  ed.  608:  Rich- 
mond V.  Smith.  15  Wall.  437.  21  L. 
od.  200:  Ignited  States  v.  Dawson,  101 
U.  S.  .560.  25  L.  ed.  701.  So  if  spe- 
cial they  are  equivalent  to  special  ver- 
dict:  Gravson  v.  Lvnch.  163  U.  S. 
476.  41  L."ed.  230.  16  Sup.  Ct.  Rep. 
1064. 

IS  Insurance  Assoc,  v.  Boon..  95  U. 
S.   117.  24  L.  ed.  395. 

!!> Aetna  L.  Ins.  Co.  v.  Board  Co. 
70  Fed.  575,  25  C.  C.  A.  04. 

20 Aetna  L.  I.  Co.  v.  Board  Co.  79 
Fed.  575.  25  C.  C.  A.  04:  Norris 
v.  Jackson.  9  Wall.  125.  19  L.  ed. 
60S:  :Mining  Co.  v.  Tavlor.  100  V. 
S.  37.  25  L.  ed.  541  :  Miller  v.  Life 
Ins.  Co.  12  Wall.  .301.  20  L.  ed.  308: 
American  Xat.  Bank  v.  Watkins.  119 
Fed.  545.  56  C.  C.  A.  Ill  :  Kev  West 
V.  Baer.  m  Fed.  440.  13  C.  C.  A.  572: 
Aetna  L.  Tns.  Co.  v.  Board  Co. 
Com'rs.  70  Fed.  575.  25  C.  C.  A.  04. 

-Tlincklov  v.  Arkansas  Citv  60  Fdl. 
768.  16  C.  C.  A.  305:  Lehncu  v. 
Dickson.  148  IT.  S.  71.  37  L.  ed. 
373,  13  Sup.  Ct.  Rep.  481, 


861 


§   914    [c] 


PROCEDURE    IN    COMMON-LAW    CAUSES. 


[Cod-   Fed. 


than  the  court's  opinion  it  is  equivalent  to  a  general  finding.s  The  court's 
special  findings  must  be  sufficient  in  themselves; 4  and  should  be  separate- 
ly stated.5  Reference  to  another  case  for  findings  is  insufficient. 6  A  find- 
ing that  there  was  no  such  cotenancy  between  parties  in  a  mine  ,as  entitled 
plaintifif  to  an  accounting,  is  the  assertion  of  a  mere  legal  inference  and  not 
a  finding  of  fact."  If  the  meaning  of  a  term  of  art  is  a  material  fact  it 
should  be  included  in  special  findings. 8  A  decision,  mingling  fact,  discus- 
sion of  law  and  evidence  is  not  to  be  regarded  as  special  findings.9  There 
is  no  error  in  failing  to  find  an  evidential  factio  or  facts  merely  inci- 
dental to  those  found.ii  If  the  court  finds  only  evidentiary  and  not  ulti- 
mate facts,  this  is  error  and  judgment  should  be  reversed.i2  An  agreed 
statement  of  evidentiary  facts  will  not  supply  the  place  of  a  finding  of 
ultimate  farts  by  the  court.^4  If  one  finding  is  in  effect  a  legal  conclusion 
it  will  not  control  prior  specific  findings  from  which  an  opposite  conclusion 
properly  follows.is  It  rests  in  the  discretion  of  the  court  to  make  its  find- 
ings either  general  or  special.is  Thej'  cannot  be  both. 19  If  it  only  makes 
a  general  finding  the  sufficiency  of  the  facts  to  support  it  cannot  be  re- 
viewed.20  Xor  can  a  party  raise  that  question  bj'  a  request  that  the  court 
find  a  fact  a  given  way,  and  except  to  the  refusal  to  do  so;i  though  a 
motion  for  nonsuit  or  to  direct  a  verdict  is  available  to  this  end,  where  the 
evidence  is  not  conflicting.  Ordinarily  therefore,  the  court  should  make 
special  findings,  on  request. 2     For  if  there  are  special  findings,  their  legal 


^British  Q.  M.  Co.  v.  Baker  M.  Co. 
139  U.  S.  222,  35  L.  ed.  147.  11  Sup. 
Ct.  Rep.  523 :  Con.  Coal  Co.  v.  Polar 
W.  Co.  lOG  Fed.  798,  45  C.  C.  A.  638. 

4Miller  v.  Life  Ins.  Co.  12  Wall. 
301.  20  L.  ed.  398;  Corliss  v.  Pulaski 
Co.  1 16  Fed.  289.  53  C.  C.  A.  567. 

sMiller  v.  Life  Ins.  Co.  12  Wall. 
301,  20  L.  ed.  398. 

fiOlcott  v.  Ennis  C.  Co.  114  Fed. 
907.  52  C.   C.  A.  527. 

TKahn  v.  Smelting  Co.  102  U.  S. 
647.  26  L.  ed.  266.  See  United  States 
V.  Kelly.  89  Fed.  946,  32  C.  C.  A. 
441.  However  findings  sometimes 
necessarily  embody  a  legal  inference: 
Insurance  Co.  v.  Intern.  T.  Co.  71 
Fed.  88,  17  C.  C.  A.  616. 

8The  John  H.  Pearson,  121  U.  S. 
473.  30  L.  ed.  979,  7  Sup.  Ct.  Rep. 
1008. 

9Minchen  v.  Hart.  72  Fed.  294,  18 
C.    C.    A.    570. 

loKelsev  v.  Crowther,  162  U.  S. 
408,  40  L."  ed.  1017.  16  Sup.  Ct.  Rep. 
808. 

iiHathaway  v.  First  Nat.  Bank  of 
134  U.  S.  499.  33  L.  ed.  1004.  10 
Sup.  Ct.  Rep.  60S. 

i2Powers  V.  United  States.  119  Fed. 
562.  56  C.  C.  A.  128. 


i4Packer  v.  Whittier.  91  Fed.  511, 
33  C.  C.  A.  658;  Burnham  v.  North 
C.  &  St.  Rv.  78  Fed.  101,  23  C.  C. 
677. 

isUnited  States  v.  Harris,  77  Fed. 
S21.  23  C.  C.  A.  483. 

islnsurance  Co.  v.  Folsom,  18  Wall. 
249,  21  L.  ed.  833;  Dirst  v.  Norris, 
14  Wall.  490.  20  L.  ed.  723;  Marye, 
v.  Strouse,  5  Fed.  497 ;  Aetna  L.  Ins. 
Co.  V.  Board  of  Comrs.  79  Fed.  575, 
25  C.  C.  A.  94:  State  Nat.  Bank  v. 
Smith,  94  Fed.  608.  36  C.  C.  A.  412; 
S-earcv  Co.  v.  Thompson,  66  Fed.  92. 
13  C.'C.  A.  349:  Kev  W>st  v.  Baer, 
66  Fed.  440,  13  C.  C.'A.  572. 

isBritish  O.  M.  Co.  v.  Baker,  etc. 
Co.  139  U.  S.  222.  35  L.  ed.  147,  11 
Sup.  Ct.  Rep.  523 ;  Wright  v.  Bragg, 
96  Fed.  729.  37  C.  C.  A.  574:  Austin 
v.  Hamilton  Co.  76  Fed.  208,  22  C. 
C.  A.  128:  Marve  v.  Strouse,  5  Yed. 
494. 

2  0See   post,   §   2082. 

iSeaj-cv  Co.  v.  Thompson.  66  Fed. 
92.  13  C.  C.  A.  349.  See  Lang  v. 
Baxter.  69  Fed.  905. 

2Searcv  Co.  v.  Thompson,  66  Fed. 
96.  13  C'  C.  A.  349. 


862 


Procedure]  REFERENCE   OF   QUESTIONS  OF   FACT.  S  915 

sufficiency  to  support  the  judgment  may  be  inquired  into.3  But  the  ijues- 
tion  whether  the  evidence  supports  the  findings  cannot  be  raised  in  either 
case,  whetJier  of  general  or  of  special  findings.4  The  making  of  findings 
in  a  case  where  the  jury  is  waived  is  governed  by  the  above  provision  and 
R.  S.  §  700,5  and  the  court  cannot  be  required  to  rule  on  specific  propositions 
of  law  presented  by  the  parties,  according  to  state  practice. 6 

[d]  —  addition,  amendment  and  correction. 

Prior  to  writ  of  error  and  while  a  case  remains  under  the  control  of  the 
trial  court,  it  may  add  a  material  finding  which  has  been  omitted,  though 
after  judgment  and  motion  for  new  trial, 9  and  even  at  an  ensuing  term.io 
An  inadvertment  entry  of  erroneous  findings  may  also  be  set  aside  and 
the  error  corrected. n  The  rule  has  also  been  applied  to  findings  of  the 
court  of  clairas.i2  But  substitution  of  special  for  general  findings  has  been 
refused  after  lapse  of  a  term.is  So,  additional  findings  have  been  re- 
fused; i^  and  this  is  proper  where  the  additional  fitnding  would  be  of  facts 
merely  incidental  to  those  found,i5  or  where  another  finding  really  covers 
the  ground.  16 

§  915.     Reference  of  questions  of  fact. 

There  can  be  no  doubt  of  the  power  of  the  Federal  courts  at  law 
to  refer  to  an  auditor  or  referee  the  ascertainment  of  questions  of 
fact,  with  the  consent  of  the  parties.  But  State  laws  permitting 
or  authorizing  a  reference  cannot  be  followed  where  the  effect  would 
be  to  den}-  to  a  party  against  his  wishes  the  right  of  Jury  trial  in 
common-law  cases  guaranteed  by  the  seventh  amendment.  ^^ 
Authoi-'s  section. 

The  power  to  refer  with  consent  of  parties  is  well  settled,i9  and  an  inci- 
dent to  all  judicial  administration. 20     The  state  practice  as  to  form  and 

sSee  post.  §  2082.  i4Lang  v.  Baxter,  69  Fed.  905. 

4R.  S.  §  1011.     See  post.  §  2083.  i5Hathaway    v.     Cambridge     Nat. 

s.Tones  v.  United  States,   135  Fed.  Bank,  134  U.  S.  499,  33  L.  ed.  1004, 

518.  68  C.  C.  A.  68.  16  Sup.  Ct.  Rep.  608. 

eStreeter  v.  Sanitarv  District.  133  isSee  Fox    v.    Harstick.  156  T'.  S. 

Fed.  124.  66  C.  C.  A.  190.  674.  39  L.  ed.  576,  15  Sup.  Ct.  Rep.  457. 

ri North    v.    Peters,    13S  U.    S.    282.  isAnte.   §  910. 

283.  34  L.  ed.  936,  11   Sup.  Ct.  Rep.  1  ^See  Alexander  Canal  Co.  v.  Swann, 

346.  5   How.  89,  12  L.  ed.  63;   Y.  &  C.  R. 

loinsurance  Co.  v.  Boon.  95  U.  S.  R.  v.  ^Mvers,  18  How.  246.  15  L.  ed. 

124,  24  L.   ed.   395.     See  also  :MeGa-  380:  Heckers  v.  Fowler.  2  Wall.  127. 

vock  v.  Wood! iff.  20  How.  225.  15  L.  17   L.    ed.   759;    Thornton   v.   Carson. 

ed.    884.  7  Cranch,  596.  3  L.  ed.  451  :  Sliipman 

iiSvracuse    Twp.    v.    Rollins.    104  v.  Stratsville  C.  M.  Co.  158  U.  S.  361, 

Fed.  962.  44  C.  C.  A.  277.  39  L.  ed.  1016,  15  Sup.  Ct.  Rep.  886; 

i2United   States   v.  St.  Louis,  etc.  Dennv  v.  Brown,  2   Betts.   C.   C.  51, 

Co.  184  T'.  S.  247.  46  L.  ed.  520,  22  Fed.  Cas.  Xo.  3.805. 

Sup.  Ct.  Rep.  350.  ^oXewcnmb  v.  Wood,  97  U.  S.  583, 

isMarve  v.  Strouse,  5  Fed.  494.  24  L.  ed.  1085. 

863 


S   rno  PROCEDURE    IN    rOMMON-LAW    TAt'SES.  [Code   Fed. 

mode  of  refoi'oncp  lias  heon  t'ollowcil  whore  a  referonce  was  agri'od  to. 2 
But  in  the  abseneo  of  waiver  of  jury  an  action  on  a  book  account  cannot 
!)e  referred  to  an  auditor  confornuilly  to  State  practice,  because  the  Federal 
law  makes  issues  of  fact  triable  by  jury."  And  in  general  State  practice 
as  to  reference  can  never  bo  followed  in  the  Federal  courts  when  infringing 
the  guaranty  of  jury  trial,'  though  the  parties  may  validly  waive  the 
guaranty. 5  But  the  ordering  of  a  preliminary  investigation  of  complicated 
accounts  is  no  infringement  of  the  guaranty,  where  the  issues  arc  finally 
submitted  to  a  jury. 6  The  facts  found  by  the  referee  when  approved  by 
the  court,  are  conclusive,  just  as  is  the  verdict  of  a  jury,"  Errors  in  the 
admission  or  exclusion  of  evidence  or  in  refusal  to  find  facts  or  in  the  cor- 
rectness of  the  facts  found,  are  not  reviewable;  but  only  the  question 
whether  the  facts  found  sustain  the  judgment, s 

§  916.     Impaneling:  of  jury. 

There  are  Federal  statutory  provisions  respecting  the  impaneling 
of  juries,  and  the  competency  of  jurors,  considered  elsewhere. ^^ 
Author's  section, 

§  917.    Mode  of  proof  in  common-law  actions. 

The  mode  of  proof  in  the  trial  of  actions  at  common  law  shall  be 
by  oi'al  testimony  and  examination  of  witnesses  in  open  court,  ex- 
cept as  hereinafter  provided. 

R.  S,  §  861,  U.  S,  Comp.  Stat,  1!)01,  p.  GGl. 

This  provision  was  originally  part  of  the  judiciary  act  of  1789,14     Open 

2Parker  v.  Ogdensburgh,  etc,  R.  R.  Xo.  4,235,  an  early  ea.se  (1822)  going 

79  Fed,  817,  25  C.  C,  A,  205;   Fourth  further  than  that. 
Nat.   Bank  V,  Neyhardt,   13   Blatchf.         THeckers  v.  Fowler.  2  Wall,  131,  17 

393,    Fed.    Cas.    No.    4,991;    Robinson  L,  ed,  759;  Roberts  v.  Benjamin,  124 

V.  Mutual  Ben.,  etc.  Co.   Ifi  Blatchf.  U,   S,  71,  31    L.   ed.   334,   8   Sup.  Ct. 

194.  Fed,  Cas,  No.  11,961,     But  under  Rep,  393, 

early  conformitv  acts  State  practice        sShipman  v.  Straitsville,  C,  M,  Co. 

was' declared  not  applicable:     Denny  158  U,  S.  361,  39  L.  ed,  1016,  15  Sup. 

v.  Brown,  2  Betts  C.  C.  51,  Fed.  Cas.  Ct.   Rep.   886;    Roberts  v.   Benjamin, 

No.     3,805.      Contra     see     f:aken     v.  124  U,   S.   64,  31   L,   ed.   334,   8   Sup, 

United    States,    1    U,    S.    L,    J.    545,  Ct,     393;  Boogher  v.  New  York  L.  1, 

Fed.  Cas.  No.  4,235,  Co,  103  U,  S.  90,  26  L,  ed.  310:  Bond 

sSulzer  v,  Watson,  .39  Fed,  414,  v.   Dustin,   112   U.   S.   604,  28   L.   ed, 

■iFTowe     M,     Co,     v,     Edwards,     15  835,    5   Sup.   Ct.   Rep.    296;    Paine   v. 

Blatchf.    402,    Fed    Cas.    No,    6,784;  Central  &  F,  Co.  118  U.  S.  152,  .30  L, 

United   States  v.  Rathbone,  2  Paine,  ed,  19.3,  6  Sup.  Ct.  Rep.  1019;  Andes 

578,  Fed,  Cas,  No,   10,121;   Dennv  v.  v,   Slauson,   130  U,  S,  4.35,  32  L,  ed. 

15rown,   2   Betts   C.   C.   51.  Fed.   Cas.  989,  9  Sup.  Ct.  Rep.  573. 
No.  3,805.  iiPost,  §§  1701,  et  seq. 

sUnited     States     v,     Rathbone,     2        i4Act  September  24,  1789,  c.  20,  1 

Paine,  578,  Fed.  Cas.  No.  16,121.  Stat.  88.     See  also  Act  Feb,  20,  1812, 

GFenno  v.  Primrose,   119   Fed.  803,  c.  25,  2   Stat,   082;    act   January  24, 

oi6  C.  C,  A.  313.     See  Eaken  v.  United  1827,  c,  4,  4  Stat.  197,  199. 
States,  1    U.  S,  L,  J.  545,  Fed.   Cas. 

864 


rrocedure]         DIRECTION    OF    VERDICT    AND    DEMURRER.  §   918 

court  means  in  the  presence  of  the  court  and  jury  at  the  trial. lo  The  ex- 
ception of  other  modes  of  proof  refers  to  the  various  provisions  of  Federal 
law  respecting  the  taking  of  depositions,  letters  rogatory,  the  admissibility 
of  transcripts,  copies  of  official  records,  etc.is  This  section  makes  it  im- 
proi)er  for  the  Federal  courts  to  follow  State  laws  respecting  the  occasions 
when  a  deposition  may  be  taken  in  advance  of  triali"  or  State  laws  giving 
a  right  to  examine  a  party  to  the  cause  in  advance  of  trial.is  in  these 
matters  Federal  practice  is  controlled  by  the  Federal  statutes, 1 9  though  the 
mere  mode  of  taking  a  deposition  may  now  conform  to  the  mode  pre- 
vailing in  the  State  practice. 2  d  The  section  also  renders  inapplicable  to 
Federal  practice,  a  State  law  making  admissible  a  deposition  taken  in  a 
prior  discontinued  case; 2  or  the  State  practice  of  attaching  to  the  petition 
interrogatories  to  be  answered  by  the  defendant. 3  It  is  held  in  the  sixth 
circuit  that  this  section  does  not  forbid  the  Federal  court  to  follow  State  law 
permitting  evidence  given  in  a  former  trial  to  be  introduced  where  witness 
is  out  of  the  State.*  But  the  rule  in  the  eighth  circuit  is  probably  to  the 
contrary. 5  A  State  law  requiring  a  plaintiff  in  suit  for  personal  injuries  to 
submit  to  physical  examination  before  trial,  is  not  in  conflict  with  this  pro- 
vision and  is  in  force  in  the  Federal  courts  by  virtue  of  R.  S.  §  721.6 
making  State  laws  the  rule  of  deci.sion,'!'  though  not  permissible  in  Federal 
eourts  in  the  absence  of  such  a  State  law.s 

§  918.     Direction  of  verdict  and  demurrer  to  evidence. 

In  addition  to  motion  for  nonsuit,  motion  to  direct  a  verdict'^^^'f''^ 
and  demurrer  to  evidencef^^^  have  been  used  in  Federal  practice  as 
a  means  of  testing  the  legal  effect  and  sufficiency  of  evidence.  De- 
murrer to  evidence  has  l^een  largely  superseded  in  modern  practice 
by  the  motion  to  direct  a  verdict. 
Author's  section. 

isBeardsley  v.  Littell,  14  Blatchf.  R.  v.   Leland,  94  Fed.  502.   37   C.   C. 

102,  Fed.  Cas.  No.  1,185.  A.  372.     This  Avas  formerlv  not  true: 

leSee  post,  §  1761,  et  seq.  Randall    v.    Venable,    17    Fed.    162. 

I'McLennan  v.  Kansas,  etc.  R.  R.  2Seeley  v.  Kansas  C.  S.  Co.  71  Fed. 

22  Fed.  198.  554. 

isEx  parte  Fisk,  113  U.  S.  713.  28  spierce   v.    Union    P.    Co.    47    Fed. 

L.    ed.    1117,    5    Sup.    Ct.    Rep.    724;  709;  contra  Bryant  v.  Leland,  6  Fed. 

Easton  v.  Hodges.   7  Biss.  324,   Fed.  125. 

Cas.    Xo.    4.25S;    Colgate    v.    Comp.  ^Toledo    T.    Co.    v.    Cameron.    137 

Franc.  23  Blatchf.  SO,  23  Fed.  82.     In  Fed.  48,  69  C.  C.  A.  28. 

Pennsylvania       however.       following  sSalt  Lake  Citv  v.  Smith,  104  Fed. 

Stale 'practice   and   court    rule,   dep-  469.  43  C.  C.  A.  "637. 

osilinns    for  use    on   hearing   of  rule  CAnte.  §  12. 

to  show  cause  may  be  taken,  see  Im-  '^ Camden,  etc.  R.  R.  v.  Stetson.  177 

porters,  etc.  Bank  v.  Lvons,  1.34  Fed.  U.  S.  172.  44  L.  ed.  721,  20  Sup.  Ct. 

510.                                    '  Rep.  617. 

isMcLennan  v.  Kansas,  etc.  R.  R.  sUnion  Pac.  R.  R.  v.  Botsford.  141 

22  Fed.  198.  V.    S.    250,    35    L.    ed.    735.    11    Sup. 

20See    post,    §    1776.     National    C.  Ct.   Rep.    1000. 
Fed.  Proc— 55.                                 865 


I  ins    [a]  ruoCKKlKK  IN  rOMM0N-I-A\V  CAUSES.  [Code  Fed. 

[a]     Direction  of  verdict. 

The  point  that  evidence  only  justifies  one  verdict  may  be  raised  by  de- 
murrer to  evidence,  by  motion  to  exclude  it  from  the  jury  and  by  motion 
to  give  peremptory  instruction;i2  also  by  motion  for  nonsuit. is  The 
right  to  ask  a  peremptory  instruction  or  for  direction  of  a  verdict,  or  for  an 
instruction  that  plaintiff's  evidence  is  insufficient  to  warrant  a  verdict  in 
his  favor,  was  recognized  in  the  Federal  courts  at  a  time  when  the  right 
o.f  involuntary  non-suit  was  denied,!^  and  is  well  settled.is  The  practice 
is  so  well  established  in  the  Federal  courts  that  it  is  doubtful  whether  the 
absence  of  the  remedy  in  the  State  courts  would  be  deemed  good  ground 
under  the  conformity  law,  for  denying  its  existence  in  the  Federal  court 
there  sitting.16  Before  the  court  can  instruct  the  jury  that  one  party  is 
entitled  to  recover,  it  should  be  satisfied  that  there  is  nothing  in  the  evi 
dence  or  any  fact  which  the  jury  could  lawfully  infer  therefrom,  from 
which  the  jury  could  reach  a  contrary  conclusion. i  t  The  evidence  with  all 
inferences  therefrom  must  be  susceptible  of  but  one  conclusion,!  9  and  if 
it  is  the  court  may  direct  verdict  accordingly. 20  If  there  is  any  evidence 
from  which  a  jury  may  conclude  to  the  contrary  verdict  should  not  be 
directed. 2  If  there  is  no  conflict  in  the  evidence  it  is  proper  for  the  court  to 
instruct  as  to  its  legal  effect. 3  If  there  is  conflicting  evidence  and  opposite 
verdicts  might  lawfully  be  reached  thereunder  it  is  improper  to  direct 
verdict,  and  the  jury  must  determine  its  weight. •*  It  is  often  said  that 
verdict  should  be  directed  if  a  contrary  verdict  would  be  set  aside  on  motion 

12 Louisville,  etc.  R.  R.  v.  Woodson,  13  Sup.  Ct.  Rep.  950:  Texas,  etc.  Ry. 
134  U.  S.  ©21,  33  L.  ed.  1032,  10  Sup.  v.  Cox.  145  U.  S.  606,  36  L.  ed.  S29, 
Ct.  Rep.  628.  12  Sup.  Ct.  Rep.  905 ;  Lincoln  v.  Pow- 

isAnte.  §  916  [c].  er,   151   U.   S.  4,39,  38  L.  ed.   224.  14 

i4See  Mercantile  Ins.  Co.  v.  Fol-  Sup.  Ct.  Rep.  387:  Woodward  v.  Chi- 
Fom.  18  Wall.  251.  2.52,  21  L.  ed.  833.    cago,  etc.  Ry.  145  Fed.  577   (C.  C.  A.) 

isBank  of  United  States  v.  Car-  20Arthur  v.  Cumming,  91  U.  S. 
neal.  2  Pet.  551,  17  L.  ed.  513:  Schu-  365,  23  L.  ed.  438;  Louisville,  etc. 
chardt  v.  Allen.  1  Wall.  370,  371,  17  R.  R.  v.  Woodson,  134  U.  S.  621,  33 
L.  ed.  642:  Macon  Co.  v.  Shores.  97  L.  ed.  1032.  10  Sup.  Ct.  Rep.  628: 
U.  S.  278.  24  L.  ed.  889;  Arthur  v.  Bunt  v.  Sierra,  etc.  Min.  Co.  138  V. 
Cumming,' 91  U.  S.  365,  23  L.  ed.  438;  S.  485,  34  L.  ed.  1031,  11  Sup.  Ct. 
Mequire  v.  Corwine,  101  U.  S.  Ill,  Rep.  464;  Parks  v.  Ross,  11  How. 
25  L.  ed.  899;  Bib  v.  Allen.  149  U.  S.  373.  13  L.  ed.  730. 
493,  37  L.  ed.  819,  13  Sup.  Ct.  Rep.  2Riehardson  v.  Boston,  19  How. 
950:  Marande  v.  Texas,  etc.  Ry.  184  268,269,  15L.  ed.  639;  Bank  of  Wash- 
U.  S.  192,  46  L.  ed.  487,  22  Sup.  Ct.  ington,  v.  Triplett.  1  Pet.  31.  7  L. 
Rep.  340.  ed.  37:  Humiston    v.    Wood.  124  U. 

leSee  Sloss  Iron  Co.  v.   South   C,    S.  20,  31  L.  ed.  354,  8  Sup.  Ct.  Rep. 
etc.  R.  R.  85  Fed.   138,  29  C.  C.  A.    347;    Hadden    v.    Iselin.    142    U.    S. 
50.  holding  the  Federal  practice  upon    679,  35  L.  ed.  1155,  12  Sup.  Ct.  Rep. 
nonsuit  and  direction  of  verdict  uni-    330. 
form   regardless   of    State   laws.  sBevans  v.  United  States.  13  Wall. 

iTEwing  V.  Burnet.   11   Pet.   50,  9    63.  20  L.  ed.  531. 
L.  ed.  624.  -iWeightman     v.     Washington.     1 

isMeguire  v.  Corwine,  101  U.  S.  Ill,  Black.  49.  17  L.  ed.  52;  Manchester  v. 
25  L.  ed.  899;  Griggs  v.  Houston.  104  Erickson.  105  U.  S.  349.  26  L.  ed. 
U.  S.  554.  26  L.  ed.  840;  Bibb  v.  1099:  Pennsylvania  R.  R.  v.  Green. 
Allen,   149' U.   S.  493,  37  L.  ed.   819,    140  U.  S.  51,  35  L.  ed.  339,  11   Sup. 

866 


Procedure] 


DIRECTION   OF   VERDICT. 


§  918   [b] 


for  new  trial; 5  even  though  there  would  have  been  a  scintilla  of  evidence 
to  support  such  contrary  verdict. 6  It  is  not  a  deprivation  of  the  consti- 
tutional right  to  jury  trial."  The  direction  of  a  verdict  is  also  proper 
where  the  opening  statement  of  counsel  by  admission  shows  facts  which 
would  legally  preclude  his  recovery.9  Where  each  party  requests  a  per- 
emptory instruction  it  is  equivalent  to  a  request  that  the  court  try  the 
facts.  10  Where  the  court  has  oifered  to  submit  the  only  question  in  the 
case  which  should  properly  have  gone  to  the  jury,  and  plaintiff  insisted  on 
a  general  submission,  it  has  been  held  proper  for  the  court  to  direct  a 
verdict  against  plaintiff,  n  If  plaintiff's  evidence  is  legally  insufficient  to 
support  a  verdict  in  his  favor  the  court  may  instruct  for  defendant. 12  So 
if  it  is  legally  sufficient  and  defendant  offers  no  evidence,  the  court  may 
instruct  for  plaintiff. is  Refusal  to  direct  a  verdict  is  ground  for  excep- 
tion,! 4  and  is  assignable  error  is  and  improper  direction  of  verdict  or  re- 
fusal thereof  is  reversable  error.  16 

[b]     Waiver  of  error  in  granting  or  refusing  motion. 
Where  the  party   moving  for  a  direction  of  verdict  introduces  evidence 


Ct.   Rep.   650:    White   v.   Van   Horn.  346.  12  Sup.  Ct.  Rep.  581:  Oscanvan 

159  U.  S.  12,  40  L.  ed.  55,  15  Sup.  Ct.  v.  Arms  Co.  103  U.  S.  263,  26  L.'ed. 
Rep.  1027:  Bamberger  v.  Schoolfield,  539. 

160  U.  S.  157.  40  L.  ed.  374.  16  Sup.  loReutell  v.  Magone,  157  U.  S. 
Ct.  Rep.  225:  United  States  v.  Til-  157,  39  L.  ed.  654,  15  Sup.  Ct.  Rep. 
lotson.  12  Wheat.  183,  6  L.  ed.  594.  566. 

5Herbert  v.   Butler,   97   U.    S.   320.  uToplitz  v.  Hedden,  146  U.  S.  257, 

24  L.  ed.  958:  Randall  v.  Baltimore.  258.  36  L.  ed.  961,  13  Sup.  Ct.  Rep. 

etc.   R.   R.    109  r.   S.   482.   27    L.   ed.  70. 

1003.  3  Sup.  Ct.  Rep.  322;  Arthur  v.  i2Schuchardt    v.    Allen.     1     Wall. 

Jacoby,  103  V.  S.  678.  26  L.  ed.  454:  370.   371,  17   L.   ed.   642;    Stewart  v. 

Phoenix,  etc.  Ins.  Co.  v.   Doster.  106  Lansing,    104    U.    S.    512.    26   L.    ed. 

U.  S.  .32,  27  L.  ed.  65,  1  Sup.  Ct.  Rep.  Sfl6:  Plea.sants  v.  Fant,  22  Wall.  122. 

18;    Haines    v.    :McLaughliu.    135    U.  22    L.  ed.   780;    Roundtree   v.    Smith. 

S.   598.   34   L.    ed.   290.    10    Sup.    Ct.  108  U.  S.  277,  27  L.  od.  722,  2  Sup. 

Rep.    876:    Delaware,    etc.    R.    R.    v.  Ct.    Rep.    6.30;     Mei-chants    Bank    v. 

Converse.    139   U.    S.   472.    35    L.    ed.  State   Bank,  10  Wall.   637.   19  L.  ed. 

213.    11    Sup.    Cu    Rep.    .560;    Treat  1008:  Bavlis  v.  Travelers  Ins.  Co.  113 

Mfg.   Co.  V.   Standard   S.  Co.   1.57  U.  i:.  S.  320.  28   L.  ed.  989.  5  Sup.  Ct. 

S.  675.  .39  ,L.  ed.  8.53.  15  Sup.  Ct.  Rep.  Rep.  494. 

718;    Patton   v.    Texas,    etc.    Rv.    17&  isllendrick    v.    Lindsav.    93    U.    S. 

I'.  S.  659.  660.  45  L.  ed.  .363.  21  Sup.  147.  23  L.  ed.  8.55. 

Ct.  Rep.  275.  i^Insurance  Co.  v.  Folsom.  IS  Wnll. 

BHinchman   v.   Lincoln,    124  U.    S.  2.50.  251.  21   L.   ed.   827. 

49.    31    L.    ed.   337.   8    Sup.    Ct.   Rep.  i^Hickman  v.  Jones,  9  Wall.   201. 

369;    Berbecker  v.   Robertson.   1.52  U.  19  L.   ed.   515. 

S.    377.    38    L.    ed.   484,   14    Sup.    Ct.  leRussell    v.    Post.    138    V.   S.   426. 

Rep.  590.  .34  L.  ed.  1009,  11  Sup.  Ct.  Rep.  3.53: 

-Treat  Mfg.  Co.  v.  Standard  S.  Co.  Torrent  Co.  v.  Rodgers,  112  U.  S.  669, 

1.57  U.  S.  675.  39  L.  ed.  853.  15  Sup.  28  L.   ed.   842.  5  Sup.   Ct.   Rep.   .501  ; 

Ct.  Rep.  718.  United    States    v.    Chi(l(>ster.    140    U. 

sLiverpool.    etc.    Co.   v.   Com'rs   of  S  49.  35  L.  ed.  339,  11  Sup.  Ct.  Rep. 

Emig.    113   U.    S.    37.   28  L.    ed.    899.  6.50. 
5  Sup.  Ct.  Rep.   352:    Butler  v.   Na- 
tional Home,  144  U.  S.  72,  36  L.  ed. 

PR? 


§   OlS   [c]  FROCEDURE  IX  COMMON-LAW  CAUSES.  [Code  Fed. 

aftor  tlie  denial  of  his  motion,  this  is  a  waiver  of  the  error  if  any.i     The 
party  should  renew  his  motion  at  the  close  of  the  testiniony.2 

[cj     Demurrer  to  evidence. 

Demurrer  to  evidence  is  a  proceeding  by  which  the  court  in  which  an 
action  is  pending  is  called  upon  to  decide  what  the  law  is  upon  the  facts 
shown  in  the  evidence.''  It  is  a  cumbrous  ])roceeding  requiring  an  elab- 
orate admission  of  the  facts  upon  the  record, 5  and  a  joining  in  demurrer,6 
besides  being  discretionary  with  the  court.'*  As  long  ago  as  1813  it  was 
spoken  of  as  rare,8  and  in  modern  practice  the  motion  to  direct  a  verdict 
has  taken  its  place.9  While  it  is  available  in  Federal  practice  in  those 
States  where  permitted  by  the  local  law,io  it  may  be  questioned  whether 
its  use  would  now  be  sanctioned  in  the  absence  of  such  local  practice. 

§  919.     Continuance,  dismissal  and  nonsuit. 

The  granting  of  continuances  in  common-law  causes  is  part  of 
the  State  practice  to  Avhich  the  Federal  courts  should  conform  "as 
near  as  may  be"  under  E.  S.  §  914.^3  The  only  general  Federal  pro- 
vision on  the  subject,  to  which  the  requirement  of  conformity  is 
.necessarily  subordinate,  is  one  granting  continuance  after  death 
of  a  party. "^^^^^  The  conformity  requirement  also  applies  to  the 
matter  of  dismissal  or  nonsuit,  subject,  however,  to  a  special  Fed- 
eral provision  respecting  dismissal  of  a  Federal  case  "at  any  time" 
for  want  of  jurisdiction'^'^^"'^^^^'' 
Author's  section. 

[a]     Continuances. 

Since  the  conformity  provided  by  R.  S.  §  914  is  only  "as  near  as  may 
be,"i7  and  not  I'equired  when  calculated  to  impair  or  impede  the  adminis- 
tration of  justice,!  8  the  cases  show  no  great  attention  to  the  provisions  of 

iGrand    Trunk    Ry.    v.    Cumniing.  eColumbia   Ins.    Co.   v.   Catlett,   12 

lOG  U.  S.  701,  22  L.'  ed.  266.  1   Sup.  Wheat.  389,  6  L.  ed.  664. 

Ct.   Rep.   493;    Hansen   v.    Bovd.    161  7 Young   v.    Black.    7    Cranch.    56S. 

r.  S.  403,  40  L.  ed.  746,  16  Sup.  Ct.  3  L.  ed.  440. 

Rep.  571;    Robertson  v.  Perkins,   129  s Young  v.  Black,  7  Cranch,  568.  3 

U.  S.  236.  32  L.  ed.  686.  9  Sup.   Ct.  L.    ed.  440.     See   a   modern   instanne. 

Rep.  279;   Wilson  v.  Halev  L.  S.  Co.  Vnn  Stone  v.  Stilhvell,  142  U.  S.  134. 

153  U.   S.  43,  38  L.  ed.  627,   14   Sup.  35  L.  ed.  961.  12  Sup.  Ct.  Rep.  181. 

Ct.   Rep.   768.  o Supra,  note  [a]. 

2Union  Pac.  Ry.  v.  Callaghan.  161  loCentral  Trust  Co.  v.  Pullman  Co. 

U.  S.  95.  40  L.  ed.  628.  16  Sup.  Ct.  139  U.   S.   24.  35  L.  ed.  55,  11   Sup. 

Rep.    493.  Ct.  Rep.  478. 

4Van   Stone  v.  Stillwell,  etc.  Mfff.  isAnte,  §  900. 

Co.    142    U.    S.    134.    35    L.    ed.    961,  1 4 Ante,    §    817. 

12  Sup.  Ct.  Rep.  181.  isAnte.    ?    SIS. 

sFowle   V.   Alexandria,   11    ^Mieat.  ivAnte.  8  900  [d]. 

320.  6  L.  ed.  484.  islndianapolis.  etc.  R.  R.  v.  Horst. 

93  r.  S.  291,  23  L.  ed.  898. 

8G8 


Procedure] 


CONTINUANCE,     DISMISSAL     AND     NONSUIT. 


§   919    Lf] 


the  State  laws  in  the  granting  or  refusal  of  continuances.is  Moreover  the 
matter  of  continuances  is  largely  discretionary 20  and  not  assignable  errors 
unless  upon  the  showing  of  abuse  of  discretion.3  Loss  of  record  of  a  form- 
er suit  on  which  defendant  relies ;•*  and  death  of  senior  counsel  in  an  im- 
portant ease 5   have  been  held  good  grounds  for  continuance. 

[b]  Voluntary  dismissal  and  discontinuance,  or  nonsuit. 

The  State  law  governs  as  to  the  right  of  voluntary  dismissal  or  discon- 
tinuance without  prejudice,  in  the  Federal  courts,  and  as  to  the  time  when 
such  dismissal  may  be  taken. 8  The  question  whether  such  voluntary  dis- 
missal or  nonsuit,  was  a  bar  to  further  proceedings  is  governed  by  the 
State  law. 9 

[c]  Involuntary  nonsuit  or  dismissal. 

Early  cases  took  the  view  that  the  Federal  courts  were  without  power 
to  award  nonsuit  against  the  objection  of  plaintiff.12  This  was  upon  the 
theory  that  the  party  could  not  thus  be  deprived  of  his  right  to  a  jury 
trial.13  But  the  contrary  is  now  settled,  and  if  the  State  law  permits 
nonsuit  where  the  facts  with  all  inferences,  would  not  sustain  a  verdict  for 
plaintiff,  the  Federal  court  may  do  likewise,  i*  The  similar  remedies  of 
motion  to  direct  a  verdict  and  of  demurrer  to  evidence,  are  also  available 


19  See  Texas,  etc.  R.  R.  v.  Nelson, 
50  Fed.  814,  1  C.  C.  A.  688,  refusing 
continuance  though  a  case  was  with- 
in the  provisions  of  the  State  law. 

2  0Hunter  v.   Fairfax.   3   Dall.   305. 

1  L.  ed.  613;  Barrow  v.  Hill,  13 
How.  56.  14  L.  ed.  48:  Dexter  v.  Kel- 
las.   113   Fed.  48. 

2Woods  V.   Young.   4  Cranch,   238, 

2  L.  ed.  607  ;  Sims  \.  Hundlev,  6  How. 
6,  12  L.  ed.  319;  United  States  v. 
Rio  Grande  Dam  Co.  184  U.  S.  422, 
46  L.  ed.  621,  22  Sup.  Ct.  Rep.  428; 
Missouri,  etc.  Rv.  v.  Elliott,  102  Fed. 
96.  42  C.  C.  A.  188. 

sGoldsbv  v.  United  States.  160  U. 
S.  72.  40  L.  ed.  343.  16  Sup.  Ct.  Rep. 
216:  Hardy  v.  United  States,  186 
U.  S.  224,  46  L.  ed.  1138,  22  Sup.  Ct. 
Rep.  889;  Isaacs  v.  United  States, 
159  U.  S.  489,  40  L.  ed.  229,  16  Sup. 
Ct.  Rep.  51:  Fidelity,  etc.  Co.  v. 
Bucki  Co.  189  U.  S.  "135,  47  L.  ed. 
745,  23  Sup.  Ct.  Rep.  582;  Lyman  v. 
Warner,  113  Fed.  87,  51  C.  C.  A. 
73. 

■iCrim  V.  Handlev.  94  U.  S.  660. 
24  L.  ed.  21G. 

sHunter  v.  Fairfax,  3  Dall.  305, 
1  L.  ed.  613:  Rhode  Island  v.  .Massa- 
chusetts, 11  Pet.  228,  9  L.  ed.  697. 

sGassman  v.   Jarvis,  94   Fed.   603. 


See  Wolcott  v.  Studebaker,  34  Fed. 
13:  Xussbaum  v.  Northern  I.  Co.  40 
Fed.  337.  As  to  nol.  pros,  against  one 
of  several  defendants  see:  Barton  v. 
Petit.  7  Cranch.  202,  3  L.  ed.  313: 
United  States  v.  Leffler.  11  Pet.  98, 
ft  L.  ed.  642:  Amis  v.  Smith,  16  Pet. 
311,  10  L.  ed.  973:  United  States  v. 
Linn.  1  How.  107.  11  L.  ed.  64. 

sUnited  States  v.  Parker,  120  U. 
S.  95,  30  L.  ed.  604,  5  Sup.  Ct.  Rep. 
454.  In  general  it  is  not  a  bar.  See 
Amis  V.  Smith.  16  Pet.  310,  10  L.  ed. 
973;  Minor  v.  Mechanics  Bank,  1  Pet. 
74,  7  L.  ed.  47 :  Haldeman  v.  United 
States.  91  U.  S.  586,  23  L.  ed.  433: 
United  States  v.  Parker,  120  U.  S. 
95,  30  L.  ed.  607,  7  Sup.  Ct.  Rep.  454. 

i2El.more  v.  Grymes,  1  Pet.  469, 
7  L.  ed.  226;  De  Wolf  v.  Raband.  I 
Pet.  476.  7  L.  ed  227 :  Crane  v.  Morris, 

6  Pet.  609.  8  L.  ed.  514;  Silsbv  v. 
Foote,  14  How.  222,  14  L.  ed.  394; 
Castle  V.  Bullard.  23  How.  183,  16  L. 
ed.  424:  Seliuchardt  v.  Aliens,  1  Wall. 
369.  17  L.  ed.  642:  Ins.  Co.  v.  Folsom, 
18  Wall.  250,  21  L.  ed.  827. 

isElmore   v.   Grymes,    1    Pet.    469, 

7  L.  ed.  226. 

i4Central  T.  Co.  v.  Pullmans  P. 
C.  Co.  139  U.  S.  39,  40,  35  L.  ed.  55, 
1 1  Sup.  Ct.  Rep.  478 :  Meehan  v.  Val- 


869 


§   920  PROOEDUUK  IN  COMMON-LAW  CAUSES.  [Code  Fed. 

in  the  Federal  courts. 1 5  The  right  of  plaintiff  to  take  a  voluntary  nonsuit 
has  always  been  conceded.ie  The  procedure  on  motion  for  nonsuit  or  dis- 
irissal  is  usually  prescribed  by  rule  of  court  in  the  different  circuits  and 
districts. 

§  920.     Instructions  and  verdict. 

Tlie  Federal  courts  are  not  bound  by  State  laws  respecting  the 
mode  of  giving  instructions;,  but  follow  their  own  practice  in  that 
respect  ;t^^"™  nor  do  they  hold  themselves  to  any  strict  conformity 
in  the  matter  of  verdicts. "^"^^  The  matter  of  amendment  of  verdicts 
is  governed  by  the  Federal  statute  as  to  amendments.^^ 
Author's  section. 

[aj     Instructions. 

As  already  stated  the  conformity  requirements  of  E..  S.  §  914  are  not 
applied  to  the  personal  conduct  and  administration  of  the  judge;  and  hence 
not  to  the  mode  of  giving  instructions.3  State  laws  requiring  instructions 
to  be  in  writing,*  and  to  be  taken  to  the  jury  room,5  and  forbidding  com- 
ment by  the  judge  upon  the  facts, 6  are  not  binding  in  the  Federal  courts. 
Where  instructions  are  excepted  to  as  a  whole,  the  exceptions  will  not  be 
sustained  if  a  portion  of  the  instructions  are  correct.7 

[bj     Instructions  where  jury  waived. 

In  some  cases  where  jury  was  waived,  the  practice  of  requesting  the  court 
to  give  instructions  to  itself  and  of  excepting  to  instructions  given  or 
refused,  has  been  followed. 8     But  the  preponderance  of  authority  is  against 

entine.   14.5  U.  S.  618,  .36  L.  ed.  839,  Ct.   Rep.   1;    St.  Louis,  etc.   R.   R.  v. 

12   Sup.    Ct.   Rep.   973:    Coughran   v.  Vickers.  122  U.  S.  363,  30  L.  ed.  1161, 

Bigplow.    164    U.    S.    308.    41    L.    ed.  7    Sup.    Ct.    Rep.    1210:    Lincoln    v. 

446.   17    Sup.   Ct.   Rep.   119;    Peoples'  Power.  1.51   U.   S.  442.  38  L.  ed.  227, 

Bank  v.  Aetna  Ins.  Co.  74  Fed.  511,  14    Sup.    Ct.    Rep.    387:    Hankin   v. 

512.  20  C.  C.  A.  630;   Sloss  Iron  Co.  Squires,   5  Biss.    186,   Fed.   Cas.   No. 

V.   South,  etc.  R.  R.  85  Fed.   133,  29  6,025;   Hathaway   v.  East  Tennessee 

C.  C.  A.  50.  R.  R.  29  Fed.  489;  Somers  v.  Carbon 

inSee  ante,  §  917.  H.   Co.   91    Fed.   337;    United   States 

isChicago.  etc.  R.  R.  v.  Metalstaff,  v.  Train,  12  Fed.  853. 
101    Fed.  769.  41   C.  C.  A.  669.  TLindblom  v.  Fallett,  145  Fed.  805, 

2  0 Ante.    §    817.  (C.  C.  A.   ). 

3Ante.    §    900    [e]  :    Liverpool,    etc.        sSee    Norris    v.    Jackson,    9    Wall. 

Co.    V.    Fredeman,    133    Fed.    716,    66  128.   19  L.  ed.  608;   Insurance  Co.  v. 

C.  C.  A.   543.  Sea,  21  Wall.  160.  22  L.  ed.  512;  Nat. 

4Lincoln   v.   Power,    151    U.  S.  442,  Bank    v.    First    JSiat.    Bank.   61    Fed. 

38  L.  ed.  227.  14  Sup.  Ct.  Rep.  .387.  810,   10  C.  C.  A.  87;    Mercantile  Co. 

5Xudd   v.    Burrows.   91    U.    S.    441.  v.  Wood,  60  Fed.  348,  8  C.  C.  A.  658; 

23   L.  ed.  290:   Western  U.  T.   Co.  v.  llumplirevs   v.   Third   Nat.   Bank,  75 

Biirgoss.    108    Fed.    32,    47    C.    C.    A.  Fed.  852,' 21   C.  C.  A.  538:   St.  Louis 

168:    Moxioiin   C.   Rv.   v.   Glover,   107  v.  Western  l^nion  Tel.  Co.  148  U.  S. 

Fed.  :^.i7.  46  C.  C.  A.  334.  96,   37   L.  ed.   382,   13   Sup.  Ct.  Rep. 

fiVicksburg.  etc.  R.  R.  v.  Putnam,  485. 
lis   r.  S.  .5.53,  30  L.  ed.  258,  7   Sup. 

870 


Procodure]  JUDGMENT   AND   COSTS.  §   ^21 

such  practice; 9   and  a  State  law  requiring  the  judge  to  charge  himself  is 
not  binding.  10 

[c]     Verdicts. 

A  State  law  reqviiring  the  jury  under  certain  circumstances  to  make  a 
special  verdict  or  special  findings  is  not  binding  in  the  Federal  court. 12  But 
as  respects  the  form  and  effect  of  verdictsis  and  the  sufficiency  of  one  good 
count  to  sustain  a  verdict, I'l  the  Federal  courts  will  in  general  is  be  bound 
by  the  State  practice.  So  a  State  statute  as  to  remittitur  of  part  of  verdict 
has  been  followed. is 

§  921.     Judgment  and  costs. 

There  are  specific  Federal  statutory  provisions  respecting  the 
indexing  of  judgments,  their  lien  and  interest  thereon.^'^  State 
provisions  respecting  the  signing  and  entry  of  judgments  and  their 
form  will  generally  be  followed  by  virtue  of  the  requirement  of  con- 
formity to  State  practice  in  R.  S.  §  914;f^3i  and  State  proceedings 
for  the  vacating  of  a  judgment  rendered  are  also  available  and 
justify  the  granting  of  similar  relief  in  the  Federal  courts.'^*']  The 
matter  of  costs  is  governed  almost  exclusively  by  Federal  statutes. '^•'^ 
Author's  section. 

^'Spc    Insurance    Co.   v.   Folsom,    18  69  Fed.  302.  16  C.  C.  A.  232:  Dwver 

Wall.   253,   21   L.   ed.   834:    Cooper  v.  v.   St.  Louis,  etc.  R.  R.  52  Fed.  87; 

Oniohundro,    19   Wall.   68,   69,   22   L.  Times  P.  Co.  v.  Carlisle.  94  Fed.  771. 

ed.  48:   St.  Louis  v.   Western   Union  36  C.  C.  A.  475. 

Tel.  Co.  166  U.  S.  390,  391.  41   L.  ed.  isClenn  v.  Sumner,  132  V.  S.  156, 

1044.  17  Sup.  Ct.  Rep.  608;   Stanley  33  L.  ed.   301,   10  Sup.   Ct.  Rep.  41: 

v.   Supervisors,   121    U.  S.  547,  30  L.  Fitzpa trick    v.    Flanagan.    106   U.    S. 

ed.    1003,   7   Sup.   Ct.   Rep.    1234;    St.  660,   27   L.  ed.   215,    1    Sup.   Ct.   Rep. 

Louis  v.  Rutz.  138  U.  S.  226,  34  L.  ed.  369;  Mexican  X.  R.  R.  v.  Slater.  115 

941.  11  Sup.  Ct.  Rep.  337;  Runkle  v.  Fed.  593,  53  C.  C.  A.  239. 

Burnham.  153  U.  S.  224,  225,  38  L.  ed.  i4Bond  v.   Dustin,    112   U.   S.   608, 

698.  14  Sup.  Ct.  Rep.  837;  Jennisons  609.  28  L,   ed.   835.   5    Sup.   Ct.   Rep. 

V.    Leonard.   21    Wall.   302,   22   L.   ed.  296;    Santa   Anna   v.    Frank,    113    U. 

539:  Dickinson  v.  Planter's  Bank.  16  S.  340,  28  L.  ed.  979,  5  Sup.  Ct.  Rep. 

Wall.  250,  21   L.  ed.  278;  Consolidat-  537:   Hopkins   v.  Crr.   124   U.   S.  514, 

ed  Coal  Co.  v.  Polar  W.  Co.  106  Fed.  31    L.  ed.   525,   8   Sup,   Ct.   Rep.   591. 

799,  45  C.  C.  A.  638:    Cnited  States  i^See  Abbott  v.  Curtis,  25  Fed.  402, 

v.  Indian  G.  Dist.  85  Fed.  9.30.  29  C.  refusing  to  be  bound   as   to   form  of 

C.   A.  578;   Searcy  Co.  v.  Thompson,  verdict     in    suit    involving    counter- 

66  Fed.  92.  13  C.  C.  A.  349;  Distilling  claims.     Under  early  conformity  laws 

Co.   V.   fJottschalk,   66  Fed.  (i09,   610,  Ihe  State  practice  respecting  form  of 

13  C.  C.  618;   Kev  West  v.  Baer,  66  verdicts    was    not    controlling:     Long 

Fed.    443.    444,    13  C.   C.    A.    572.  v.   Palmer.   16  Pet.  70,   10  I.,  ed.  888: 

1  "United  States  v.  Indian  G.  Dist.  Parks  v.  'i'urner.   12  How.  43,  44,  13 

85  Fed.  9:W.  29  C.  C.  A.  578.  1-  ed.  883. 

12  Indianapolis,  etc.   Rv.   v.   Horst,  is  Alabama,  etc.  Co.  v.  Nicliols,  109 

93  U.  S.  300.  23  L.  ed.  901 ;   United  U.  S.  234,  27  L.  ed.  915,  3  Sup.  Ct. 

States  Mut.  A.sso.  v.  Barry,  131  U.  S.  Rep.  120. 

119,    33   L.   ed.   66,   9   SuJd.   Ct.   Rep.  2oPost,  §§  1860-1864,  1859. 

755;  McElwee  v.  Metropolitan  L.  Co.  lAnte,  §  900. 

871 


§  0-21   laj  I'KOCEDURE    I^"    COMMON-LAW    CAUSES.  [Code  Fed- 

[a.l     Judgments. 

The  Louisiana  rule  tliat  an  unsigned  judgment  is  not  linal  and  cannot  be 
enforced  applies  to  Federal  judgments  in  that  State. 3  So  the  Arkansas  rule 
permitting  judgment  ex  contractu  against  one  of  several  defendants  has 
been  declared  the  rule  of  practice  in  the  Federal  courts  there  sitting.* 
Where  the  question  whether  judgment  is  a  bar  involves  a  matter  of  the 
effect  of  pleadings  or  some  matter  of  practice  such  as  the  dismissal  of  a 
cause,  the  State  law  will  be  followed. 5  The  State  practice  respecting  the 
entry  and  recording  of  judgments  has  been  followed  where  requiring  entry 
of  judgments  by  the  clerk  in  a  record  book, 6  as  to  entry  of  judgment  without 
formal  application  to  the  court; 6%  and  where  permitting  only  judgment  for 
cdsts  on  dismissal  of   a   replevin    suit.'? 

[b]     Vacating  and  setting  aside. 

]Most  of  the  States  provide  summary  proceedings  for  the  vacat- 
ing or  setting  aside  of  judgments  when  there  has  been  a  want 
of  proper  service  of  process  or  other  similar  defect.  So  far  as 
these  laws  apply  to  common-law  causess  and  to  such  a  proceeding  taken 
at  the  term  when  judgment  was  entered  or  the  cause  pending,  they  are 
followed  by  the  Federal  courts. lo  But  a  difl'erent  question  is  presented 
where  an  application  to  vacate  or  set  aside  a  judgment  at  law,  is  made 
after  the  term, — in  reliance  upon  a  State  statute  so  providing.  It  is  a 
general  rule  of  the  Federal  courts  that  the  trial  court  loses  all  control  over 
«  judgment  at  the  end  of  a  term;ii  and  the  Supreme  Court  has  declared 
t'liat  this  is  a  jurisdictional  defect  of  power  in  the  Federal  courts  which  can- 
not be  supplied  by  the  operation  of  the  conformity  clause  adopting  State 
[iractice  for  common  law  causes.  12  Hence  State  laws  cannot  justify  the 
Federal  courts  at  law  in  vacating  a  judgment  after  the  term,  for  errors  in 
the  computations  of  a  referee; is  or  errors  of  law  upon  which  the  judg- 
ment was  based.i'i     Nor  can  they  justify  the  Federal  courts  in  permitting 

:'»Yznaga  del  Valle  v.  Harrison.  93  tion  in  Federal  equity  cases:  Austin 

r.  S.  233,  23  L.  ed.  892.  v.  Rilev,  55  Fed.  835. 

^Sawin  v.  Kenny,  93  U.  S.  290,  23        nBronson  v.   Schulten,   104   U.   S. 

L.  ed.  926.  "  417,  26  L.  ed.  797.     So  new  trial  may 

5See    Witters    v.    Sowles,    34    Fed.  not    be    applied    for    at    an    ensuing 

119,  United  States  v.  Parker.  120  U.  term.     See  post,  §  923  [e].     See  also 

S.  96,  30  L.  ed.  (iOf).  7  Sup.  Ct.  Rep.  Hickman  v.  Fort  Scott,  141  U.  S.415, 

4.54.  35  L.   ed.   775,   12   Sup.   Ct.   Rep.   9; 

sMorrison    v.    Bernards.    Twp.    35  McMicken  v.  Perin,  18  How.  507,  511, 

Fed.  400.  15  L.  ed.  506:  United  States  v.  Wal- 

6i/;Fourth  National  Bank  v.  Xev-  lace,  46  Fed.  570;  Campbell  v.  James, 

hardt,  13  Blatchf.  393,  Fed.  Cas.  No.  31  Fed.  526:   ^^lorgans,  etc.  S.  S.  Co. 

4,991.  V.  Texas,  eic.  Rv.  32  Fed.  530;  King 

TLapp  v.  Ritter.  88  Fed.  108.  v.  Davis,  137  Fed.  227. 

9See   as   to   opening   default    judg-        isBronson   v.   Schulten,   104   U.   S. 

ments:    Detmold  v.  Gate  V.  C.  Co.  3  417.  26  L.  ed.  797. 
W.  N.   C.   .567.   Fed.   Cas.  No.  3,830;        isBronson  v.   Schulten,    104   U.   S. 

Brown   v.   Philadelphia,  etc.  R.  R.  9  417.  26  B.  ed.  707. 
Fed.  183:  Republican  Ins.  Co.  v.  Wil-        i4Pl)illips  v.  Negley,  117  U.  S.  665, 

Hams,  3  Biss.  370,  Fed.  Cas.  No.  11.-  29  L.  ed.  1014,  6  Sup.  Ot.  Rep.  901; 

707.  Klever   v.    Seawall,   65   Fed.   378.   12 

loThe  State  practice  has  no  opera-  C.  C.  A.  653. 

872 


Procedure]     TAKING    OF    OBJECTIONS    AND    EXCEPTIONS.  §   921: 

material  ainendments  after  the  term.is  It  would  seem  that  State  laws  as 
to  the  vacating  a  default  after  the  terra,  would  be  equally  inapplicable; 
but  a  recent  case  in  the  circuit  court  of  appeals  refused  equitable  relief 
against  a  default  judgment  upon  the  very  ground  that  a  State  statute 
permitting  application  for  new  trial  after  the  term  was  available  and 
afforded  an  adequate  remedy  at  law.is 

The  cases  seem  to  concede  that  Federal  courts  of  law  have  power  over  a 
judgment  at  a  subsequent  term,  in  the  limited  class  of  cases  where  writ  of 
error  coram  nobis  was  available  at  common  law  to  correct  certain  errors  of 
fact,  e.  g.  that  one  of  the  parties  to  the  judgment  had  died  before  it  was 
rendered,  or  was  an  infant  unrei)resented  by  guardian,  or  was  feme 
covert;  or  error  in  the  process  through  the  fault  of  the  clerk. it  The  ques- 
tion of  the  availability  of  State  remedies  for  vacating  a  judgment  at  law 
after  the  term — must  not  be  confused  with  the  question  of  the  power  of 
Fedoial  courts  of  equity  over  their  decrees  at  a  subsequent  term ; i s  nor  yet 
with  the  question  of  the  right  to  apply  to  a  Federal  court  of  equity  for 
relief  against  a  Federal  or  State  judgment  at  law.is 

[c]     Costs. 

Early  statutes  left  the  costs  to  be  regulated  by  State  laws. 2  But  R.  S. 
§§  823  and  9S33  are  general  Federal  statutes  tipon  the  subject  which  must 
be  followed  to  the  exclusion  of  the  State  practice.*  There  is  now  a  Fed- 
eral law  respecting  costs  in  suits  in  forma  pauperis.5  Certainly  the  con- 
formity requirements  of  R.  S.  §  914  were  not  intended  as  a  consent  to  the 
imposition  of  costs  against  the  government. 6  However,  the  State  law  as  to 
costs  in  special  statutory  proceedings  has  been  followed.7  So  a  State  law 
requiring  security  for  costs  fx-om  a  nonresident  plaintiff,  has  been  en- 
forced, s 

§  922.     The  taking  of  objections  and  exceptions. 

The  State  practice  respecting  appeal  and  the  preservation  and 

i5Phillips    V.    Negley,    117    U.    S.  Roach,  2  Woodb.  &  M.  63,  Fed.  Cas. 

6G5,  29  L.  ed.   1014,  f>'Sup.  Ct.  Rep.  No.  6,21.3. 

901  :   Hickman  v.  Fort  Scott.  141   U.  3 Ante.  §  70.5,  post  §  1839. 

S.  415,  12  Sup.  Ct.  Rep.  9,  .35  L.  ed.  ^United     States    v.   Treadwell,    1.5 

776.  Fed.  532;  O'Neil  v.  Kansas  City,  31 

i6Travelers   Pro.   Asso.  v.   Oill)ert.  Fed.  664;   Chadboume  v.  Gorman-A. 

Ill    Fed.    276.    49    C.   C.    A.    309.    55  fns-     Co.     31     Fed.    625;    Richter   v. 

L.R.A.  538.  Magone.    47    Fed.   192. 

,..0      T,  o  1    li        in<  T-         sSee  post,  §  1823.     As  to  effect  of 

i^See  Bronson  v.  Rchulten.  104  u.  oj    .      i  •  ti,      i. 

c      41-     on    T      ^A     -a-      r)v  ;ii;^    ,.  State    laws     previous     thereto     see: 

b.    4u,    2d    Jj.    ed.     r.)i  :     Jr'hilhp    v.  -r,      .^      ,  -n      tc      t     n    ^^^■  ^  ,/^ 

'  Bradford  v.   Bradford,   2   Fhpp,   280, 


Heckman 


Negley,  HJ  XL  S.  6U5    29  L.  ed.  1015,  ^^r  C^.    Na    U66 

6    Sup.    Ct.    Rep     901:    Hickman    V.  ,    3^  ^^^    ^-^ 

Fort  Scott,  141    US.  41. >.  3d  L.  ed.        gearlisle   v.   Cooper,   64   Fed.   475, 

775,   12  Sup.   Ct.   Rep.   9.    and  cases  lo  c    C    \    ^^35 

cited      United  States  v.  Wallace,  46        Tm„u;e;s"v."  Epson,   15  Fed.  732; 

*^^-^'"-  Morrison    v.     Bernards    Tp.   35   Fed. 

isSee   post,   §§   1094,   1099.  40O :   New  H.  L.  Co.  v.  Tilton,  29  Fed. 

19 See  ante,  §  19.  764. 

2Ethridge  v.  Jackson.  2  Sawy.  598,        ^Henning  v.  Western  U.  T.  Co.  40 

Fed.    Cas.    No.   4,541;    Hathawav    v.  Fed.  658. 

873 


S  9i'2   la] 


TROCEDURE    IX     COMMOX-LAW     CAUSES. 


[Code    I'tU. 


resiTvation  in  the  trial  court  of  the  right  of  review  is  not  adopted 
for  the  Federal  courts  by  the  conformity  Tequirements  of  E.  S.  § 
!»14.'-  The  parties  must  make  their  objections  and  take  their  ex- 
ee])tions  according  to  rules  of  Federal  practice,  which  are  uniform 
throughout  the  United  States.  The  objections  and  exceptions  must 
be  timely f^^  and  they  must  be  specific. '^^^'■^'^^  The  form  and  contents 
of  the  bill  of  exceptions  are  elsewhere  considered. ^^ 
Author's  section. 

[aj     Necessity  of  timely  objections  and  exceptions. 

In  the  matter  of  objections  to  evidence,  the  general  rule  is  that  a  party 
should  object  to  the  question,  and  that  he  will  not  be  permitted  to  take 
clianees  of  a  favorable  answer  and  if  unfavorable  then  move  to  strike  it 
out. 14  Objections  to  the  sufticiency  of  copies  of  documents  annexed  to 
depositions  should  be  raised  by  motion  to  suppress  them  before  trial.is 
If  no  objection  is  taken  to  evidence  when  offered  objection  afterwards  made 
will  not  be  entertained. 1 6  And  if  evidence  is  admitted  upon  promise  of 
sliowing  its  I'elevancy,  an  objection  must  be  renewed  after  the  party  offer- 
ing it  has  failed  therein. i"  As  respects  objections  to  other  rulings  the  rule 
is  strict  that  they  must  be  taken  during  the  trial  and  before  verdict  or 
they  will  not  be  considered  on  appeal. is  An  objection  first  taken  in  the 
bill  of  exceptions  is  futile.i^  Objections  to  the  giving  or  refusal  of  in- 
structions must  be  taken  before  the  jury  retires. 20  It  is  too  late  to  ob- 
ject after  the  jury  retires,i  or  the  day  after  verdict,2  or  on  motion  for  new 


isAnte,  §  900[d].  120.  20  L.  ed.  58:  Thiede  v.  Utah.  159 

isPost,  §  1932.  U.  S.  511,  40  L.  ed.  238,  16  Sup.  Ot. 

i4Benson  v.  United  States.  146  U.  Rep.  62;  Tnisman  v.  F.  R.  Patch  Co. 

8.  332.  .333,  36  L.  ed.  994,  13  Sup.  Ct.  101  Fed.  373,  41  C.  C.  A.  388. 

Rep.    60:     Farmers    &    T.    Bank    v.  1 9 St.  Louis  Ry.  v.  Spencer.  71  Fed. 

Greene.  74  Fed.  439,  20  C.  C.  A.  500:  93.  18  C.  C.  A.  114;  United  States  v. 

see  Kelsey  v.  Hobby,  16  Pet.  277,  10  Carey,  110  U.  S.  51,  28  L.  ed.  67,  3 

L.   ed.   961.    However,   motion   to  ex-  Sup.  Ct.  Rep.  424. 

elude  or  strike  out  is  sometimes  suffi-  solmpixavement  Co.  v.  Munson,  14 

cient:    Lucas  v.  United  States.  163  U.  Wall.  449,  20  L.  ed.  872;  United  States 

S.  617,  41  L.  ed.  282,  16  Sup.  Ct.  Rep.  v.  Breitling,  20  How.  254.   15  L.  ed. 

1168.  902:    Hickory   v.    United   States.   151 

i5lnsurance  Co.  of  North  America  U.  S.  316.  38  L.  ed.  177,  14  Sup.  Ct. 

v.  fiuardiola.  129  U.  S.  643.  32  L.  ed.  Rep.  334:    Com.  Trav.  Assn.  v.  Ful- 

802.  9  Sup.  Ct.  Rep.  425.  ton.    79   Fed.   423,    24  C.   C.   A.   654; 

isPatrick  v.  Graliam,  132  U.  S.  627,  Sternenberg  v.  Mailhos,  99  Fed.  40, 

33  L.  ed.  460,  10  Sup.  Ct.  Rep.  194;  3i>  C.   C.  A.  408. 

San  Pedro  Co.  v.  United  States,  146  iPark  v.  Bushnell.  60  Fed.  585,  9 


U.  S.  136,  36  L.  ed.  911,  13  Sup.  Ct, 
Rep.  94. 

IT  Central  R.  R.  v.  Soper,  59  Fed 
879.  8  C.  C.  A.  341. 

18  Railway  Co.  v.  Heck,  102  U.  S. 

874 


C.  C.  A.  138:  Bracken  v.  LTnion  Pac. 
R.  R.  56  Fed.  450,  5  C.  C.  A.  548. 

2Phelps  V.  Mayer,  15  How.  160,  14 
L.  ed.  643. 


Procedure]        TAKING    OF    OBJECTIONS   AND    EXCEPTIONS. 


§  922    [b] 


trial.3     The   absence  of  counsel  is  no  excuse.^     No   rule  of  practice   of  a 
lower  court  can  validate  exc,eptions  after  close  of  trial.5 

The  record  on  appeal  must  affirmatively  show  that  objection  was  timely, « 
but  where  a  bill  of  exceptions  recites  that  it  was  signed  during  the  term 
and  purports  to  state  what  happened  at  the  trial,  it  will  be  assumed  that 
exception  was  taken  at  the  trial,  unless  the  contrary  is  disclosed  by  the 
language.  7 

[b]     Necessity  of  specific  objections  to  evidence. 

Objections  to  evidence  must  be  specific,  not  merely  vague  and  general,  lo 
The  precise  point  on  which  a  ruling  is  asked  should  be  apparent  there- 
from; n  and  the  party  should  specify  the  precise  part  of  the  evidence  ob- 
jected to,  since  if  the  objection  covers  any  admissible  evidence  it  is  proper- 
ly overruled.i2  An  objection  that  evidence  is  incompetent  irrelevant  and 
immaterial  is  too  general  if  in  any  possible  circumstances  it  could  be  con- 
sidered relevant  material  or  competent.  12  So  an  objection  has  been  deemed 
bad  that  evidence  is  "immaterial  and  improper."i*  Objection  to  the  ad- 
mission in  evidence  of  a  copy  of  a  letter  not  specifying  the  grounds  there- 
for, is  unavailing.  15  The  specified  objection  is  a  waiver  of  all  others. is 
On  appeal  the  party  is  confined  to  the  objection  taken.iT  If  he  has  taken 
no  exception  there  is  no  question  for  review.is  An  objection  is  of  no  avail 
unless  it  is  followed  by  an  exception  to  the  ruling  thereon.20 


sLewis  V.  United  States,  146  U.  S. 
379,  .36  L.  ed.  1011.  13  Sup.  Ct.  Rep. 
1.36. 

■» Stewart  v.  Wvoming,  etc.  Co.  128 
V.  S.  390,  32  L."ed.  442,  9  Sup.  Ct. 
Rep.  101 :  but  see  Merchants'  Ex. 
Bank  v.  McGraw,  76  Fed.  936,  22 
C.  C.  A.  622. 

^Johnson  v.  Carber,  73  Fed.  .523, 
19  C.  C.  A.  5.56;  and  see  Price  v. 
Pankhurst,  53  Fed,  313.  3  C.  C.  A. 
551. 

ernited  States  v.  Carev.  110  U.  S. 
51,  28  L.  ed,  67.  3  Sup,  Ct.  Rep.  424; 
Yates  V.  United  States.  90  Fed.  02, 
32  C.  C.  A.  .507:  Stone  v.  United 
States,  64  Fed,  677,  12  C.  C.  A.  451 ; 
Hutchins  V,  King,  1  Wall.  60,  17  L, 
ed.  544. 

"New  Orleans,  etc.  R.  R.  v.  Jopes, 
142  U.  S.  22,  2.3,  35  L.  ed.  922,  12  Sup 
Ct.  Rep.  109;  see  French  v.  Edwards 
13  Wall.  516,  20  L.  ed.  705. 

lOCamden  v.  Doremus,  3  How.  530. 
11  L.  od.  705:  Stebbins  v.  Duncan,  lOS 
U.  S.  40,  27  L.  cd.  641.  2  Sup.  Ct 
Rep.  313. 

iiSparf  V.  United  States.  156  U.  S 
57,  39  L.  ed,  343,  15  Sup.  Ct.  Rep 
273. 


i2]Moore  v.  Bank  of  Metropolis,  13 
Pet.  310.  10  L.  ed.  172;  United  States 
v.  McMasters,  4  Wall.  682,  18  L.  ed 
.311. 

isSparf  V.  United  States.  156  U.  S 
57.  39  L.  ed.  343.  15  Sup.  Ct.  Rep 
273  :  Ogden  City  v.  Weaver,  108  Fed 
565.  47  C.  C.  A.  485. 

i4Mine  &  S.  Co.  v.  Parke  Co.  107 
Fed.  884,  47  C.  C.  A.  34.  But  com- 
pare Wood  V.  Weimar.  104  U.  S.  795, 
26  L.  ed.  782. 

isToplitz  V.  Hedden.  146  U.  S.  255, 
.36  L.  ed.  961,  13  Sup.  Ct.  Rep.  70. 

ifiHinde  v.  Longworth,  11  Wlieat, 
199,  6  L.  ed.  454;  Evanston  v.  Gimn, 
99  U.  S.  665,  25  L,  ed,  .306;  Belk  v. 
Meagher,  104  U.  S.  289.  26  L.  ed. 
735. 

IT  Burton  v.  Driggs,  20  ^^■all.  1,33, 
22  L,  ed.  299. 

isStoddard  v.  Chambers,  2  How. 
31.5,  310,  11  L.  ed.  269:  Schuchardt  v. 
Aliens,  1  Wall.  .367,  17  L.  ed.  642. 

2  0Xpwport  X.  Co.  v.  Pace.  158  U. 
S.  37,  39  L.  ed.  887,  15  Sup.  Ct.  Rep. 
743;  .nited  States  v.  Breitling,  20 
How.  254,   15  L,  ed,  902, 


875 


§   922    [c]  I'liOCEDUKE    I^'    COMMON-LAW    CAUSES.  [Code   Fed. 

[cj     Necessity  for  specific  objection  to  instructions  given  or  refused. 

Rules  of  the  Supreme  Court  and  of  the  circuit  courts  of  appeals  provide 
that  "the  party  excepting  shall  be  required  to  state  distinctly  the  several 
matters  of  law"  in  a  court's  charge  to  which  he  excepts;  and  direct  the 
lower  court  to  insert  in  the  bill  of  exceptions  "those  matters  of  law  and 
those  only."2  The  lower  courts  have  no  power  to  waive  or  modify  these 
requirements. 3  The  rule  is  that  a  general  exception  to  a  charge  is  un- 
availing4  if  any  portion  of  the  charge  is  correct.^  The  whole  must  be  sub- 
stantially wrong  before  a  general  exception  will  avail  for  any  purpose. 6 
If  some  instructions  are  unobjectionable,  the  others  must  be  pointed  out 
specifically."  An  exception  to  all  and  to  each  part  "of  a  charge  is  too 
general ;"8  so  also  is  objection  to  the  "theory  announced  throughout  the 
instruction ;"9  or  any  objection  that  the  court  did  not  give  eighteen  special 
charges  in  the  specific  language  requested; lo  or  an  objection  that  the  court 
erred  in  charging  of  its  own  motion  in  lieu  of  giving  the  instructions 
prayed;  11  or  an  objection  to  such  portions  of  the  charge  as  vary  from 
certain  requests  made.i2  The  part  excepted  to  must  be  distinctly  pointed 
out.13  If  the  part  of  a  charge  in  which  occurs  the  eiToneous  proposition 
of  law  stands  by  itself,  unembarrassed  by  an  admixture  of  fact  or  the 
1)1  ending  of  other  points  of  law  an  exception  can  be  taken  thereto  by  quot- 
ing it.i4  But  in  other  cases  this  is  not  strictly  sufficient  because,  by  the 
rules  above  quoted,  the  exception  must  go  to  the  alleged  false  statement 
of  law,  and  not  the  charge.  Hence  it  is  then  necessary  to  specify  the 
alleged  false  proposition  of  law  and  refer  also  to  the  part  of  the  charge 
containing  it.is     The  proper  form  of  objection  has  been  suggested  to  be 

2See  post,  §  1933.  157  U.  S.  86,  39  L.  ed.  624.  15  Sup 

sPrice  v.  Pankhurst,  53  Fed.  313,  Ct.  Rep.  491. 

3  C.  C.  A.  551;  and  see  Johnston  v.  sBlock  v.  Darling,  140  U.   S.  238. 

(iarber,  73  Fed.  523.  19  C.  C.  A.  556.  35'  L.  ed.  476.  11   Sup.  Ct.  Rep.  832; 

4Becki\vith  v.   Bean.   98   U.   S.   284,  Masonic  Assn.  v.  Lvman.  60  Fed.  498, 

25  L.  ed.   131:  Railroad  Co.  v.  Var  23  L.R.A.  517,  9  C.  C.  A.  104;   Price 

nell,   98  U.    S.    479,   25   L.   ed.   233;  v.  Parkhurst,  53  Fed.  312,  3  C.  C.  A. 

Mobile  Co.  v.  Jurev,   111   U.   S.  596.  551;    Western,  etc.  Co.  v.  Polk,   104 

28  L.  ed.  532.  4   Sup.   Ct.  Rep.   566 ;  Fed.  650.  44  C.  C.  A.  104. 

Jones  v.  East  Tenn.  R.  R.  157  U.  S  ^Bogk  v.  Qassert,  149  U.  S.  26,  37 

682.  39  L.  ed.  858,  15  Sup.  Ct.  Rep.  L.  ed.  631.  13  Sup.  Ct.  Rep.  738. 

719;    Baggs  v.  Martin,   108  Fed.   33.  loChateaugav    Ore    Co.    v.  Blake. 

47  C.  C.  A.  175.  144  U.  S.  488,  36  L.  ed.  510,  12  Sup. 

S.Johnston  v.   Jones,   1   Black.   220,  Ct.  Rep.  731. 

17  L.  ed.  119:   Rogers  v.  Marshal,    1  uLucas  v.  Brooks,  IS  Wall.  456.  21 

Wall.   654.   17   L.  ed.   717:    Beaver  v.  L.  ed.  779. 

Taylor.  93  U.   S.   54,  23   L.   ed.   798;  laBeaver  v.  Taylor,  93  U.  S.  55,  23 

Cooper  V.  Schlesinger,  111  U.  S.  151.  L.  ed.  797. 

152.  28   L.   ed.  382.  4  Sup.  Ct.   Rep.  isRailroad    Co.   v.   Varnell.   98   V. 

360;  ITnion  Pac.  Rv.  Co.  v.  Callaghen,  S.  485,  25  L.  ed.  233. 

101  U.  S.  95,  40  L.  ed.  630.  16  S>ip.  i^Felton  v.  Newport,  92  Fed.  474, 

Ct.  Rep.  493:'  Cass  Co.  v.  Gibson,  107  34   C.   C.    A.    470;     Columbus   Co.  v. 

Fed.  366,  46  C.  C.  A.  341.  Crane  Co.  98  Fed.  951,  40  C.  C.  A.  35. 

eAnthonv  v.   Louisville   R.   R.    13-.'  i  ".Columbus   Co.   v.   Crane  Co.   101 

U.  S.  173,  33  L.  ed.  301,  302,  10  Sup.  Fed.  56.  41  C.  C.  A.  189;   Stewart  v. 

Ct.  Rep.  53.  .Morris,  96  Fed.  703,  37  C.  C.  A.  562. 

"Baltimore,  etc.  R.  R.  v.  Mackey. 

876 


I 


rio'jedure]  POWER   TO   GRAXT   NEW   TRIAL.  §   023   [a] 

that  "the  plaintifl'  [or  defendant]  except  to  the  ruling  that  [stating  a  single 
proposition  or  matter  of  law]  as  shown  by  the  following  portion  of  the 
charge  [setting  it  out]. "is  The  form  of  bill  of  exceptions  is  considered 
elsewhere.i'^ 

§  923.     Power  to  grant  new  trial  in  jury  cases. 

All  of  the  said  courts  shall  luive  power  to  grant  new  trials  in  cases 
where  there  has  been  a  trial  by  jury^  for  reasons  for  which  new  trials 
have  usually  been  granted  in  the  courts  of  law. 
R.  S.  §  72G,  U.  S.  Comp.  Stat.  1901,  p.  584. 

[a]     History  and  scope  of  the  section. 

The  foregoing  provision  was  originally  §  17  of  the  judiciary  act  of  1789.1 
It  is  to  be  read  in  connection,  and  is  contemporaneous 2  with  that  part  of 
the  seventh  amendment  declaring  that  '"no  fact  tried  by  a  jury  shall  be 
otherwise  re-examinable  in  any  court  of  the  United  States  than  according 
to  the  rules  of  the  common  law.""-  The  authority  to  grant  new  trials  on 
established  common-law  grounds,  conferred  by  R.  S.  §  726,  was  undoubted- 
ly intended  to  confer  a  right  to  re-examine  "according  to  the  rules  of  the 
common  law"  within  the  seventh  amendment.  This  adherence  to  com- 
mon-law rules,  however  refers  to  essentials  and  not  to  subordinate  mat- 
ters of  procedure.  Thus,  application  for  new  trial  is  now  permissible  after 
entry  of  judgment,  although  at  common  law  it  was  required  to  be  before 
judgment.4  It  is  furthermore  well  settled  tliat  a  State  statute  giving  an 
absolute  right  of  new  trial  in  ejectment  cases  should  be  followed  by  the 
Federal  courts  as  a  rule  of  property,  although  in  other  respects  the  Federal 
courts  are  not  required  to  conform  to  the  State  practice,  forms  and  modes 
of  proceeding  on  motions  for  new  trial.5  There  is  no  law  or  rule  prevent- 
ing the  granting  of  a  second  new  trial  after  a  second  trial; 6  though  it  haa 
been  doubted  whether  a  rehearing  may  properly  be  granted  of  an  order 
granting  or  refusing  a  new  trial."  The  rules  guiding  the  court  on 
motion  for  new  trials  are  substantially  different  from  the  rules  governing 
review  on  appeal.  Thus  new  trial  will  be  refused  if  on  the  whole,  sub- 
stantial justice  has  been  done,  notwithstanding  mistakes  at  the  trial; 
while  on  error,  with  bill  of  exceptions,  the  instructions  of  the  court  must 
stand  or  fall  upon  their  own  intrinsic  soundness  in  law.s  So  an  error  of 
law  unexcepted  to  can  be  made  the  ground  of  motion  for  new  trial  though 
it  would  not  be  reviewable  on  error;  n  and  failure  to  give  an  instruction 

isColumbus   Co.  v.   Crane   Co.   101  eParker  v.  Le^^^s.  Hempst.  72,  Fed. 

Fed.  56.  41  C.  C.  A.  189.  Cas.  Xo.  10.741a. 

I'Post.  §  1932.  TLaird  v.  Dp  Soto.  23  Fed.  780. 

lAct  Sept.  24,  1789,  c.  20,   1   Stat.  sMcLanahan  v.  Universal  Ins.  Co. 

83.  1    Pet.    183,   7   L.    ed.    105:    Rowe   v. 

2See  ante,  §  912,  note.  Matthews,  18  Fed.  i:'3. 

3See   post,   §  2081.  sRailway  Co.  v.  Heck,    102    U.  S. 

4 Arnold    v.   Jones,    Bee,    104.    Fed.  120.  20  L.' ed.   58;    United   States  v. 

Cas.  Xo.  559:  compare  §  924.  Soufert,  78  Fed.  520:   Post  v.  Wise, 

5See  ante,  §  900[d].  101   Fed.  205. 

877 


§  923   [b]  PliOCEDLUE    IN    COMMON-LAW    CAUSES.  [Code  Fed. 

although  not  asked   may   be  ground  of  new   trial   where  the   omission  re- 
sulted in  a  clear  failure  of  justice.io 

[b]  Reasons  for  new  trial — in  general. 

This  conduct  of  the  jury  is  a  proper  ground  of  new  trial.i*  So  mis- 
conduct of  counsel  or  of  a  party  calculated  to  influence  the  jury  improperly 
is  ground  for  the  motion.  1 5  Error  of  law  occurring  at  the  trial  is  also 
ground,i6  provided  it  materially  affected  the  result.i^  Federal  courts  have 
also  granted  new  trial  where  the  illness  or  incapacity  of  the  judge  resulted 
in  a  failure  to  have  a  bill  of  exceptions  settled,  and  the  opposite  party 
would  not  agree  to  the  supplying  of  the  omission.is  Newly  discovered 
evidence  is  ground  for  new  triali^   and  sometimes  surprise.20 

[c]  —  excessive  damages. 

The  award  of  excessive  damages  in  a  verdict  is  good  ground  for  granting 
of  a  new  trial.  3  In  fact  that  is  the  proper  remedy  ;4  there  is  no  right  to 
allege  error  therein  without  application  having  first  been  made. 5  An  ex- 
cessive verdict  in  a  case  where  there  is  an  exact  measure  of  damages  should 
be  sought  on  the  ground  of  insufliciency  of  evidence  rather  than  upon  this 
ground.  This  ground  is  properly  available  where  there  is  no  definite 
measure  of  damages.  The  damages  must  be  "palpably  excessive ;"6  such 
as  to  satisfy  the  court  that  the  verdict  was  "perverse,  or  the  result  of 
gross  error,  or  that  the  jury  have  acted  under  the  influence  of  undue 
motion  or  misconception ;"t  or  "so  excessive  or  outrageous.  ...  as  to 
demonstrate  that  the  jury  have  acted  against  the  rules  of  law,  or  have 
suffered     their    passions,    their    prejudices    or   their  perverse   disregard  of 

loCalbreath  v.  Gracy.  1   Wash.  C.  20 Atchison,  etc.  R.  R.  v.  Howard, 

C.  219,  Fed.  Cas.  No.  2",29G.  49  Fed.  2,07,  1  C.  C.  A.  229. 

i4United   States  v.  Reid,  12  How.  3Chesapeake,   etc.   Co.  v.   Knapp,  9 

366,  13  L.  ed.  1023;  Mattox  v.  United  Pet.  570,  9  L.  ed.  222;   Arkansas  C. 

States,  146  U.  S.  150,  36  L.  ed.  917,  Co.  v.  Mann,  130  U.  S.  75.  32  L.  ed. 

13   Sup.  Ct.   Rep.   50;   United  States  854,  9  Sup.  Ct.  Rep.  458;  Baltimore, 

V.  Five  Cases,  etc.  2  N.  Y.  Leg.  Obs.  etc.  R.   R.  v.   Fifth  B.   C.   137  U.   S. 

84.  Fed.  Cas.  No.  15.110.  576,  34  L.  ed.  784,  11  Sup.  Ct.  Rep. 

i^Baggs  V.  Martin,  108  Fed.  33,  47  185;  Lincoln  v.  Power  151  U.  S.  436, 

C.   C.  A.  175;   Preston  v.  Mutual  L.  38  L.  ed.  224,  14  Sup.  Ct.  Rep.  .387. 

I.  Co.  71   Fed.  467.  ^Chesapeake,  etc.  Co.  v.  Knapp,  9 

leThompson  v.  Bowie,  4  Wall.  472,  Pet.  570,  9  L.  ed.  222;   Arkansas  C. 

18   L.   ed.   423:    Rochell    v.   Phillips,  Co.  v.  Mann.  130  U.  S.  75,  32  L.  ed. 

Hempst.  22,  Fed.  Cas.  No.  11,974a.  854,  9  Sup.  Ct.  Rep.  458. 

iTLucas  V.   Brooks,   IS  Wall.   454,  sLincoln  v.  Power.   151   U.  S.  436, 

21  L.  ed.  779;  Rowe  v.  Mathews.  18  38  L.  ed.  224,  14  Sup.  Ct.  Rep.  387; 

Fed.  133.  Wabash    Ry.    v.    McDaniels,    107    U. 

isSee   Hume   v.   Bowie.    148  U.   S.  S.  456,  27  L.  ed.  607,  2  Sup.  Ct.  Rep. 

253,  37  L.  ed.  438,  13  Sup.  Ct.  Rep.  932. 

;>82.  where  there  was  a  rule  of  court  6 White  v.     Arleth,     1     Bond.    310, 

to   that   effect;    Manning   v   German  Fed.  Cas.  No.  17,536. 

Ins.  Co.  107  Fed.  .54.  46  C.  C.  A.  144  -Wightman  v.  Providence,  1   Cliff. 

19 See   Board   of   Comrs.   v.    Keene  524,  Fed.  Cas.  No.  17,630. 
Bank,  108  Fed.  516,  47  C.  C.  A.  464; 
Ex  parte  Fuller.  182  U.  S.  562,  45  L. 
ed.  12.30.  21  Sup.  Ct.  Rep.  871. 

878 


i 


I'rocedui-e]  POWER   TO   GRANT   NEW   TRIAL.  §   92::    le] 

justice  to  mislead  tliem."s  If  a  verdict  is  so  excessive  as  to  show  passion 
and  prejudice  the  granting  of  a  new  trial  rather  than  remission  of  excess 
is  the  remedy.  9  But  in  ordinary  cases  of  excessive  verdict  the  court  will 
make  a  remission  of  the  excess  a  condition  of  the  denial  of  a  new  trial ;io 
and  a  consent  to  such  remission  hinds  the  prevailing  party. n 

[d]  — insufBciency  of  evidence  or  verdict  against  weight  of  evidence. 

If  the  evidence  is  insufficient  to  support  a  verdict,  the  court  should  award 
a  new  trial; is  and  if  a  jury's  verdict  is  against  the  weight  of  evidence, 
motion  for  new  trial  is  the  proper  remedy.i4  But  the  evidence  must  be 
clearly  insufficient,!  5  so  that  the  court  can  see  there  has  been  some  mistake. 
or  some  improper  motive,  or  bias,  or  feeling.is  It  is  not  enough  that  the 
courts  would  have  found  otherwise,!  f  or  that  there  was  a  strong  pre- 
ponderance of  evidence  to  the  contrary,!  8  although  some  cases  show  per- 
haps a  stronger  tendency  to  the  entertaining  of  such  a  motion  than  the 
foregoing  would  imply.! « 

[e]  Procedure. 

In  the  absence  of  statute  there  is  no  power  in  a  court  to  entertain  a 
motion  for  new  trial  made  at  a  term  subsequent  to  the  rendition  and 
entry2  of  judgment,?  though  it  may  then  award  a  new  trial  previously 
applied  for.  The  court  may  by  standing  rule  limit  the  time  within  a  term 
when  the  application  may  be  made,*  and  rules  of  court  prescribing  the 
time  and  mode  of  applying,  must  be  observed. 5  R.  S.  §  987  provides  for  a 
stay  of  execution  for  forty-two  days  after  judgment  to  enable  a  party  to 

8 Whipple  V.  Cumberland,  2  Story,  Co.  19  Fed.  405;  Davey  v.  Aetna  Ins. 

661,   Fed.   Cas.   No.   17,516;    see  also  Co.  20  Fed.  494;   Davis  v.  Memphis. 

Malloy  v.  Bennett,  15  Fed.  376 :  Mar-  22  Fed.  887. 

riott  V.  Fearing.  11   Fed.  846;  Swann  !7Alsop  v.  Com.  Ins.  Co.   1   Sumn, 

V.  Bowie,  2   Cranch   C.   C.   221.   Fed.  451,  Fed.  Cas.  No.  262;  per  Story,  J. 

Cas.  No.  13,672:   Lancaster  v.  Provi-  is  Wilkinson    v.    Greely,     1     Curt, 

dence  Co.  26  Fed.  233.  439,  Fed.   Cas.  No.   17.672;   per  Cur- 

sArkansas  C.  Co.  v.  Mann.  130  U.  tis,  J. 

S.  75,  32  L.  ed.  854,  9  Sup.  Ct.  Rep.  isSee  Mt.   Adams   Rv.  v.   Lowery, 

458.  74  Fed.  470.  20  C.  C.  A.  596:   Felton 

loNorthern  Pac.  R.  R.  v.  Herbert,  v.  Spiro.  78  Fed.  582.  583.  24  C.  C.  A. 

116  U.  S.  646,  29  L.  ed.  755,  6  Sup.  321;  Ulman  v.  Clark,  100  Fed.  183. 

Ct.  Rep.  590:   Kennon  v.  Gilmer,  131  2As  to  entrv  see  Emma  S.  M.  Co. 

U.    S.   29.  33  L.   ed.    110.   9   Sup.   Ct.  v.    Park.    14   Blatchf.    411,    Fed.    Cas. 

Rep.  696;    Hansen    v.  Bovd,    161   U.  No.  4,467. 

S.  411.  40  L.  ed.  746.  16  Sup.  Ct.  Rep.  sCoughlan   v.   District  of  Col.   106 

571.  U.  S.  7.  27  L.  ed.  74,  1  Sup.  Ct.  Rep. 

iiLewis  V.  Wilson,  151  U.   S.  555,  37;    Brooks  v.   Burlington   &   S.   W. 

28  L.  ed.  267.  14  Sup.  Ct.  Rep.  419.  R.   R.   102   U.   S.    107,  26  L.   ed.   91; 

isPleasants  v.  Fant,  22  Wall.  122,  Belknap  v.  United  States,  150  U.  S. 

22  L.  ed.  780:   Metropolitan  R.  R.  v.  590  37  L.  ed.   1192,  14  Sup,  Ct.  Rep. 

Moore.  121  U.  S.  569,  30  L.  ed.  1022,  183:    INlanning    v.    German    Ins.    Co. 

7  Sup.  Ct.  Rep.  1334.  107  Fed.  52,  46  C.   C.  A.   144. 

liHeddcn  v.  Iselin.  142  U.  S.  680,  4Henning  v.  Western  U.  T.  Co.  41 

35  L.  ed.  1155,  12  Sup.  Ct.  Rep.  330.  Fed.    805;    Post    v.    Wise,    101    Fed. 

isWalers  v.  Mutual  Ins.  Co.  7  Rep.  205. 

i56.  Fed.  Cas.  No.  17,267.  f'Henning  v.  Western  U.  T.  Co.  41 

ic^Juskcgon    Bank    v.    N.    W.    Ins.  Fed.    865. 

879 


§   023    [f]  PROCEDURE  IN  COMMON-LAW  CAUSES.  [Code  Fed. 

file  petition  for  a  new  trial, s  but  it  would  seem  that  where  the  forty-two 
days  would  extend  beyond  the  close  of  the  term,  applfeation  for  the  stay 
should  be  made  during  the  term.  Bill  of  exceptions  is  not  necessary  on 
motion  for  new  trial  as  the  recollection  of  the  judge  can  be  appealed  to;s 
but  a  bill  of  exceptions  may  be  used,  9  though  there  is  authority  for 
the  holding  that  after  the  obtaining  of  a  bill  of  exceptions  motion  for  new 
trial  will  not  be  entertained. lo 

[f]     Review  of  order  denying  new  trial. 

An  order  granting  a  new  trial  is  not  a  final  judgment.i2  It  is  the  uni- 
form rule  in  Federal  practice  that  the  granting  or  denying  of  a  new  trial 
is  discretionary  with  the  court  and  not  assignable  as  error.is  The  rule  is 
uniformly  applied  in  all  cases  where  the  right  to  grant  new  trial  exists  and 
the  court  exercises  the  discretion  conferred,  whether  the  ground  of  the 
motion  be  excessive  damages,i4  insulliciency  of  the  eividence,i5  errors  in 
law,i6  surprise,!"  newly  discovered  evidence,i8  or  misconduct  of  coun- 
sel.19  But  if  the  court  order  new  trial  without  power  to  do  so, 20  or 
refuse  to  entertain  the  motion  in  the  belief  that  it  has  no  power,i  or  re- 
fuses to  consider  affidavits  proj^erly  before  it  on  the  motion,2  or  refuse  it 
when  a  State  law  which  is  a  rule  of  decision  for  Federal  courts  gives  it  as 
matter  of  right, 3  this  is  an  error  which  may  be  reviewed. 

§  924.     Stay  of  execution  on  new  trial — new  trial  where  jury 
waived. 

When  a  circuit  court  enters  judgment  in  a  civil  action,  either 

ePost,  §  924.  26;    Marine  Ins.    Co.    v.    Young,    5 

sChandler    v.    Thompson,    30    Fed.  Cranch,  187,  3  L.  ed.  74;  Neidlinger 

38;  Hynes  v.  Chicago  Ry.  23  Fed.  18.  v.  Yoost,  99  Fed.  240,  39  C.  C.  A.  494; 

sBrewster  v.  Gelston,  1  Paine,  426,  Lincoln   v.    Sun   Vaper   Co.   59   Fed. 

Fed.  Cas.  No.  1,853.  761,  8  C.  C.  A.  253. 

lOBell  V.  Cunningham,  1  Sumn.  89,  leFishburn  v.  Chicago  Ry.  137  U. 

Fed.  Cas.  No.  1,246.  S.   60,   34   L.    ed.   585,    11    "Sup.    Ct. 

i2See  ante,  §  77.  Rep.  8. 

isBarr  v.  Gratz,  4  Wheat.  216,  4  1 7 Atchison,  etc.  R.  R.  v.  Howard, 

L.  ed.  554 ;  Brown  v.  Clark,  4  How.  49  Fed.  207,  1  C.  C.  A.  229. 

15,  11  L.  ed.  855;  Newcomb  v.  Wood,  isBoard  of  Comrs.  v.  Keene  Bank, 

97  U.  S.  581,  24  L.  ed.  1085;  Holder  108  Fed.  516,  47  C.  C.  A.  464. 

V.  United  States,  150  U.  S.  91,  37  L.  lOBaggs  v.  Martin,  108  Fed.  33,  47 

ed.  1010.  14  Sup.  Ct.  Rep.  10;  Adding-  C.  C.  a"  175;  see  Chandler  v.  Thomp- 

ton  V.  United  State.s,  165  U.  S.  185,  son,  30  Fed.  45. 

41  L.  ed.  679,  17  Sup.  Ct.  Rep.  288;  20Manning  v.  German  Ins.  Co.  107 

Louisville  R.  R.   v.   White,   100  Fed.  Fed.  54,  46  C.  C.  A.  144;  Phillips  v. 

242,  40  C.  C.  A.  352.  Negley,  117  U.  S.  671,  29  L.  ed.  1015, 

i4Railroad   Co.   v.   Fraloflf,   100   U.  6  Sup.  Ct.  Rep.  901. 

S.  31.  25  L.  ed.  535;  Ash  v.  Prunier.  iFelton   v.   Spiro,  78  F<»d.  576,  24 

105   Fed.  723,  44  C.  C.  A.  675;   New  C.  C.  A.   321. 

York  R.  R.  v.  Anderson,  50  Fed.  462,  2Mattox  v.   United   States.  146  U. 

1   C.  C.  A.  529;   Morning  Journal  v.  S.    147,    36    L.    ed.    919.    13    Sup.    Ct. 

Rutherford.  51   Fed.  513,  2  C.  C.  A.  Rep.  50. 

354.  16  L.R.A.  803.  sShreve  v.  Cheeseman,  69  Fed.  787, 

15 Moore  v.  United   States,   150  U.  16  C.  C.  A.  413. 
S.  57.  37  L.  ed.  996,  14  Sup.  Ct.  Rep. 

880 


Procedure]  STAY    OF    EXECUTION.  §  924   [b] 

upon  a  verdict  or  on  a  finding  of  the  court  upon  thi;  facts,  m  cases 
where  such  finding  is  allowed,  execution  may,  on  motion  of  either 
part}^  at  the  discretion  of  the  court,  and  on  such  conditions  for  the 
security  of  the  adverse  party  as  it  nuiy  Judge  proper,  l)e  stayed  forty- 
two  days  from  the  time  of  entering  judgment,  to  give  time'^'"^  to 
file  in  the  clerk's  office  of  said  court  a  petition  for  a  new  trial.  If 
such  petition  is  filed  within  said  term  of  forty-two  days,  with  a 
certificate  thereon  from  any  judge  of  such  court  that  he  allows  it 
to  be  filed,  which  certificate  he  may  make  or  refuse  at  his  discre- 
tion, execution  shall,  of  course,  be  further  stayed  to  the  next  session 
of  said  court.  If  a  new  trial  be  granted,  the  former  judgment  shall 
be  thereby  rendered  void. 

R.  S.  §  987,  U.  S.  Comp.  Stat.  1901,  p.  708. 

[a]  History  and  scope  of  section. 

The  general  provision  as  to  stay  of  execution  is  given  elsewhere. 5  This 
provision  is  based  upon  §  18  of  the  judiciary  act  of  1789,«  and  an 
amendatory  act  of  1865.7  \Yhile  R.  S.  §  726s  only  authorizes  application 
for  new  trial  in  jury  cases,  this  section  impliedly  sanctions  the  power  of 
the  court  to  grant  new  trial  in  cases  where  jury  is  waived  and  the  case  is 
tried  by  the  court  with  findings.  It  does  not  authorize  stay  to  permit  of 
application  for  new  trial  where  the  issues  were  referred  to  a  referee  and 
judgment  was  entered  upon  his  report.9  But  prior  to  entry  of  judgment  on 
such  a  reference,  motion  to  set  aside  hia  report  and  grant  a  new  trial  has 
been  entertained  pursuant  to  State  practice  and  a  rule  of  the  Federal 
court.  10 

[b]  Time  for  making  application  for  new  trial. 

It  has  been  held  that  this  section  does  not  prescribe  the  time  for  apply- 
ing for  new  trial,  but  merely  the  time  and  mode  whereby  such  application 
may  constitute  a  stay.is  But  as  a  trial  court  loses  power  to  entertain  an 
application  for  new  trial  at  the  end  of  the  term  when  judgment  was 
entered,i4  the  proceeding  constituting  the  application  for  new  trial  must 
be  instituted  at  that  term  and  perhaps  a  rule  may  require  it  to  be  within 
a  given  time  during  that  tprm.i!^ 

sPost,  §  1866.  lORobinson  v.  Mutual  Ren.  Ins.  Co. 

6Act  Sept.  24.   1789,  c.  20.   1   Stat.  10    Blatchf.    194.    Fed.    Cas.    Xo.    11,- 

83.  961. 

7Act  March  3,  1865.  c.  80,  §  4,   13  i^Felton  v.   Spiro.  78   Fed.   .^Sl.  24 

Stat.  .501.  C.  C.  A.  321  :  see  Rutberfonl  v.  IVtm 

8 Ante,   §  923.  M.  L.  I.  Co.  1    Fed.  4-50,   1    McCrury. 

flNeafie  v.  Cheesborough.  14  Blatchf.  120:    Emma,   etc.    Min.   Co.    v.    Park. 

313.    Fed.    Cas.    No.    10,004;    and    see  14  Biatch.''.  411.  Fed.  Cas.  No.  4.407. 

Fourth    Nat.    Bank   v.    Neyhardt.    13  i^Ante.  §  923[e]. 

Blatchf.   393.   Fed.   Cas.   No.   4.991.  i'>Ante.  §  923[e]. 
Fed.  Proc— 50.                                 881 


§  024    [c]  TROCEDUUE  IN  COMMON-LAVi'  CAUSES.  iCode   Fed. 

[c]     Effect  of  stay  and  grant  of  new  trial. 

The  stay  of  execution  allowed  by  this  section  to  permit  application  for 
new  trial,  and  the  seasonable  filing  of  such  application  suspend  the  opera- 
tion of  the  judgment  and  destroy  its  finality  for  purposes  of  writ  of  error. 
Hence  the  time  for  suing  out  a  Mrit  of  error  does  not  begin  to  run  whilf; 
the  application  is  pending; is  and  if  writ  of  error  is  taken  it  should  prob- 
ably be  dismissed, 19  would  certainly  be  dismissed  if  the  new  trial  is  grant- 
i\d.20     An  order  granting  a  new  trial  vacates  the  judgment. i 

§  925.     Remedies  on  Federal  judgments  by  executions  etc.  fur- 
nished by  state  laws. 
Tlie  party  recovering  a  judgment  in  any  common-law  cause  in 
any  circuit  or  district  court  shall  be  entitled  to  similar  remedies 
upon  the  same,  by  execution  or  otherwise,  to  reach  the  property  of 
the  judgment  debtor, '^'^^'^^^  as  arc  now  provided  in  like  causes  by 
the  laws  of  the  State  "in  which  such  court  is  held,  or  by  any  such 
laws  hereafter  enacted  which  may  be  adopted  by  general  rules^^^  of 
such  circuit  or  district  court;  and  such  courts  may,  from  time  to 
time,  by  general  rules,  adopt  such  state  laws  as  may  hereafter  be 
in  force  in  such  state  in  relation  to  remedies  upon  judgments,  as 
aforesaid,  by  execution  or  otherwise.^^^"^*^^ 
R.  S.  §  016,  U.  S.  Comp.  Stat.  1901,  p.  684. 

[a]     Statutes  affecting  execution  elsewhere  stated. 

There  are  several  provisions  respecting  Federal  execution  which  are  not 
stated  in  this  chapter  because  not  exclusively  applicable  to  execution  in 
common-law  causes.  These  provisions  permit  execution  to  run  in  other 
districts,*  provide  for  stay  of  execution  in  general,-''  and  in  suits  against 
revenue  ol!icers,6  relate  to  the  right  of  imprisonment  for  debt, 7  and  provide 
the  mode  of  selling  real  and  personal  property  under  Federal  judgment  or 
decree.8      Elsewhere  will   also  be   found  provisions   respecting  the   lien   of 

isCambuston  v.  United  States,  95  2oUnited  States  v.  Ayres.  9  Wall. 

U.  R.  285,  24  L.  ed.  448:  Northern  P.  610,  19  L.  ed.  627:   United  States  v. 

R.  R.  V.  Holmes,   155  U.  S.   138.  39  L.  Crusell,  12  Wall.  176,  20  L.  ed.  385; 

ed.  100.  15  Sup.  Ct.  Rep.    28   Kingman  United  States  v.  Young,  94  U.  S.  2.iO, 

V.  Western  Co.  170  U.  S.  675.  42   L.   ed.  24  L.  ed.  153. 

1192.  18  Sup.   Ct.  Rep.  786;   Rutber-  iManing  v.   German   Ins.   Co.   107 

ford  Co.  V.  Penn  Ins.  Co.  1  Fed.  456,  Fed.  54.  46  C.  C.  A.  144. 

1   McCrarv.  120:   Louisville  T.  Co.  v.  4 Post,  §  1865. 

Stockton.' 72  Fed.  1.  18  C.  C.  A.  408;  5Ante,  §  924:  post,  §§  1866,  1867. 

Merchants'   Co.   v.    Buckner,   98   Fed.  ePost,  §  1868. 

225.  39  C.  C.  A.  19;    Brown  v.  Evans,  ^Post,  S§   1558-1560. 

18  Fed.   56,  8   Sawy.   502.  sPost,  §§  1869-1872. 

isVoorhees  v.  2voye  Mfg.  Co.  151 
U.  S.  1.35,  38  L.  ed.  101,  14  Sup.  Ct 
Rep.  295. 

882 


Procefllue]  REMEDIES  ON   FEDERAL  JUDGMENTS  §  925   [dl 

Federal  judgment ;?   respecting  the  form  of  Federal  writsio   and  their  is- 
suance in  general. 11 

[b]  History  of  section. 

The  early  process  acts  contained  no  specific  provisions  conferring  on  Fed- 
eral courts  power  to  enforce  the  State  remedies  on  execution,  but  merelj 
a  general  section  requiring  conformity  of  practice,  which  applied  to  execu- 
tions as  well  as  other  proceedings.14  The  law  of  1872,  which  first  enacted 
the  present  general  conformity  provision,  contained  also  the  foregoing 
specific  section  respecting  remedies  by  way  of  execution.  It  permits  the 
Federal  courts  to  adhere  to  the  remedies  formerly  available  on  execution, 
rather  than  adopt  changes  in  the  State  law,  whereas  the  general  practice  is 
required  to  conform  "as  near  as  may  be"  to  existing  State  practice.is 

[c]  Scope  and  validity  of  section  in  general. 

The  power  of  Congress  to  legislate  with  respect  to  the  form  and  eflect 
of  executions  upon  Federal  judgments  was  settled  by  an  early  case. 1 6  Con- 
gress has  seen  fit  to  mold  the  Federal  practice  in  this  respect  to  that  of 
the  several  States,  and  the  Federal  courts  will  generally  follow  State  deci- 
sions construing  State  execution  laws  in  force  in  the  Federal  courts. i'?  The 
section  grants  similar  remedies  only  in  common-law  causes. 1 9  It  does  not 
apply  to  equity  decrees, 20  or  admiralty. 1  or  judgments  in  criminal  cases.2 
But  a  forfeiture  proceeding  under  the  revenue  laws  is  within  the  provision, 
although  of  purely  statutory  origin. 3 

[d]  Is  R.  S.  §  914  at  all  applicable  to  executions? 

There  is  ground  for  argument  that  R.  S.  §  914  requiring  conformity  to 
State  practice  forms  and  modes  of  proceeding,  is  not  necessarily  rendered 
entirely  inapplicable  to  executions,  by  R.  S.  §  916,  adopting  existing  State 
remedies  by  way  of  execution,  etc.6  The  language  of  R.  S.  §  914  is  broad 
enough  to  cover  the  entire  conduct  of  a  cause  in  the  trial  court,  including 
the  proceedings  to  enforce  the  judgment  rendered."     Such  was  the  construc- 

9Post.  §§  1861-1864.  567,  21  Blatchf.  138;  Steam  S.  C.  Co. 

10 Ante,  §  836.  v.  Sears.  9  Fed.  8.  20  Blatchf.  23. 

iiAnte.  §841.  iThe  Blanche  Vage,  16  Blatchf.  1, 

i4Wayman  v.  Southard.  10  Wheat,  Fed.  Cas.  No.   1,524. 
1,  6  L.  ed.  253;  Bank  of  U.  S.  v.  Hal-        2Clark  v.  Allen,  114  Fed.  374. 
stead,  10  Wheat.  51.  6  L.  ed.  265;  see        3ln  re  Quantity  of  Tobacco,  10  Ben. 

hi.story    of    conformity   enactments;  447.  Fed.  Cas.  No.   11,499;   see  as  to 

ante.  §  900 [a].  similar  claim  in  R.  S.  §  914,  ante  §. 

15 Ante,    §    900    [a].  900 [c]. 

isBnnk   of  U.   S.   v.   Halstead,    10        elt  has  been  said  that  R.  S.  §  914 

Wheat,  5.3,  6  L.   ed.  264.     See  ante,  does    not    extend    to    proceedings    to 

§799.  enforce  a    judgment:      United   Statr^s 

1  "United     States    v.    Morrison,    4  v.  Train.   12  Fed.  853;   see  also  La- 
Pet.    137.    7    L.    ed.    804;    Sowlos   v.  master  v.  Keeler.   123  U.  S.   376.  31 
Wittevs,  46  Fed.  497  ;  Ex  parte  Boyd,  L.ed.  242,  8  Sup.  Ct.  Rep.  197. 
105  U.  S.  652,  26  L.  ed.   1200.  TLamaster  v.  Keeler,  123  U.  S.  389, 

isiTudson  v.  Wood,  119  Fed.  704.  31  L.  ed.  242,  8  Sup.  Ct.  Rep.  197. 

20Steam  S.  C.  Co.  v.  Jones.  13  Fed. 

883 


I 


§  925   [e]  PROCEDURE    IN    COMMOX-LAW    CAUSES.  [Code  Fed. 

tion  given  the  earlier  conformity  law.s  I'ndoubtedly  R.  S.  §  910  renders  it 
inajjplicable  to  the  substance  of  the  remedy  for  the  enforcement  of  judg- 
ments;»  yet  it  would  seem  that  there  may  be  subordinate  details  of  prac- 
tice and  procedure  and  statutory  provisions  existing  for  the  benefit  of  the 
execution  debtor  to  which  it  would  apply.  It  is  to  be  remembered  that  there 
are  so  many  specific  Federal  provisions  respecting  executions  i"  that  there 
is  but  little  room  left  for  the  operation  of  the  general  conformity  law  even 
if  it  be  applicable. 

[e]  State  remedies  in  aid  of  judgment  adopted  by  this  section. 

Under  the  early  process  act  it  was  held  that  the  conformity  provision 
included  the  proceedings  upon,  as  well  as  the  nature  and  form  of  the  execu- 
tion; and  hence  that  an  imprisoned  Federal  debtor  might  have  the  benefit 
of  a  State  insolvency  proceeding  enabling  him  to  obtain  release  from  jail. 1 3 
Under  the  present  law  it  is  settled  that  the  State  remedy  by  proceeding 
supplementary  to  execution  for  examination  of  the  debtor,  is  available  in 
aid  of  a  Federal  judgment,  i*  A  State  law  authorizing  li.  fa.  against  a  city 
is  a  remedy  permitted  to  the  Federal  courts  under  this  clause. is  Man- 
damus in  aid  of  a  Federal  judgment  is  undoubtedly  available  in  the  Federal 
court  under  this  section,  where  authorized  by  State  law.  However,  it  is 
also  available  in  Federal  courts  in  the  absence  of  State  law,  under  R.  S. 
§  911,  authorizing  the  issue  of  scire  facis  and  other  writs,  agreeable  to 
law. 16  where  there  is  no  other  adequate  remedy.iT  If  the  State  law  gives 
a  statutory  remedy  that  is  available  and  should  first  be  tried. is  A  State 
law  providing  a  mode  for  suspending  the  lien  of  a  judgment  upon  realty 
pending  appeal   therefrom   has   been   held   applicable   to   Federal   practice.is 

But  it  is  only  remedies  to  reach  the  property  and  not  remedies  to  reach 
the  person,  that  are  provided  for  by  this  section.^  It  has  been  held  that 
a  State  statute  giving  the  State  a  right  to  levy  on  realty  and  denying  the 
remedy  to  others,  was  not  available  under  this  section  to  permit  such  levy 
in  favor  of  the  United  States  as  a  judgment  creditor,  in  view  of  other 
Federal  provisions  evincing  a  contrary  intent.'* 

[f]  State  exemption  laws. 

The  State  homestead  and  exemption  laws  are  in  force    in    the    Federal 

sWayman  v.  Southard.  10  Wheat.  iGAnte,  §  841. 

1,  6  L.  ed.  253.  I'Riggs    v.    Johnson    Co.    6    Wall. 

sLancaster  v.  Keeler,  123  U.  S.  389,  166,  18  L.  ed.  768;   United  States  v. 

31  L.  ed.  242,  8  Sup.  Ct.  Rep.  197.  Keokuk,  6  Wall.  518,   18  L.  ed.  918. 

lOSee  post,  H  1805.  et  seq.  isMoran  v.   Elizabeth,  9   Fed.   72; 

i3Beers  v.  Haughton,  9  Pet.  355,  9  see  President  v.  Mayor,  etc.  40  Fed. 

L.  ed.  155.  799. 

i4Ex  narte   Boyd,    105   U.    S.   647,  isUnited  States  v.  Sturgis,  14  Fed. 

26  L.  ed.   1200;    see  Bvrd  v.  Badger,  810. 

MoAll.  443,  Fed.  Cas.  Xo.  2.266.  sFrieaiy     v.     Giddings.     119    Fed. 

i5Canal,  etc.  Street  R.  R.  v.  Hart,  438. 

114  U.  S.  661.  29  L.  ed.  226,  5  Sup.  4Clark  v.  Allen,  117  Fed.  699. 
2t.  Hep.  1127. 

884 


Procedure] 


REMEDIES  ON   FEDERAL  JUDGMENTS. 


§  925   [g] 


courts  by  virtue  of  this  provision, 6  and  it  was  the  intent  of  Congress  to  ap- 
ply such  exemption  laws  even  against  the  United  States  as  judgment 
creditors."  Congress  might,  however,  validly  enact  exemption  laws  oi  its 
own.  8 

[g]     Adoption  of  changes  in  State  law  by  rule  of  court. 

State  execution  laws  passed  subsequent  to  the  enactment  of  the  above 
provision  are  not  in  force  in  the  Federal  courts  unless  adopted  therein; n 
and  the  same  rule  was  rigidly  applied  under  the  earlier  conformity  laws. 12 
An  invalid  State  law  cannot  be  adopted. is  or  if  adopted,  at  least  has,  no 
force. !■*  Under  the  earlier  process  acts  the  court  refused  to  presume  the 
adoption  of  a  rule  of  court  respecting  the  State  practice.is  But  the  ten- 
dency to  a  stricter  conformity  in  all  matters  of  practice  has  been  so  much 
greater  since  the  act  of  1872  that  the  presumption  on  appeal  might  now  be 
that  existing  State  laws  of  execution  rather  than  those  of  1872  or  1873  have 
been  adopted  by  some  rule.is  It  was  laid  down  in  an  early  case  that  the 
court  has  no  power  by  rule  to  modify  or  alter  a  State  execution  law  and 
adopt  it  as  altered. is  There  must  therefore  be  exact  conformity,  either  to 
the  State  remedies  by  execution,  etc.,  existing  in  1872,  or  to  souie  more 
modern  substitute. 


6Fink  V.  O'Neil.  106  U.  S.  279,  27 
L.  ed.  196,  1  Sup.  Ct.  Rep.  825. 

TFink  V.  O'Neil.  100  U.  S.  272,  27 
L.  ed.  196,  1  Sup.  Ct.  Rep.  325;  see 
Naumburg  v.  Hyatt,  24  Fed.  905; 
Webb  V.  Havner.'  49  Fed.  605. 

sSee  ante'  §   799. 

iiLamaster  v.  Keeler,  123  U.  S. 
391.  31  L.  ed.  238,  8  Sup.  Ct.  Rep. 
197. 

12  Boyle  V.  Zaeharie,  6  Pet.  658,  8 
L.  ed.  532;  McCracken  v.  Havward, 
2  How.  61.5.  616,  11  L.  ed.  397* 

isMcCracken  v.  Havward,  2  How. 
615,  616.  11  L.  ed.  397. 


I'iBronson  v.  Kenzie,  1  How.  311, 
11  L.  ed.  143. 

isBovle  V.  Zaeharie,  6  Pet.  648,  8 
L.  ed.  532. 

1  SSee  Logan  v.  Goodwin,  104  Fed. 
490,  43  C.  C.  A.  658.  This  has  been 
said  as  to  amendatory  State  attach- 
ment laws:  See  ante,  §  905[f].  But 
compare  Lamaster  v.  Keeler,  123  U. 
S.  391,  31  L.  ed.  2.38,  8  Sup.  Ct.  Rep. 
197. 

isMcCracken  v.  Hayward,  2  How. 
608,  11  L.  ed.  397. 


883 


CHAPTER  25. 

PROCEDURE  IN  EQUITY  CAUSES  IN  GENERAL.— BILLS  IN  EQUITY. 

§  935.     The  test  of  Federal  equity  jurisdiction. 

;§  936.     Forms  and  modes  of  proceeding  in  equity. 

§  937.     Where  no  positive  rule  applies,  practice  of  English  high  court  of 

chancery  to  be  consulted. 
•:§  938.     Affirmation   equivalent   to   oath   required   by   equity   rules. 
;§  939.     Power  of  judge  at  chambers,  during  term  or  vacation,  as  to  orders 

etc. 
;,^  940.     Notice  of  motions,  rules  and  orders  by  entry  in  order  book,  serv- 
ice on  solicitor  or  party. 

When  court  may  abridge  time  for  notice  of  orders,  rules,  etc. 

What  motions  and  applications  deemed  grantable  of  course  by  clerk. 

Procedure    on    motions   and    orders    sought    during   term   and   not 
grantable  of  course. 

Bills  in   Equity. — The  introductory   part. 

— narrative  or  stating  part  and  prayer  for  relief. 

• — what  formal  parts  of  bill  may  be  omitted. 

— averment  as  to  nonjoinder  of  parties  out  of  jurisdiction. 

• — the  prayer  for  process. 

— the  signature  of  counsel  and  its  legal  effect. 

— interrogatories — form  of  statement. 

— interrogatories  must  be  numbered. 

— footnote  respecting  interrogatories  deemed  part  of  bill. 

Necessary  allegations  of  stockholder's  bill. 

Necessity  for  succinctness,  and  avoidance  of  impertinence  and  scan- 
dal. 

— timely  exception  to  impertinence  and  scandal. 

Amendment  of  bill  before  plea,  demurrer  or  answer. 

Amendment  after  plea  demurrer  or  answer  and  after  replication. 

Amendment    after    answer — special    replication    not    permissible. 

Permission  to  amend  lost  if  not  availed  of  by  the  next  rule  day. 

Bills  of  revivor  and  proceedings  thereon. 

Supplemental  bills  and  proceedings  thereon. 

Bills    of    supplement    and    revivor   need   not    repeat   allegations   of 
original. 

Cross   bills   for   discovery   and   for  relief. 

Creditors  bill  against  national  bank  stockholders. 

Limit  to  taxable  costs  on  bills  in  equity. 
8S6 


■'§ 

941. 

i§ 

942. 

s 

943 

§ 

944. 

§ 

945. 

§ 

94G. 

§ 

947. 

§ 

948. 

§ 

949 

§ 

950 

§ 

951. 

§ 

952 

§ 

953 

§ 

954. 

§ 

955 

§ 

956 

§ 

957 

§ 

958 

§ 

959 

§ 

960. 

§ 

961. 

§ 

9G2. 

§ 

963. 

§ 

964. 

§ 

965. 

rrocedure]        TEST    OF    FEDERAL    EQUITY    JURISDICTION.  §   935    [b] 

§  935.     The  test  of  Federal  equity  jurisdiction. 

Suits  in  equity  shall  not  be  sustained  in  either  of  the  courts  of 
the  United  States  in  any  case  where  a  plain,  adequate  and  com- 
plete remedy  may  be  had  at  la.wS^^'^^^ 

R.  S.  §  723,  U.  S.  Comp.  Stat.  1901,  p.  583. 

[a]  Meaning  and  construction  of  section  in  general. 

This  provision  was  originally  part  of  the  judiciary  act  of  17891  and  has 
Leen  continuously  in  force  ever  since.  The  seventh  amendment  guarantees 
a  right  of  jury  trial  in  common-law  eauses,2  and  various  enactments  of 
Congress,  passed  prior  to  its  adoption,  equally  require  the  trial  of  issues 
of  fact  by  a  jury  in  common-law  causess  unless  waived. *  That  amendment 
and  those  provisions  of  Congress  which  antedated  it, 5  together  with  the 
foregoing  prohibition  against  a  resort  to  equity  which  also  antedated  the 
amendment,  constitute  the  foundation  upon  which  rests  the  distinction  be- 
tween law  and  equity  so  consistently  maintained  by  Congress  in  its  sub- 
sequent legislation,  and  by  the  Federal  courts  in  the  uniform  current  of 
tlieir  divisions. 6  It  would  be  too  much  to  say,  howver,  that  the  amend- 
ment of  itself  forbids  a  formal  obliteration  of  the  distinction  between  law 
and  equity  as  found  in  the  procedure  of  many  States,  so  long  as  the  sub- 
stance of  the  right  of  jury  trial  was  preserved  for  cases  in  fact  of  a  com- 
inan-law  character.     But  Congress  has  not  seen  fit  so  to  legislate. 

[b]  The  section  merely  declaratory  but  obligatory. 

The  above  provision  is  in  fact  merely  declaratory  of  a  principle  which 
was  accepted  long  prior  to  its  enactment. 9  But  its  embodiment  in  a  positive 
statute,  mandatory  and  prohibitive  in  form.io  effectively  prevents  a  fritter- 
ing away  of  the  constitutional  right  by  judicial  enlargements  of  the  equity 
jurisdiction.  It  positively  preserves  the  right  of  jury  trial  by  compelling 
resort  to  the  common-law  side  of  the  court  in  all  cases  where  adequate 
remedy  can  be  had  at  law.n  If  such  remedy  exists,  a  defendant  cannot  be 
compelled  to  go  into  equity  where  the  right  to  a  jury  does  not  exist. 12 
The  section  is  obligatory.  i3     It  was  intended  to  emphasize  the  rule  which  it 

lAct  Sept.  24,  1789,  c.  20,  §  16,  1  1.55  U.  S.  323.  39  L.  ed.  172,  15  Sun. 

?=tat.  82.  Ct.  Rep.  129.  ' 

2Ante,  §  910.  loWehrman  v.  Conklin.   1.55  U.   S. 

sAnte,  §§  911-913.  323,  39  L.  ed.   167.  15  Sup.  Ct.  Rep. 

■•Ante.  §  914.  129. 

sThe  judiciary  act  with  these  vari-         iiSmith    v.   American   Xat.   Bank, 

■ous   provisions   was  passed  Sept.   24,  89  Fed.  832,  32  C.  C.  A.  368. 
17S9.      The   seventh    amendment   was         i2Hipp  v.   Babin,   19  How.  271,  15 

submitted    for    ratification    Sept.    25,  L.  ed.  633:   Insurance  Co.  v.   Bailev. 

^89.  13  Wall.  621.  20  L.  ed.  .501:    Le.vis  v. 

6See  Ante,  §  800.  Cocks,   23   Wall.   466.   23    L.   ed.   70: 

9Boyce  v.  Grundy,  3  Pet.  215,  7  L.  Fussell  v.  Gregg.  113  T'.  S.  550.  28  L. 

•ed.  6.55;   Root  v.  Railroad,  105  U.  S.  od.  993,  5  Sup.  Ct.  Rpp.  631. 
•?n6.   26   L.   ed.   975:    Scott   v.    'N'eelv,         isWehrman  v.   Conklin.   155  V.   S. 

1   0  r.  S.  1!0,  35  L.  ed.  .358,  11  Sup.  323.  39  L.  ed.  167,   15  Sup.  Ct.  Rep. 

<t.   Kcp.   712;   Wehrman  v.  Conklin.  129. 

887 


§   1)33   [cj  I'KOCEDURE    IN    EQUITY    CAUSES.  [Code  Fed. 

asserts  and  impress  it  upon  the  attention  of  the  Federal  courts. i*  It  pre- 
vents any  enlargement  of  the  jurisdiction  of  courts  of  equity  which  would 
uive  them  cognizance  of  purely  legal  causes  of  action  in  which  the  right  to 
a  jury  constitutionally  exists.  Hence  the  rule  that  a  State  statute  which 
gives  a  right  to  go  into  equity  cannot  be  applied  in  the  Federal  courts  if 
by  their  standard  and  adequate  remedy  at  law  exists  is 

[c]  —  and  not  restrictive  —  concurrent  jurisdiction. 

But  it  seems  equally  plain  that  it  was  not  intended  to  restrict  the  eijuity 
jurisdiction  to  narrower  limits  than  were  recognized  at  the  time  the  law 
was  enacted. 1  If  it  was  merely  declaratory,  designed  to  perpetuate  exist- 
ing boundaries  between  law  and  equity,  then  clearly  it  did  not  extend  the 
absolute  right  of  jury  trial  to  cases  in  which  it  did  not  then  exist.  It  was 
not  intended  to  prohibit  the  exercise  by  equity  courts  of  a  concurrent  juris- 
diction with  courts  of  law  in  cases  where  such  concurrent  jurisdiction  had 
been  previously  upheld. 2  It  does  not  exclude  the  Federal  courts  of  equity 
from  any  part  of  the  field  of  equitable  remedies. 3  If  a  case  belongs  to  a 
class  in  which  equity  has  long  exercised  a  well  defined  concurrent  jurisdic- 
tion, the  existence  of  a  legal  remedy  will  not  oust  that  jurisdiction;*  nor 
will  the  creation  of  an  adequate  legal  remedy  by  State  laws,  although  their 
practical  effect  may  be  to  render  the  eqiiity  remedy  obsolete.5  The  con- 
current equity  jurisdiction  generally  rests  upon  the  inadequacy  of  legal 
remedy, 6  so  that  the  exercise  of  this  concurrent  jurisdiction  by  Federal 
equity  courts  is  not  a  violation  of  R.  S.  §  723,  either  in  letter  or  spirit. 
Some  cases  have  gone  the  extent  of  declaring  that  the  test  respecting 
adequate  legal  remedy  may  be  ignored  in  cases  of  concurrent  jurisdiction; 7 
but  it  seems  the  better  rule  to  regard  it  as  controlling  in  all  cases.s 

i^Neiw   York    G.    Co.   v.   ^Memphis,  Fed.  Cas.  No.  5.535:  Smvthe  v.  Hen- 

etc.  Co.  107  U.  S.  215.  27  L.  ed.  484,  ry.  41   Fed.  715. 

488,  2  Sup.  Ct.  Rep.  279;    White  v.        sSee  Pittsburgh,  etc.  R.  R.  v.  Keo- 

Boyce.  21  Fed.  228.  kuk  Co.  68  Fed.  22.  15  C.  C.  A.  184; 

i^Whitehead    v.    Shattuck.    138   U.  Grand  Rapids,  etc.  R.  R.  v.  Sparrow, 

S.  150.  34  L.  ed.  874.  11  Sup.  Ct.  Rep.  36  Fed.  211,  1  L.R.A.  480;  Gordon  v. 

276;    Whitehead     v.     Entwhistle.    27  Hobart,  2   Sumn.  401.  Fed.  Cas.  No. 

Fed.  778;    Smythe  v.  Henry,  41    Fed.  5.609;    Dodge    v.    Woolsey,    18    How. 

715;   Gordan  v.  Jackson,  72  Fed.  89.  331,  15  L.  ed.  407;  Cropper  v.  Coburn, 

iWehrman   v.    C<3nklin,    155   U.   S.  2    Curt.    465,    Fed.    Cas.    No.    3.416; 

323.  39  L.  ed.  172,  15  Sup.  Ct.  Rep.  Frazer  v.  Colorado  D.  &  S.  Co.  5  Fed. 

129;    Harrison    v.    Rowan,    4    Wash.  164;    Pokegama  Co.  v.   Klamath  Co. 

202,    Fed.    Cas.    No.    6,143;    Bean    v.  96  Fed.  5.5^  56. 

Smith,  2  Mason,  252,   Fed.  Cas.  No.        ePomeroy  Eq.  Jur.  §  173;  Boyce  v. 

1.174.  Grundy,    3'  Pet.    215,    7    L.    ed."  655; 

2Pratt    v.    Northam,    5  Mason,  95,  Harrison    v.     Rowan.  4    W'ash.    202, 

Fed.  Cas.  No.   11,376,  per     Storv.  J.;  Fed.  Cas.  No.  6.143;  Spring  v.  Dom. 

Wehrman  v.   Conklin,  155  U.  S.  323,  S.  M.  Co.  13  Fed.  449. 
39  L.  ed.  172,  15  Sup.  Ct.  Rep.  129.  "See    Cox   v.    Wall.    99    Fed.    549; 

3Bunce   v.    Gallagher.     5    Blatchf.  Smythe  v.  Henrv.  41  Fed.  715. 
481.    Fed.    Cas.    No.    2.133;     Dow    v.        HJindrat  v.  Dane,  4  Cliff.  260,  Fed. 

Berry,  18  Fed.  125.  (as.  No.  5,455. 

4Goodenow  v.  Milliken,  1  Hask.  .348. 

888 


Procedure]         TEST    OF    FEDI^KAL    EQUITY    JURISDICTION. 


S  0;J5  [e] 


[d]  Dismissal  sua  sponte  because  legal  remedy  adequate  —  waiver. 
Objection  that  there  is  adequate  remedy  at  Uwv  is  jurisdictional  and  re- 
quires dismissal  of  a  bill  even  though  the  parties  fail  to  raise  the  ques- 
tion.12  It  is  the  court's  duty  to  notice  the  objection  sua  sponte. 1 3  if  the 
case  proceeds  to  final  determination  in  the  trial  court  without  objection 
raised  or  noticed,  the  appellate  court  will  entertain  the  objection  if  then 
raised  where  the  case  is  plainly  not  of  equity  cognizance;  1 4  but  if  the  gen- 
eral subject  matter  belong  to  that  class  over  which  equity  has  jurisdiction, 
the  court  in  its  discretion  may  decline  to  do  so.i5  It  is  apparent  therefore 
tliat  right  to  raise  the  objection  may  be  lost,  and  hence  that  it  may  be 
waived  by  failure  to  object  in  due  time.is  So  where  the  bill  clearly  shows 
that  it  is  competent  for  the  court  to  grant  relief  the  objection  that  there 
is  an  adequate  remedy  at  law  must  be  taken  by  plea  demurrer  or  answer 
at  the  earliest  opportunity,  and  if  not  so  taken  will  be  considered  waived.i^ 

[e]  Plain,  adequate  and  complete  legal  remedy. 

There  must  not  only  be  a  remedy  at  law,  but  it  must  also  be  plain  and 
adequate  and  as  practical  and  efficient  to  the  ends  of  justice  as  the  remedy 
in  equity. 1  If  it  be  doubtful, 2  or  less  efficient  and  prompt,3  or  less  com- 
plete  and  adequate'*   equity  will  not  decline  cognizance   of  the   suit.     In- 


i2Graves  v.  Boston  ^I.  Ins.  Co.  2 
Cranch.  410,  2  L.  ed.  324;  Hepburn  v. 
Dunlop  1  \Yheat,  197.  4  L.  ed.  65; 
Carpenter  v.  Provident  Ins.  Co.  4 
How.  224.  II  L.  ed.  931:  Buzard  v. 
Houston.  119  U.  S.  .3.51.  .30  L.  ed.  451, 
7  Sup.  Ct.  Rep.  249;  Arkansas  Bldg. 
Assn.  v.  Madden.  175  U.  S.  273,  44 
L.  ed.   159.  20  Sup.  Ct.  Rep.  119. 

isOelrichs  v.  Spain.  15  Wall.  211, 
21  L.  ed.  43;  Hipp  v.  Babin.  19  How. 
278,  15  L.  ed.  6.33:  Lewis  v.  Cocks, 
23  Wall.  470,  471,  23  L.  ed.  70:  Sulli- 
van V.  Portland,  etc.  R.  R.  94  U.  S. 
SOG,  24  L.  ed.  324:  White  v.  Boyce, 
21  Fed.  2.32;  Kane  v.  Luckman. 'l31 
Fed.  62]. 

1 4 Thompson  v.  Central  O.  R.  R.  6 
Wall.  134,  137,  18  L.  ed.  765.  767; 
Tvlor  v.  Savage,  143  U.  S.  79,  36  L. 
ed.  89.  12  Sup.  Ct.  Rep.  340;  Parkers- 
burg  v.  Brown.  106  U.  S.  .500.  27  L. 
ed.  23S,  1   Sup.  Ct.  Rep.  442. 

]5Bevnps  v.  Dumoiit,  130  U.  S.  354, 
.395.  32 'L.  ed.  934.  945.  9  Sup.  Ct.  Rep. 
'ISC:  Kilbourn  v.  Sunderland.  130  U. 
S.  .-)05.  514.  32  L.  ed.  1008.  9  Sup.  Ct. 
Rep.  594:  Brown  v.  Lake  Co.  134  U. 
S.  535.  536,  33  L.  ed.  1024,  1025,  10 
Sup.  Ct.  Rep.  604:  Allen  v.  Pullman's 
P.  C.  Co.  139  r.  S.  65>!.  662,  35  L.  ed. 
305,  11  Sup.  Ct.  Rep.  682:  Tvlor  v. 
Savage,   143   U.   S.  79,  36  L.   ed.   89. 


12  Sup.  Ct.  Rep.  340:  Scott  v.  Arm- 
strong, 146  U.  S.  499,  36  L.  ed.  1059, 

13  Sup.  Ct.  Rep.  148:  Lone  J.  M.  Co. 
V.  Megginson.  82  Fed.  89,  27  C.  C. 
A.  63. 

leCecil  Nat.  Bank  v.  Thurbor.  59 
Fed.  913.  8  C.  C.  A.  365;  see  also 
Waite  V.'  O'Xeil,  72  Fed.  348;  Levi 
V.  Evans,  57  Fed.  677.  6  C.  C.  A.  500; 
Book  V.  Justice  M.  Co.  58  Fed.  827: 
Knight  V.  Fisher,  58  Fed.  991. 

1  "Southern  Pac.  R.  Co.  v.  United 
States.  133  Fed.  651,  66  C.  C.  A.  581. 

iBovce  V.  Grundv.  3  Pet.  215.  7 
L.  ed."655;  Lewis  v'.  Cocks,  23  Wall. 
470.  23  L.  ed.  70:  Watson  v.  Sutlier- 
land.  5  Wall.  78.  IS  L.  ed.  580:  Allen 
V.  Hanks,  1.30  U.  S.  311,  34  L.  od. 
414,  10  Sun.  Ct.  Rep.  961:  Walla 
Walla  V.  Walla  Walla  Water  Co.  172 
r.  S.  12.  43  L.  ed.  341,  19  Sup.  Ct. 
Rep.  77  :  3IcMullen  L.  Co.  v.  Strother, 
136  Fed.  .305.  69  C.  C.  A.  433. 

2 Davis  V.  Wakelee,  156  U.  S.  688, 
39  L.  ed.  578.  15  Sup.  Ct.  Rep.  555; 
Wienver  v.  Louisville  W.  Co.  130  Fed. 
246. 

3Rich  V.  Braxton,  158  V.  S.  406.  .39 
L.  ed.  1022.  15  Sup.  Ct.  Rp.  1006; 
Mutual  L.  Ins.  Co.  v.  Blair.  130  Fed. 
971. 

4Wylie  v.  Coxe.  15  How.  420,  14 
L.   ed".   753;    Whitehead   v.   Sliattuck, 


889 


<§   935   [f]  PROCEDURE   IX   EQUITY    CAUSES.  [Co:le   FeJ. 

adequacy  of  legal  remedy  refers  to  the  character  of  the  remedy  itself  as 
adopted  to  the  end  in  view  and  not  to  its  practical  effect. 5  It  is  not  ren- 
dered inadequate  in  contemplation  of  law,  by  the  fact  that  it  fails  to  pro- 
duce the  money.6  The  want  of  adequate  legal  remedy  must  affirmatively 
Appear.  Certain  general  principles  ha^  e  been  derived  in  the  practical  appli- 
cation of  this  rule.  Actions  merely  to  obtain  a  decree  for  the  payment  of 
money,  7  and  actions  simply  for  the  recovery  and  possession  of  specific  real 
•or  personal  property^  must  be  maintained  in  Federal  courts  upon  the  law 
side,  even  though  there  be  allegations  of  fraud,  concealment  and  the  like.9 
Ejectment  is  an  adequate  remedy  for  recovering  possession  of  real  property 
■a.nd  claimant  having  a  legal  title  cannot  go  into  equity. lO  A  recent  case 
holds  that  the  fact  that  State  courts  can  vacate  judgments  in  ejectment 
at  laAv  does  not  mean  that  Federal  courts  can,  and  intimates  that  re- 
sort to  equity  is  necessary. n 

[f]     Adequacy  of  remedy  "at  law"  is  tested  by  common  law. 

The  adequacy  of  remedy  '"at  law"  which  will  forbid  resort  to  equity  in 
the  Federal  courts  under  this  section  has  reference  to  the  common  law  as 
it  existed  at  the  time  of  the  judiciary  act,i5  unless  subsequently  changed 
by  act  of  Congress. 1 6  Any  other  rule  would  have  made  the  equity  juris- 
diction one  thing  in  one  State  and  something  else  in  another,  depending  upon 
the  local  legislation.!" 

138  U.  S.  151,  34  L.  ed.  873,  11  Sup.  8^^^litehead  v.  Sliattuck.  138  U.  S. 

€t.    Rep.    276:     Spokane    M.    Co.    v.  151,  34  L.  ed.  874.  11   Sup.  Ct.  Rep. 

Post,  .oO  Fed.  431 ;  Smith  v.  American  276:    Scott  v.   Xeelv.   140   U.   S.   100. 

Nat.  Bank.  89  Fed.  840,  32  C.  C.  A.  35  L.  ed.  358,   11   Sup.  Ct.  Rep.  712. 

368.  9See  Ambler  v.  Choteau.  107  U.  S. 

5Thompson  v.  Allen  Co.  115  U.  S.  500,   27   L.   ed.   322,   1   Sup.  Ct.   Rep. 

554,   2n   L.  ed.   472,  6   Sup.   Ct.  Rep.  556. 

140:  Burdon,  etc.  Co.  v.  Leverich,  37  lOSee  Gait  v.  Gallowav.  4  Pet.  339. 

Fed.  OS;   Safe  D.  Co.  v.  Anniston,  96  7  L.  ed.  876;  Lewis  v  Cocks.  23  Wall. 

Fed.  603.  469,  23  L.  ed  70:   Ellis  v.  Davis,  109 

eThompson  v.  Allen  Co.  115  U.  S.  U.  S.  503,  27  L.  ed.  1006.  3  Sup.  Ct. 

554,  29  L.  ed.   472,  6   Sup.   Ct.  Rep.  Rep.  327;  Killian  v.  Ebbing^liaus,  110 

140:   O'Brien    v.    Wheelock.   78   Fed.  U.  S.  573,  28  L.  ed.  246,  4  Sup.  Ct. 

679 :  Van  Wvck  v.  Knevals.  106  U.  S.  Rep.    232;     Arrowsmith    v.    Gleason. 

t^OO,   27   L.  ed.  201,   1   Sup.   Ct.  Rep.  129  U.   S.  97,  32  L.  ed.  630,  9   Sup. 

336;   Southern  Pac.  Co.  v.  Goodrich,  Ct.  Rep.  237. 

57  Fed.  882.  nKing  v.  Davis.  137  Fed.  198. 

TParkersburg  v.  Brown.   106  U.  S.  isMcConihav  v.  Wright.  121  U.  S. 

500.   27   L.  ed.   244,   1    Sup.   Ct.   Rep.  201,   30  L.  ed.'  932,   7   Sup.  Ct.  Rep. 

442;    Ambler   v.   Choteau,    107    U.    S.  940;   Cropper  v.  Coburn,  2  Curt.  405, 

586,   27   L.   ed.    322,   323,   1   Sup.    Ct.  Fed.  Cas.  No.  3,416. 

Rep.      550:      Litchfield     v.      Ballou,  icGrand  R.  Co.  v.  Sparrow.  36  Fed. 

114    U.    S.    190,    29    L.    ed.    132.    5  211,  1  L.R.A.  480;  Pokegama,  etc.  Co. 

•Sup.  Ct.  Rep.  820;   Buzard  v.  Hous-  v.  Klamath  C-o.  96  Fed^  55,  50;  Peck 

ton,   119  U.  S.  352.  30  L.  ed.  454,  7  v.   Avers,   110  Fed.  275.  53  C.  C.  A. 

Sup.    Ct.    Rep.     249;     Whitehead    v.  551.  ' 

f'hattuck,    138   U.    S.    151,    34    L.    ed.  inMissouri  K.  &  T.  R.  R.  v.  Elliott, 

874.    11    Sup.   Ct.   Rep.   276:    Mills  v.  56  Fed.  773. 
Knapp,    39    Fed.    .592;    Frev    v.    Wil- 
loughbv,  63  Fed.  865,  11  C.'C.  A.  463. 

890 


Trocediire]  FORMS    AND    MODES    OF    PROCEEDING.  §  9o« 

[g] — hence  Federal  equity  jurisdiction  is  uniform,  not  subject  to  enlarge- 
ment or  restriction  by  State  or  English  practice. 
Several  important  consequences  follow  from  this  principle  that  adequacy 
•of  remedy  at  law  is  tested  hy  the  common  law.  Since  that  test  or  stand- 
ard of  measurement  is  the  same  in  all  States,  it  follows  that  Federal  equity 
jurisdiction  is  everywhere  uniform,  regardless  of  State  legislation. i  It  also 
follows  that  the  equity  jurisdiction  is  of  the  same  scope  as  that  exercised 
by  English  courts  of  chancery  at  the  time  of  the  judiciary  act,2  and  is  un- 
affected by  later  changes  in  the  English  practice.3  It  further  follows  that 
the  creation  of  new  legal  remedies  by  State  laws,  though  available  in  the 
Federal  courts  at  law  by  virtue  of  the  conformity  laws,*  and  though  in  fact 
adequate,  will  not  oust  the  jurisdiction  of  Federal  courts  on  their  equity 
side  to  administer  the  older  equitable  remedy. 5  The  Federal  suitor  may 
thus  sometimes  have  the  option  of  a  remedy  at  law  taken  from  the  State 
courts,  and  a  remedy  in  equity  no  longer  there  available.  In  an  early  chap- 
ter of  this  work  the  principle  that  the  States  are  without  power  to  regu- 
late the  procedure  or  jurisdiction  of  Federal  covirts,  was  discusssed  and  its 
bearing  upon  the  equity  jurisdiction  was  shown.s  The  doctrine  that  the 
Federal  courts  will  administer  an  enlargement  of  equitable  rights  created 
by  State  legislation  is  not  really  an  exception  to  the  rule  that  the  States 
may  not  enlarge  the  equity  jurisdiction  of  Federal  courts."  Since  the  en- 
actment of  R.  S.  §§  SG9  and  72 1  allowing  either  party  to  call  the  other  as 
a  witness  at  law  and  requiring  the  production  of  books  and  papers,  the 
question  arises  as  to  whether  a  pure  bill  of  discovery  will  lie.  In  the  face 
of  the  above-mentioned  enactments  such  a  bill  has  to  a  great  extent  be- 
come obsolete.^  and  it  is  held  that  it  cannot  be  maintained  where  the  claim 
is  legal  and  such  bill  is  the  only  ground  of  equitable  relief. 9  But  a  recent 
case  has  held  it  maintainable  notwithstanding  State  and  Federal  statutes 
rendering  it  unnecessary.!  0 

§  936,     Forms  and  modes  of  proceeding  in  equity. 

The  forms  of  mesne  process  and  the  forms  and  modes  of  pro- 

iSee  ante.  §  5:  see  also  Gordon  v.  How.  331,  15  L.  ed.  407;   Cropper  v. 

Tlobart.  2  Sumn.  401.  Fed.  Cas.  No.  Coburn.   2   Curt.   465,   Fed.   Cas.   Xo. 

.i.OOO.  and  Pratt  v.  Xortham.  5  Mason,  3.416:   Frazer  v.  Colorado  Co.  5  Fed. 

05.   Fed.  Cas.  No.   11,376.  per   Story,  164.  2  McCrarv.   11. 

•T.:   Robinson  v.   Campbell,  3  Wheat.  eAnte,   §   [5], 

222.  4  L.  ed.  375.  7See  ante.  §  5[   1.  §   10[aal.  §  800. 

2See  i;nte.  §  5[   ]  sSee  Safiord  v.  Ensign,  etc.  Co.  120 

sBaker  v.  Biddle,  Bladw.  394,  Fed.  Fed.  480.  56   C.  C.   A.  630 ;    Field  v. 

Cas.  Xo.  764.  Hastings.  05  Fed.  279:  Brown  v.  M'- 

4See  ante.  §§  900.  905.  925.  DonakL  130  Fed.  965,  and  cases  cited. 

sKimball  v.  ^Mobile.  3  Woods.  555.  sUnited    States  v.   Bitter,   etc.   Co. 

Fed.  Cas.  Xo.  7.774;   Pokegama.  etc.  1.33  Fed.  274,  66  C.  C.  A.  652:  Brown 

Co.  v.  Klamath,  etc.  Co.  96   Fed.  55,  v.   AFDonald.   130  Fed.   964:    London. 

56:  Crand  R.  Co.  v.  Sparrow.  36  Fed.  etc.  Co.   v.   Dovle,    130  Fed.  719. 

211:    Pitt^bnrsh.   etc.   R.  R.    v.   Keo-  lOMc^NIuIlen  L.  Co.  v.  Strother,  l.-^H 

kuk.    6S   Fed.'  22,    15   C.   C.    A.    1S4;  Fed.   301.  69  C.   C.  A.  433;   see  also 

r,ir(l()ii  V.  TTobiirt.  2  Sumn.  401.  Fed.  post,  §  950,  note. 
■Cas.  Xo.  5.609;  Dndu'c  v.  Woolsev.  IS 

891 


I 


S  937  PROCEDURE   IN    EQUITY   CAUSES.  [Code  Fed. 

ceeding  in  suits  of  equity  .  .  .  jurisdiction  iii  the  circuit  and 
district  courts  shall  be  according  to  the  princjples,  rules,  and  u.-^ages 
which  belong  to  courts  of  equity  .  .  .  except  when  it  is  otlier- 
wise  provided  by  statute  or  by  rules  of  court  made  in  pursuance 
thereof;  but  the  same  shall  be  subject  to  alteration  and  addition  hy 
the  said  courts,  respectively,  and  to  regulation  by  the  Supreme 
Court,  by  rules  prescribed,  from  time  to  time  to  any  circuit  or  dis- 
trict court,  not  inconsistent  with  the  laws  of  the  United  States. 
R.  S.  §  913,  U.  S.  Comp.  Stat.  ]!)01,  p.  683. 

This  provision  was  originally  enacted  in  1789.15  It  also  spocifies  similarly 
as  to  admiralty  practice. is  This  section  is  to  be  read  in  connection  vvitli 
R.  S.  §  917,1'  whicli  gives  the  Supreme  Court  very  broad  powers  to  regulate 
Federal  e(|uity  procedure,  and  R.  S.  §  918,18  which  gives  l»he  circuit  and  dis- 
trict courts  power  to  regulate  their  practice  by  rules.  This  section  is  there- 
fore residuary  in  character  and  only  applicable  in  the  alisence  of  specilie 
statute  or  rule  of  the  Supreme  Court  or  of  the  trial  court. 1 3  The  equity 
practice  is  so  comprehensively  covered  by  rules  of  court  that  it  is  spUIomi 
controlling.  The  rules  of  the  high  court  of  chancery  in  England  are 
recognized  as  "the  common  law  of  chancery"  and  an  authoritative  exposi- 
tion of  the  "principles,  rules  and  usages  which  belong  to  courts  of  equity" 
within  this  section. i  The  Supreme  Court  has  expressly  declared  in  the 
!*Oth  equity  rule  that  in  other  matters  than  those  covered  by  the  Federal 
equity  rules,  the  practice  shall  be  according  to  that  of  the  high  court  of 
chancery  in  England; 2  and  itself  follows  that  practice  with  necessary  modi- 
fications in  the  exercise  of  its  original  equity  jurisdiction. 3 

§  937.     "Where  no  positive  rule  applies,  practice  of  English  high 
court  of  chancery  to  be  consulted. 
In  all  cases  where  the  rules  prescribed  by  this  court  or  by  the 
circuit  court  do  not  apply,  the  practice  of  the  circuit  court  shall  be 
regulated  by  the  present  practice  of  the  High  Court  of  Chancery 
in  England, '^''^  so  far  as  the  same  may  reasonably  be  applied  con- 
is  Act  Sept,  29.  17S9.  c.  21.  §  2.  1    Wheeling,   etc.   Co.  13   How.   .i()3.   14 
Stat.  43:   see  act  Mav  8.  1792.  c.  36.    L.  e<l.  268:   Richmond  v.  Atwond.  52 
§  2.  1  Stat.  276:  act  Mav  19.  1828.  c.    Fed.  25,  2  C.  C.  A.  .396,  17  L.R.A.  615; 
fi8.  §  1.  4  Stat.  278;  act  Aug.  1,  1842,    Taylor   v.   Clark.   89   Fed.   7:    David- 
c.  109.  5  Stat.  499.  son  v.  Calkins.  92  Fed.  233:  Alger  v. 

leSee  post,  §  1195.  Anderson.    92    Fed.    69'6:    Shuford   v. 

I'Ante.   S  802.  Cain.   1    Abb.  305.  Fed.   Cas.  Xo.   12.- 

isAnte.  ^  805.  823:  I'nited  States  v.  Parrott.  1  Mc- 

i9See  Storv  v.  Livington.  13  Pet.  All.  287.  289.  Fed.  Cas.  No.  1.5.998: 
359.  10  L.  ed.'  200.  Breed?n  v.  Lee.  2  Hughes.  488.   Fed. 

iVattier  v.  Hinde.  7  Pet.  274.  8  L.    Cas.  No.  1,828;  Ball  v.  Tompkins,  41 
-d.  684:  Bovle  v.  Zacharie,  6  Pet.  648.    Fed.  489. 
•^  L.  ed.  532:  Bein  v.  Heath.  12  How.         2See  post.  §  937. 
178.  13  L.  ed.  944;   Pennnsylvania  v.         sSee  ante,  §  35. 

892 


riocodure]  ENGLTSn    PRACTICE    FOLLOWED.  §   037    [bl 

sistently  with  the  local  circumstances  and  local  conveniences  of  the 
district  where  the  court  is  held,  not  as  positive  rules,  but  as  fur- 
nishing just  analogies  to  regulate  the  practiceJ^^ 
99th  equity   rule,  adopted  March   1842,  16   Pet.  Ixi. 

£a]     In  general. 

The  earlier  equity  rules  of  1822  provided  that  "in  all  cases  where  the 
rules  prescribed  by  this  court,  or  by  the  circuit  court,  do  not  apply;  the 
practice  of  the  circuit  courts  shall  be  regulated  by  the  practice  of  the  high 
court  of  chancery  in  England."'"  The  above  rule  therefore  changes  the 
earlier  provision  by  adopting  the  rules  as  of  a  certain  date  and  by  making 
the  English  practice  a  guide  rather  than  controlling  authority.  In  the 
exercise  of  that  discretion  the  circuit  court  has  refused  to  hold  that  a  hus- 
hand  must  join  in  a  wife's  suit  for  infringement.  8  This  rule  neither  en- 
larges nor  diminishes  the  juri.sdiction,  but  simply  regulates  the  practice.9 
It  is  the  English  chancery  practice  and  not  the  practice  of  the  courts  of 
exchequer,! 0  nor  of  the  individual   StatesH  that  is  the  guide. 

[b]     English  practice  of  1842  adopted — authoritative  evidence  thereof. 

As  this  rule  was  promulgated  in  March,  1842,  it  is  the  English  chancery 
practice  as  it  then  existed  that  was  adopted  for  the  circuit  court. 1 3  Au- 
thoritative exposition  of  the  English  practice  of  that  date  is  to  be  found  in 
the  first  edition  of  Daniel's  Chancery  Practice  and  the  second  edition  of 
Smith's  Practice,  both  published  in  I83G,  as  supplemented  and  modified  by 
the  general  orders  in  chancery,  made  by  Lords  Cottenham  and  Langdale  in' 
August,  1841.  Many  of  these  general  orders  are  in  fact  closely  copied  in 
the  equity  rules.  The  value  of  the  second  edition  of  Daniel  (1846)  as  evi- 
•dence  of  the  English  practice  which  the  Federal  courts  must  look  to  is  im- 
])aired  by  the  fact  that  it  reflects  the  extensive  changes  introduced  into 
English  practice  by  the  English  orders  of  May,  8,  1845,  and  the  third  and 
later  editions  by  the  still  more  radical  changes  introduced  by  the  gen- 
eral orders  of  April,  1850.K 

'Rule  32.  see  7  Wheat.  7,  5  L.  ed.  R.    Co.    2    Cliff.    351.    Fed.    Cas.    Xo. 

"377  ;  see  also  Bovle  V.  Zacharie,  6  Pet.  5,583;    Gri.swold    v.    Bragg.    48    Fed. 

(148.  8  L.  ed.  532;  Living-;ton  v.  Storv,  520;  Evory  v.  Candee,  17  Blatchf.  200, 

13  Pet.  368.  10  L.  ed.  205;  Gaines  v.  Fed.  Cas.  No.  4.583. 
Relf,  15  Pet.  16,  10  L.  ed.  642.  i4See     note     bv     Bradlev,     J.,     to 

sLorilland    v.    Standard    O.    Co.    2  Thompson  v.  Wooster,  114  U.  S.  112, 

1-Vd.  902,   18   Blatchf.   199.  29    L.  ed.   107.   5  Sup.   Ct.  Rep.   788; 

9 Lewis  V.   Shainwald,  48   Fed.  492.  Romaine  v.   Union    Ins.   Co.   28    Fed. 

loSniith  V.  Burnliam,  2  Sumn.  612.  632.    per     Hammond.    .1. ;     Partee    v. 

Fed.  Cas.  Xo.  13,018.  Thomas,    27    Fed.   4,30;    Richmond    v. 

iiCoodvear  v.  Prov.  R.  Co.  2  Cliff.  Atwood.  52  Fed.  25.  2  C.  C.  A.  596; 

.•.')!.     F(nf.     Cas.     Xo.    5.583;    United  Hazleton  Co.  v.  Citizens  Co.  72  Fed. 

States  V.  I'arrott.  1  McAll.  447.  Fed.  328;    Continental    Co.  v.  Toledo,   etc. 

Cas.  Xo.  15.999;  Martindale  v.  Waas.  R.   R.   82   Fed.   646;    Xational    Co.   v. 

11   Fed.  551.  3  McCrarv.  637.  Davton    Co.    91    Fed.    S25 ;    Deck    v. 

isBadger   V.    Badger."    1    Cliff.    237,  Whitman,  96  Fed.  875. 
Fed.  Cas".  Xo.  717;  Goodyear  v.  Prov. 

893 


§   038  PKOCEDUUE    IN     EQUITY     CAUSES.  [Code  Fed: 

§  938.     Affirmation  equivalent  to  oath  required  by  equity  rules. 

Wlienever,  under  those  rules,  an  oath  is  or  nia}^  be  required  to 
be  taken,  the  part_y  ma}',  if  conscientiously  scrupulous  of  taking  an 
oath,  in  lieu  thereof  make  solemn  affirmation  to  the  truth  of  the 
facts  stated  by  him. 

91st  equity  rule. 

R.  8.  §  1,1  s  also  provides  that  "a  reqiiirenient  of  an  'oath'  shall  be  doonu'd 
complied  with  by  making  affirmation  in  judicial  form,"  and  the  Federal' 
Constitution  provides  for  "oiith  or  affirmation"'  in  several  sections. I'J  The 
earlier  cases  required  a  very  clear  showing  of  conscientious  scruples  against 
an  oath. 2  0 

§  939.  Power  of  judge  at  chambers,  during  term  or  vacation,  as 
to  orders  etc. 
Any  judge  of  the  circuit  court,  a.';  well  in  vacation  as  in  term, 
ma}',  at  chambers,  or  on  the  rule  days  at  the  clerk's  office,  make 
and  direct  all  such  interlocutory  orders,  rules  and  other  proceed- 
ings, preparatory  to  the  hearing  of  all  causes  upon  their  merits, 
in  the  same  manner  and  with  the  same  effect  as  the  circuit  court 
could  make  and  direct  the  same  in  term,  reasonable  notice  of  the 
application  therefor  being  first  given  to  the  adverse  party,  or  liis 
solicitor,  to  appear  and  show  cause  to  the  contrary  at  the  next  rule 
day  thereafter,  unless  some  other  time  is  assigned  by  the  judge  for 
the  hearing. 

3d  equity  rule. 

A  justice  of  the  Supreme  Court  and  a  district  judge  are  sometimes  given 
the  powers  and  may  perform  the  duties  of  the  circuit  judge. i  This  rule 
does  not  apply  so  as  to  require  formal  notice  of  application  for  interlocutory 
order  or  of  motion  made  during  term  and  in  the  presence  of  opposing  coun- 
sel.^ By  an  act  passed  August  2.3rd,  1842,3  a  few  months  after  the  adoption 
of  this  rule  it  was  provided  that  the  circuit  court  as  a  court  of  equity 
should  always  be  open  for  the  making  and  directing  of  rules,  orders,  etc., 
and  the  judge  was  empowered  to  make,  direct,  and  award,  process,  commis- 
sions, orders,  rules,  etc.*  That  provision  is  still  in  force  as  R.  S.  §  638  and 
the  foregoing  rule  is  therefore  merely  auxiliary  to  it. 

18U.  S.  Comp.  Stat.  1901.  p.  3.  1    Cranch   C.    C.    157,   Fed.   Cas.   No. 

i9See  Cons.  art.  I.,  §  3.  art.  11.,  §  8,824. 

1:   art.  VI.:   amend,  art.  IV.  lAnte.  §§  100-104. 

2oSee   King  v.    Fearson.   3    Cranch  2McLean  v.  Lafayette  Bank.  3  Mc- 

C.  C.  435.  Fed.  Cas.  No.  7.790:  Bank  L^-an.  503.  Fed.  Cas.  No.  8,887. 

of  Col.  V.  Wright.  3  Cranch  C.  C.  216,  3C.  188.  §  5.  5  Stat.  517. 

Fe{l.  Cas.  No.  883;  Mclntire's  Cases.  4See  ante,  §  365. 

894 


• 


Procedure]  NOTICES  OF  MOTIONS,  ETC.  §  9-41 

§  940.  Notice  of  motions,  rules  and  orders  by  entry  in  order 
book,  service  on  solicitor  or  party. 
All  motions,  niles^  orders  and  other  proceedings  made  and  di- 
rected at  chambers,  or  on  rule  days  at  the  clerk's  office,  whether 
special  or  of  course,  shall  be  entered  by  the  clerk  in  an  order  book, 
to  be  kept  at  the  clerk's  office,  on  the  day  when  they  are  made  and 
directed;  which  book  shall  be  open  at  all  office  hours  to  the  free 
inspection  of  the  parties  in  any  suit  in  equity,  and  their  solicitor  . 
And,  except  in  ca.ses  where  personal  or  other  notice  is  specially 
required  or  directed,  such  entry  in  the  order  book  shall  be  deemed 
sufficient  notice  to  the  parties  and  their  solicitors,  without  further 
service  thereof,  of  all  orders,  rules,  acts,  notices  and  other  proceed- 
ings entered  in  such  order  book,  touching  any  and  all  the  matters 
in  the  suits  to  and  in  which  they  are  parties  and  solicitors.  And 
notice  to  the  solicitors  sliall  be  deemed  notice  to  the  parties  for 
whom  they  appear  and  whom  they  represent,  in  all  cases  where 
personal  notice  on  the  parties  is  not  otherwise  specially  required. 
Part  of  4th  equity  rule. 

The  remainder  of  the  rule  provides  for  abridging  the  length  of  notice  in 
certain  cases. 7  It  is  believed  that  the  noticing  of  such  rules,  motions  and 
orders  as  must  be  procured  from  the  court  or  judge,  rcerely  by  entry  in  thft 
order  book  has  practically  become  obsolete;  and  that  it  is  now  customary 
to  require  service  of  notice  upon  the  solicitor  of  the  opposite  party. 8  The 
order  book  is  a  relic  of  the  time  when  judges  and  lawyers  rode  upon  circuit 
and  it  was  necessary  to  provide  by  rule  that  the  clerk's  office  should  be  open 
and  the  clerk  in  attendance  on  the  first  Monday  of  every  month. 9  Objec- 
tion for  failure  to  make  enty  upon  the  order  book  is  sometimes  taken,  how- 
ever, for  purposes  of  delay. lo 

§  941.     When  court  may  abridge  time  for  notice  of  orders,  mles, 
etc. 

Where  the  solicitors  for  all  the  parties  in  a  suit  reside  in  or 
near  the  town  or  city,  the  judges  of  the  circuit  court  may,  by  rule, 
abridge  the  time  for  notice  of  rules,  orders,  or  other  proceedings 
not  requiring  personal  service  on  the  parties,  in  their  discretion. 
Part  of  4th  equity  rule. 
The  remainder  of  the  rule  prescribes  the  mode  of  giving  notice.! 2 

TPost.  §  941.  no    entry    for    seven  years,  and  rule 

sSee      Bennett      v.      Hopfncr,      17    day  was  not  observed. 
Blatchf.  .341.  Fed.  Cas.  No.  1..320;  see        sEquity  rule  2:  see  ante,  §  604. 
Electrolibration    Co.    v.  Jackson,  52        lOXewby  v.  Oregon  C.  Ry.  1  Sa\%y. 
Fed.  774,  where  order  book  had  had    63,  Fed.  Cas.  I>'o.  10,145. 

12 Ante,  §  940. 
895 


«  942  PROCEDURE   IN   EQUITY   CAUSES.  [Code  Fed. 

§  942.     What    motions    and    applications    deemed    grantable    of 
course  by  clerk. 

All  motions  and  applications  in  the  clerk's  office  for  the  issuing 
of  mesne  process  and  final  process  to  enforce  and  execute  decrees ; 
for  filing  bills,  answers,  pleas,  demurrers,  and  other  pleadings;  for 
making  amendments  to  bills  and  answers;  for  taking  bills  pro  con- 
fesso ;  for  filing  exceptions,  and  for  other  proceedings  in  the  clerk's 
office  which  do  not,  by  the  rules  hereinafter  prescribed,  requii-e  any 
allowance  or  order  of  the  court,  or  of  any  judge  thereof,  shall  be 
deemed  motions  and  applications  grantable  of  course  by  the  clerk 
of  the  court.  But  the  same  may  be  suspended,  or  altered,  or  re- 
scinded by  any  judge  of  the  court,  upon  special  cause  shown. 
5th  equity  rule. 

The  concluding  sentence  of  the  above  rule  conforms  to  a  decision  of  the 
Supreme  Court  previously  made.is  Reading  this  rule  in  connection  with 
rule  G  it  is  apparent  that  a  distinction  is  to  be  drawn  between  motions  and 
orders  which  require  allowance  by  the  judge  on  special  notice  to  the  ad- 
verse party,  and  those  grantable  of  course  under  this  rule.iT 

§  943.     Procedure   on   motions   and   orders   sought   during   term 
and  not  grantable  of  course. 

All  motions  for  rules  or  orders  and  other  proceedings,  which  are 
not  grantal)le  of  course,  or  without  notice,  shall,  unless  a  ditl'erent 
time  be  assigned  by  a  judge  of  the  court,  be  made  on  a  rule  day,  and 
entered  in  the  order  book,  and  shall  be  heard  at  the  rule  day  next 
after  that  on  which  the  motion  is  made.  And  if  the  adverse  party, 
or  his  solicitor,  shall  not  then  appear,  or  shall  not  show  good  cause 
against  the  same,  the  motion  may  be  heard  by  any  judge  of  the 
court  ex  parte,  and  granted,  as  if  not  objected  to,  or  refused  in  his 
discretion. 

6th  equity  rule. 

This  rule  differs  from  rule  5i9  in  that  it  concerns  motions  and  orders  not 
grantable  of  course;  and  from  rule  32  0  in  that  it  governs  the  procedure  as 
to  motions  and  orders  sought  during  the  term  and  not  the  power  of  the 
judge  in  vacation. 

§  944.     Bills  in  equity — the  introductory  part. 

Every  bill,^^^  in  the  introductory  part  thereof,  shall  contain  the 

i6See    Poultney    v.    Lafavette.    12        is  Ante,  §  942. 
Pet.  472,  9  L.  ed".  1162.         *  20 Ante,  §  939. 

17 United  States  v.  Parrott,  1  Mc- 
All.  447,  Fed.  Cas.  No.  15,999. 

896 


Procedure]  BILLS    IN    EQUITY.  §  944  [a] 

names,  places  of  abode,  and  citizenship  of  all  the  parties,  plaintiffs 
and  defendants,  by  and  against  whom  the  bill  is  brought.  Tlie 
form,  in  substance,  shall  be  as  follows :    "To  the  judges  of  the  cir- 

•cuit  court  of  the  United  States  for  the  district  of :  A.  B.,  of 

,  and  a  citizen  of  the  State  of ,  brings  this  his  bill  against 

C.  D.,  of  ,  and  a  citizen  of  the  State  of  ,  and  E.  F.,  of 

,  and  a  citizen  of  the  State  of .    And  thereupon  your  orator 

complains  and  says  that,"  etc.'^^^ 
20th  equity  rule. 

[a]     Bills  and  informations  in  general. 

The  authorities  upon  equity  pleading  lay  down  the  rule  that  the  original 
pleading  of  a  complainant  in  equity  is  a  bill,  in  the  form  of  a  petition,  in 
all  cases  where  complainant  is  a  private  party;  but  in  cases  of  suit  in- 
stituted on  behalf  of  the  government,  or  of  those  who  partake  of  its  preroga- 
tive (e.  g.  idiots  and  lunatics)  or  whose  rights  are  under  its  protection  (e. 
g.  public  charities)  the  matter  of  complaint  should  be  offered  to  the  court 
by  way  of  information  by  the  Attorney  General  or  solicitor  or  other  govern- 
ment officer;  and  that  such  a  pleading  is  called  an  information.  Where  the 
.■government  proceeds  upon  the  relation  of  some  person  (termed  the  relator) 
who  has  a  personal  interest  in  the  raatter  in  dispute,  these  authorities 
further  declare  that  the  pleading  is  properly  termed  an  information  and 
bill. 3 

But  Federal  practice  presents  but  few  instances  of  the  u?e  of  information* 
in  suit  by  the  government.  It  is  the  established  custom  for  the  officers  of 
the  government  to  proceed  by  ordinary  bill  in  equity  in  the  name  of  the 
United  States, 5  and  Congress  has  in  several  particular  instance?  directed 
the  filing  of  a  "bill  in  equity"  on  behalf  of  the  government, 6  or  the  institu- 
tion of  proceedings  in  equity  "by  way  of  petiton.'"?  It  is  settled  also  that 
while  the  Attorney  General  has  power  and  is  in  duty  bound  to  institute 
proper  suits  for  the  government,  such  suits  should  be  in  the  name  of  the 
United  States s  The  absence  of  any  provision  respecting  informations  in 
the  equity  rules  further  suggests  the  inapplicability  of  the  ancient  learn- 
ing upon  this  subject,  in  Federal  practice. 

sStorv  Eq.  Pleading,  §  7,  8:    Mitf.  American   B.   T.   Co.    128   U.   S.   315. 

Eq.   PI.' 22,  23,  99,   100;   Cooper   Eq.  32  L.  ed.  450,  9  Sup.  Ct.  Rep.  90;  for 

PI.   1.  injunction:      United  States  v.   Debs, 

4 Benton  v.   Woolsey,  12  Pet.  27,  9  63  Fed.  436. 
L.  ed.  987:  Attv.  Gen.  v.  Runiford  C.        sSee  United  States  v.  Union  P.  R. 

•\Vorks,  32  Fed.'  608.  R.  98  U.  S.  569,  25  L.  ed.  143. 

5E.  g.  suits  to  cancel  land  patents:  ^See  United  States  v.  Freight 
United  States  v.  Hughes,  11  How.  Assn.  166  U.  S.  291.  41  L.  ed.  1011, 
•552,  13  L.  ed.  809;  United  States  v.  17  Sup.  Ct  Rep.  540. 
Stone.  2  Wall.  525.  17  L.  ed.  765:  sSee  Attorney  General  v.  Rum- 
United  .jiates  v.  Throckmorton,  OS  U.  ford  C.  Works.  32  Fed.  608:  United 
S.  61,  25  L.  ed.  93:  to  cancel  patents  States  v.  San  Jacinto  T.  Co.  125  U. 
for    inventions:      I'nited     States     v.  S.  285,  31  L.  ed.  747,  8 Sup.  Ct. Rep.  850. 

Fed.  Proc— 57.  897 


§   944    [b] 


I'RO(  KDTHE    IX    EQUITY    CAUSES. 


[Code  Fed. 


[b]     The  form  of  the  introductory  part. 

A  bill  addressed  to  the  •'c-iicuit  court,"  etc.,  "in  chancery  sitting"  has 
been  held  sufficient.!!  The  introductory  part  of  the  bill  must  give  with 
certainty  the  names  of  all  the  parties. 12  No  party  can  be  made  defendant 
to  a  bill  save  by  name.i3  A  bill  "against  H.  H.  Day,  Thomas  J.  Andrews,  W. 
H.  Clark  and  one  hundred  and  fifty  other  pereons  of  whose  name  complain- 
ant is  ignorant,  and  who  are  designated  each  by  the  name  of  John  Doe.  and 
whose  true  names,  when  discovered,  complainant  asks  leave  to  insert,"  etc., 
has  been  held  insufficient  to  support  service  upon  or  jurisdiction  over  such 
unnamed  parties. 14  Where  the  court's  jurisdiction  depends  upon  diverse 
citizenship,  the  allegations  of  the  introductory  part  of  the  bill  become  of 
jurisdictional  importance.is  It  is  the  invariable  rule  of  Federal  pleading 
that  jurisdiction  must  affirmatively  appear.is  Under  the  later  Federal 
statutes  defining  the  jurisdiction  of  the  circuit  and  district  courts,  the 
allegations  as  to  residence  often  becomes  jurisdictionally  as  important  as 
the  allegation  of  citizenship  itself.i^  But  an  allegation  of  residence  without 
any  averment  of  citizenship  is  insufficient  to  support  jurisdiction.!  8  Where 
one  of  the  parties  is  a  corporation  the  bill  should  show  under  the  laws  of 
what  State  it  is  organized ;19  and  if  a  State  contains  more  than  one  district 
an  averment  of  the  corporate  "residence"  becomes  material. 20  if  one  party 
is  an  alien  he  should  be  designated  as  a  "citizen  and  subject  of  a  foreign 
vState,  to  wit,"  etc.  2  Defects  in  the  introductory  part  of  the  bill  cannot  be 
cured  by  reference  to  its  caption. 3 

Where  the  jurisdiction  of  a  bill  is  not  rested  upon  diverse  citizenship, 
failure  to  comply  with  the  requirements  of  the  above  rule  might  be  deemed 
mere  matter  of  form  and  disregarded  or  formally  amended,  but  if  juris- 
dictional the  omission  is  ground  for  demurrer;*  and  since  the  act  of  1875 
may  even  be  challenged  at  a  later  stage  of  the  proceedings. 5  A  bill  omitting 
proper  averments  of  citizenship  and  residence  in  the  introductory  part 
thereof  has  been  ordered  dismissed  with  costs  unless  proper  amendments 


iiSterrick  v.  Pugsley,  I  Flip.  350,  Hoiw.   2.32,    2,3.3,    15    L.    ed.    896;    St. 

Fed.  Cas.  No.  13,379.  Louis,  etc.   Ry.  v.  James,   161   U.  S. 

i2Barth  v.  MaKeever,  4  Biss.  206,  562,  40  L,  ed.  802,  16  Sup.  Ct.  Rep. 

Fed.  Cas.  No.  1,009.  621.     Its   members  are  then  conclu- 

i3Ex  parte  Richards,  117  Fed.  658.  sively  presumed  to  be  citizens  of  that 

i4Kentncky    S.   M.    Co.  v.   Day,   2  State;  See  ante,  §  2[t]. 
Sawy.  468,  Fed.  Cas.  No.  7,719.  2  0See  Harvey  v.  Richmond,  etc.  Ry. 

!5"See  Wright  v.  Skinner,  136  Fed.  64   Fed,    21;    Galveston,   etc.    Ry.   v. 

694,  holding  allegation  of  citizenship  Gonzales,    151    U.    S.   504,    38    L.   ed. 

necessary  only  when  jurisdiction  de-  248.  14  Sup.  Ct.  Rep.  401. 
pends  thereon.  2Wilson  v.  City  Bank,  3  Sumn.  422, 

16 Ante.  §  9.  Fed.  Cas.  No.   17,797;    see  Stuart  v. 

i^Harvey  v,  Richmond,  etc.  Ry.  64  Easton,   156  U.  S.  47,  39  L.  ed.  341, 

Fed.  21;  see  ante,  §§  131,  402.  15  Sup.  Ct.  Rep.  268. 

isWolfe  v.  Hartford  L.  I.  Co.  148        3 Jackson  v.  Ashton,  8  Pet.  149,  8 

U,  S.  389,  37  L.  ed.  493,  13  Sup.  Ct.  L.  ed.  898. 

Rep.   602;   Cooper  v.   Newell,   155  U.        ^See  Harvey  v.  Richmond,  etc.  Ry. 

S.  533.  39  L.  ed.  249,  1,5  Sup.  Ct.  Rep.  64  Fed.  21. 
355;    See  ante,   i;    9[d].  sAnte,  §  818. 

19 Covington  D.  Co.  v.  Shepherd,  20 

898 


Procedure]  NARRATIVE  OR  STATING  PART  OF  BILL.  §   945   [al 

were  filed. 6     Such  omission  is  held  to  be  corrected  by  motion  and  not  by 
demurrer.'? 

§  945.  —  narrative  or  stating  part  and  prayer  for  relief. 

The  plaintiff  may,  in  the  narrative  or  stating  part  of  his  bill, 
state  and  avoid,  by  counter-averments,  at  his  option,  any  matter  or 
thing  which  he  supposes  will  be  insisted  upon  by  the  defendant  by 
way  of  defense  or  excuse  to  the  case  made  by  the  plaintiff  for  re- 
lief. ^^^  The  prayer  of  the  bill  shall  ask  the  special  relief  to  which 
the  plaintiff  supposes  himself  entitled,  and  also  shall  contain  a 
prayer  for  general  relief;  and  if  an  injunction,  or  a  writ  of  ne  exeat 
regno  or  any  other  special  order  pending  the  suit,  is  required,  it 
shall  also  be  specially  asked  for.^^^ 

Concluding  part  of  21st  equity  rule.     For  first  part  see  next  section. 

[a]     The  narrative  or  stating  part  of  the  bill. 

flatter  which  was  formerly  the  charging  part  of  the  bill  may  by  this 
rule  be  embodied  in  the  narrative  part.  The  narrative  or  stating  part  is 
the  real  substance  of  the  bill.  It  should  contain  a  narrative  of  the  facts 
and  circumstances  of  plaintiff's  case,  the  wrong  or  grievance  complained  of, 
and  the  names  of  the  persons  by  whom  done  and  agaia§t  whom  redress  is 
sought. 12  These  facts  must  be  distinctly  alleged  so  as  to  put  them  in 
issue, 13  although  it  is  not  necessary  to  enter  into  minutia  of  evidence. i*  The 
bill  must  contain  sufficient  matter  to  maintain  the  case  of  plaintiff.is  An 
allegation  of  an  essential  fact  in  a.  bill  by  way  of  recital,  but  in  such  form 
that  the  existence  of  the  fact  appears  by  necessary  implication,  is  good  as 
against  a  general  demurrer.is  A  bill  for  rescission  must  contain  clear  and 
positive  allegations  showing  the  equitable  right  of  the  complainants  to  the 
relief  asked. i^  A  petition  stating  a  decree  entered  in  a  former  proceeding, 
either  as  matter  of  inducement  or  as  the  basis  of  plaintiff's  action,  need  not 
set  out  the  petition  on  which  such  decree  was  rendered. 18  A  bill  in  equity 
charging  fraud  should  state  the  facts  relied  on  with  sufficient  particularity 
to  Justify  the  conclusion  and  to  apprise  the  defendant  of  what  he  must  meet 
in  the  way  of  evidence,  but  this  should  be  done  without  undue  minuteness 
of  detail. 19  Strictness  of  pleading  is  not  required  of  those  who  come  in  to 
assert  their  claims  to  property  in  a  suit  for  the  administration  of  a  trust 

eCarlsbad  v.  Tihbetts.  51   Fed.  855.  isTnvestor  Pub.  Co.  v.  Dobinson,  72 

nVright  v.   Skinner.   1.36  Fed.  694.  Fed.  60.3. 

i2Storv  Eq.   PI.   ij  27.  iTPost  v.    Beacon    Vacuum    Punip 

isHarding  v.    Handv.    11    Wheat.  Co.  84  Fed.  371. 

110,  120,  6  L.  ed.  42!t."  isDavis  v.  Davis.  65  Fed.  .380. 

i4Dunham  v.  Railwav  Co.  1  Bond,  i^ Field  v.  Hastings  &  Bradley  Co. 

492,   Fed.   Ca.s.   No.  4,150.  65  Fed.  279. 

isHarrison  v.  Nixon,  9  Pet.  483,  9 
L.  ed.  201. 

899 


§  945   [b]  PROCEDURE   IN   EQUITY   CAUSES.  [Code  Fed. 

by  foreclosure.2  0     The  court  may,  of  its  own  motion,  dismiss  a  bill  which 
fails  tu  make  out  a  case  for  equitable  relief.i 

[b]     The  prayer  for  relief. 

The  rule  requires  a  prayer  for  general  as  well  as  for  specific  relief.  Under 
the  general  prayer  other  relief  than  that  specifically  asked,  may  be  granted 
if  consistent  with  the  case  made  out; 5  but  not  relief  inconsistent  with  that 
specifically  asked ;«  nor  relief  unwarranted  by  the  showing.^  Damages  have 
Ibeen  allowed  under  the  general  prayer; 8  and  specific  performance  has  been 
«rdered.9  The  general  prayer  will  authorize  the  granting  of  relief  though 
the  party  is  not  entitled  to  the  specific  relief  asked. lo  Relief  may  some- 
times be  asked  in  the  alternative,!  i  as  that  complainant  recover  the  specific 
property  or  its  value. 12  In  a  suit  to  settle  bounds  the  court  may  order  an 
old  obliterated  boundary  to  be  remarked. 13  A  prayer  for  discovery  may  be 
ignored  in  the  answer  where  the  bill  propounds  no  interrogatories  and  answer 
under  oath  is  waived.  1 4  It  is  only  where  ne  exeat  is  asked  pending  suit 
7that  this  rule  requires  it  to  be  specially  prayed.is  Failure  to  pray  relief  in 
accordance  with  this  rule  would  be  ground  of  demurrer  to  a  bill,  but  would 
not  impair  the  collateral  validity  of  a  decree  based  thereon. is  The 
waiver  of  answer  under  oath,  frequently  made  to  avoid  the  evidentiary 
^•alue  of  the  answer  under  the  41st  rule,i7  is  properly  inserted  in  this  part 
of  the  bill.     Also  any  other  waiver  or  tender  or  offer  to  do  equity. 

§  946.  —  what  formal  parts  of  bill  may  be  omitted. 

The  plaintiff,  in  his  bill,  shall  be  at  liberty  to  omit,  at  his  option, 
the  part  which  is  usually  called  the  common  confederacy  clause  of 

2  0Blake  v.  Pine  Mt.  Iron  &  C.  Co.  sTavlor   v.   Merchants,   etc.   Co.   9 

43  U.  S.  490,  76  Fed.  624.  How.  406,  13  L.  ed.  187. 

iFourgeres  v.  Jones.  66  Fed.  316.  lOMoore  v.  Mitchell,  2  Woods,  483, 

sOteri  v.  Scalzo,  145  U.  S.  589,  36  Fed.  Cas.  No.  9,770;   Watts  v.  Wad- 

L.    ed.    824,    12    Sup.    Ct.   Rep.    895 ;  die,  6  Pet.  403.  8  L.  ed.  437. 

Hopkins  v.  Grimshaw,  165  U.  S.  358,  uSee  Shields  v.  Barrow,   17  How. 

41   L.  ed.  739,  17  Sup.  Ct.  Rep.  401;  130,  15  L.  ed.   158;    Kilgour  v.  New 

English  V.  Foxall,  2  Pet.  595,  7  L.  ed.  Orleans  G.  L.  Co.  2  Woods,  144,  Fed. 

531;   Wialden  v.  Bodlev,  14  Pet.  156.  Cas.    No.    7,764;    Games   v.    Chew,  2 

10    L.    ed.   398;     Hobson    v.    McAr-  How.   619,    11    L.    ed.   402;    Jones   v. 

thur,    16    Pet.    182,    10    L.    ed.    930;  Electric  Co.  144  Fed.  765,   (C.  C.  A.) 

Boon  v.   Chiles,   8  Pet.  530,  8  L.  ed.  i2Hubbard  v.  Urton,  67   Fed.  419. 

1034;  Jones  v.  Van  Doren,  130  U.  S.  isVirginia  v.  Tennessee,  148  U.  S. 

<692,  32  L.  ed.  1077,  9   Sup.  Ct.  Rep.  528,  37  L.  ed.  546,  13  Sup.  Ct.  Rep. 

685;  Tvler  v.  Savage,  143  U.  S.  98,  36  728. 

L.  ed.  82,  12  Sup.  Ct.  Rep.  340.  i4Excelsior   W.   P.   Co.   v.   Seattle, 

eWlsion   v.    Graham,   4    Wash.    53,  117  Fed.  140,  55  C.  C.  A.  150. 

Fed.  Cas.  No.  17,804;  Curry  v.  Lloyd,  isLewis  v.  Shainwold,  7  Sawy.  403. 

22  Fed.  258,  205.                                   *  48  Fed.  492. 

TKent  V.  Lake  S.  C.  Co.  144  U.  S.  isSeo   United   States   v.  Agler,   62 

92,  36   L.   ed.  352,   12   Sup.   Ct.   Rep.  Fed.  824. 

C50.  17  See  post,  §  95L 

sPenbollow  v.   Doane,   3   Dall.   86, 
1  L.  ed.  521. 

900 


Procedure]  FRAME   OF   BILLS   IN   EQUITY.  §  947 

the  bill,  averring  a  confederacy  between  the  defendants  to  injure 
or  defraud  the  plaintiff ;  also  what  is  commonly  called  the  charging 
part  of  the  bill,  setting  forth  the  matters  or  excuses  which  the  de- 
fendant is  supposed  to  intend  to  set  up  by  way  of  defense  to  the 
bill;  also  what  is  commonly  called  the  jurisdiction  clause  of  the 
bill,  that  the  acts  complained  of  are  contrary  to  equity,  and  that 
the  defendant  is  without  any  remedy  at  law ;  and  the  bill  shall  not 
be  demurrable  therefor. 

First  part  of  21st  equity   rule.     For  remainder  of  rule  see  preceding 
section. 

[a]    Frame  of  equity  bills. 

Formerly  equity  bills  consisted  of  nine  parts,  viz.:  First,  the  address; 
second,  the  introduction;  third,  premises  or  stating  part;  fourth,  the  con- 
federating part;  fifth,  the  charging  part;  sixth,  the  jurisdiction  clause; 
seventh,  the  interrogating  part;  eighth,  prayer  for  relief,  and  ninth,  prayer 
for  process.  The  five  principals  of  these  were  the  statement,  charges,  inter- 
rogatories, prayer  for  relief,  and  prayer  for  process. i  The  above  rule  per- 
mits an  omission  of  the  confederacy  clause,  the  charging  part,  and  the 
jurisdiction  clause.  But  the  object  sought  previously  by  the  charging  part, 
viz.,  to  enable  plaintiff  to  meet  some  defense  or  excuse  which  he  antici- 
pates from  defendant,  may  now  be  accomplished  by  stating  and  avoiding 
such  counter  averments  in  the   narrative  part  of  the  bill. 

§  947.  —  averment  as  to  nonjoinder  of  parties  out  of  jurisdiction. 

If  any  persons,  other  than  those  named  as  defendants  in  the  bill, 
shall  appear  to  be  necessary  or  proper  parties  thereto,  the  l)ill  t  hall 
aver  the  reason  why  they  are  not  made  parties,  by  showing  them  to 
be  without  the  jurisdiction  of  the  court,  or  that  they  cannot  be 
joined  without  ousting  the  jurisdiction  of  the  court  as  to  the  other 
parties.  And  as  to  persons  who  are  without  the  jurisdiction  and 
may  properly  be  made  parties,  the  bill  may  pray  that  process  may 
issue  to  make  them  parties  to  the  bill  if  they  should  come  within 
the  jurisdiction. 
22d  equity  rule. 

This  rule  is  peculiar  to  Federal  practice,  where  parties,  otherwise  neces- 
sary, may  be  dispensed  with  if  their  joinder  would  oust  the  jurisdiction  of 
the  court.5  Where  such  parties  have  not  the  requisite  diverse  citizenship 
they  should  not  be  joined  and  the  bill  should  always  show  the  reason  for 
their  nonjoinder.    But  where  the  trouble  is  merely  that  they  are  not  within 

iSee  Story  Eq.  PI.  §§  38,  46,  notes;         sSee  ante,  §  817.  _ 

Comstock  V.  Herron,  45  Fed.  6G0. 

901 


§  948  PROCEDURE    OF    EQUITY    CAUSES.  [Code  Fed. 

reach  of  process  of  the  courts  it  is  not  improper  to  join  them  as  parties 
since  it  is  possible  they  will  voluntarily  appear.^  In  suits  where  service 
may  be  made  beyond  the  State  or  by  publication  it  is  clearly  proper  to  join 
all  parties  having  the  requisite  diverse  citizenship  regardless  of  their  resi- 
dences As  respects  the  concluding  portion  of  the  above  rule,  authorizing 
prayer  for  process  against  a  party  if  he  come  within  the  jurisdiction,  it  is 
to  be  remembered  that  the  act  of  1887  took  away  the  privilege  of  suing  a 
person  in  the  district  in  which  he  may  be  found  and  permits  suit  only  in  the 
district  of  the  residence  of  plaintiflf  or  defendant.^ 

§  948.  —  the  prayer  for  process. 

The  prayer  for  process  of  subpoena  in  the  bill  shall  contain  the 
names  of  all  the  defendants  named  in  the  introductory  part  of  the 
bill,  and  if  any  of  them  are  known  to  be  infants  under  age,  or 
otherwise  under  guardianship,  shall  state  the  fact,  so  that  the  court 
may  take  order  thereon  as  justice  may  require  upon  the  return  of 
the  process.  If  an  injunction,  or  a  writ  of  ne  exeat  regno,  or  any 
other  special  order,  pending  the  suit,  is  asked  for  in  the  prayer  for 
relief,  that  shall  be  sufficient  without  repeating  the  same  in  the 
prayer  for  process. 
23rd  equity  rule. 

The  omission  from  the  prayer  for  subpoena  of  the  names  of  some  of 
the  defendants  named  in  the  introductory  part  of  the  bill,  is  a  violation 
of  the  above  rule  and  is  a  fatal  defect.i2  It  would  seem  clear  that  absence 
of  any  prayer  for  process  renders  a  bill  demurrable; is  though  it  would  not 
render  void  an  injunction  issued  by  the  court  upon  such  a  bill.i*  Objection 
for  failure  to  name  a  defendant  in  the  prayer  for  process  is  waived  by  ap- 
pearance.1 5 

§  949.  —  the  signature  of  counsel  and  its  legal  effect. 

Every  bill  shall  contain  the  signature  of  counsel  annexed  to  it, 
which  shall  be  considered  as  an  affirmation  on  his  part  that  upon 
the  instructions  given  to  him  and  the  case  laid  before  him,  there  is 
good  ground  for  the  suit,  in  tlic  niannei'  in  wliich  it  is  framed. 
24th  equity  rule. 

«Ante,  §  853.  (Jnebel    v.    American    R.    S.    Co.    55 

7 Ante,   §  860.  Fed.  827. 

sAnte,  §  806.  isLnited   States  v.  Agler,  62  Fed. 

9 Shaw  V.  Quincv  M.  Co.  145  U.  S.  824.     But   see  Jennes  v.   Landes,  84 

444.  449.  36  L.   ed.  768.    12   Sup.   Ct.  Fed.  74. 

Rep.  935;   South  Pac.  Co.  v.  Denton.  ^United  States  v.  Agler.  62  Fed. 

146  r.  S.  202.  .36  L.  ed.  944,  13  Sup.  824. 

Ct.  Rep.  44:  .see  ante.  §  402.  i^Buerk  v.  Imhaeuser,  8  Fed.  457. 

i2Carlsbad  v.  Tibbetts,  51  Fed.  852: 

902 


■ 


Procedure]  FRAME    OF    BILLS    IX    EQUITY.  §   950   [al 

Signature  on  the  back  of  a  bill  has  been  held  sufficient.  Signing  as  "so- 
licitor" is  probably  sufficient  and  as  proper  as  signing  "of  counsel," is  -So- 
licitor" is  in  fact  the  term  customarily  used  to  designate  the  attorney  for 
a  party  in  an  equity  proceeding,  although  in  this  country  the  English  dis- 
tinction between  attorney,  solicitor  and  barrister  has  lost  its  legal  sig- 
nificance. 1 7  The  requirement  for  signature  of  counsel  cannot  be  deemed  ob- 
ligatory where  complainant  sues  in  person,  in  view  of  R.  S.  §  747  permitting 
a  party  to  conduct  his  own  cause  in  any  court  of  the  United  States. is  A 
bill  defective  in  this  particular  is  demurrable,!  9  and  may  be  stricken  from 
the  file. 2  0  But  the  court  should  permit  an  amendment  as  of  course. i  If 
the  omission  is  to  be  deemed  merely  formal,  it  can  be  waived  under  R.  S. 
§  954  directing  the  court  to  ignore  merely  formal  defects  unless  demurred 
to. 2  A  bill  ordered  from  the  files  for  want  of  signature  may  be  signed  and 
on  motion  restored. s 

§  950.  —  interrogatories — form  of  statement. 

Instead  of  the  words  of  the  bill  now  in  use,  preceding  the  in- 
terrogating part  thereof,  and  beginning  with  the  words  "to  the  end 
thereof,"  there  shall  hereafter  be  used  words  in  the  form  or  to 
the  effect  following :  "To  the  end,  therefore,  that  the  said  defend- 
ants may,  if  they  can,  show  why  your  orator  should  not  have  the 
relief  hereby  prayed,  and  may,  upon  their  several  and  respective 
corporal  oaths,  and  according  to  the  best  and  utmost  of  their  sev- 
eral and  respective  knowledge,  remembrance,  information,  and  be- 
lief, full,  true,  direct  and  perfect  answer  make  to  such  of  the  several 
interrogatories  hereinafter  numbered  and  set  forth,  as  by  the  note 
hereunder  written  they  are  respectively  required  to  answer;  that 
is  to  say — 

"1.  Whether,  etc. 

"2,  Whether,  etc,"[^^-[*'^ 
43rd  equity  rule,  promulgated  Mar,  1842. 

[a]     In  general. 

Where  plaintiff  merely  annexed  the  interrogatories  to  the  bill  and  failed 
to  refer  to  them  therein,  this  has  been  held  an  informality  which  may  be 

isStinson   v.   Hildrup,   8    Bis.    37G,  v.  TTildrup,  8  Biss,  ,370.  Fed.  Cas.  Xo. 

Fed.  Cas.  Xo.  13,4;-)!).  13.4.50. 

I'Stinson  v.  Hildrup,   8  Biss.  376,         iD\vight  v.  Huniphrev,  3   McLean. 

Fed.  Cas.  Xo,  13.450.  104.    Fed.   Cas.  Xo.  4  216;    Stinson  v. 

isSee  ante,  §  403.  Hildrup,   8  Biss.   370.    Fed.   Ca.s.    Xo. 

isDwight  v.  Humphrev.  3  McLean,  13,4.50;  see  R.  S.  §  954.  ante.  §  813. 
104,  Fed.  Cas.  Xo.  4.210."  2See  ante.  §  813. 

20Roach    V.    Huling.    5    Cranch    C.        ^Roach  v.  Huiings,  ;5  Crunch  C.  C. 

C.  637,  Fed.  Cas.  Xo.  11,374;  Stinson  0.37,  Fed.  Cas.  Xo.  11,874. 

903 


§  950   [b]  PROCEDURE   IN  EQUITY  CAUSES.  [Code  Fed- 

waived  when  not  prejudicial."  If  the  defendant  does  not  duly  answer  the 
interrogatories  plaintiff's  remedy  is  by  exception  to  the  answer. s  The  court 
will  then  order  due  answer  to  be  made  and  tax  the  costs  against  defendant. » 

[b]     Discovery. 

While  defendant  is  now  required  to  answer  a  bill  fully  without  interroga- 
tories,! o  though  not  if  his  answer  contains  a  plea  in  bar  or  to  the  nier- 
itSjii  it  is  still  advisable  for  complainant  who  seeks  discovery  to  attach  inter- 
rogatories to  his  bill.  12  The  interrogatory  or  discovery  part  of  a  bill  is  now 
of  less  importance  than  it  was  prior  to  the  act  of  186413  permitting  parties, 
to  be  examined  as  witnesses. i*  It  has  been  doubted  whether  a  bill  seeking 
only  discovery  and  not  relief,  is  now  permissible.!  5  The  answer  to  the 
question  depends  upon  whether  there  is  a  plain  speedy  and  adequate  rem- 
edy at  law  as  tested  in  the  Federal  courts.!  6  State  laws  giving  relief  at  law 
previously  available  only  in  equity  will  not  extinguish  although  they  may 
render  obsolete,  the  old  equity  remedy  in  the  Federal  court.! 7  But  the 
act  of  Congress  making  parties  competent  witnesses,  has  probably  made 
bills  for  discovery  no  longer  maintainable. 

§  951.  —  interrogatories  must  be  numbered. 

The  interrogatories  contained  in  the  interrogating  part  of 
the  bill  shall  be  divided  as  conveniently  as  may  be  from 
each  other,  and  numbered  consecutively  1,  2,  3,  etc. ;  and  the 
interrogatories  which  each  defendant  is  required  to  answer  shall 
be  specified  in  a  note  at  the  foot  of  the  bill,  in  the  form,  or 
to  the  effect  following,  that  is  to  say:  "The  defendant  (A.  B.)  is 
required  to  answer  the  interrogatories  numbered  respectively  1, 
2,  3,"  etc. ;  and  the  office  copy  of  the  bill  taken  by  each  defendant 
shall  not  contain  any  interrogatories  except  those  which  such  de- 
fendant is  so  required  to  answer,  unless  such  defendant  shall  re- 
quire to  be  furnished  with  a  copy  of  the  whole  bill. 
41st  equity  rule  as  originally  promulgated  March  1842. 

The  amendment  of  this  rule  adopted  at  the  December  term,  18G1,  is  con- 
cerned with  waiver  of  answer  under  oath,2  0  and  does  not  affect  this  portion 
of  the  rule. 

^Federal   M.    Co.   v.   International  L.    ed.    1204;    United   States   v.   Mc- 

Co.  119  Fed.  385.  Laughlin,  24  Fed.  823;  Field  v.  Has- 

sPost.  §  1101.  tings,  65   Fed.   280;    see   post,   §   996 

sLangdon  v.  Goddard,  3  Story,  13,  [a]. 

Fed.  Cas.  No.  8.061.  isEx   parte   Boyd,    105   U.   S.   657, 

loPost,   §  998.  26  L.  ed.  1204;  biit  see  National,  etc. 

i!Post.  §  996.  Co.   v.    Interchangeable,    etc.   Co.   83 

!2Parsons  v.  Cummings,  1   Woods,  Fed.  26. 

461.  Fed.  Cas.  No.  10,775.  leSee    ante,    S    935[c]. 

13 Post.  S  1735.  17 Ante,   §  935 [c],   [f]. 

14  Ex  parte  Boyd,  105  U.  S.  657,  26.  20  See  post,  §   1000. 

904 


Procedure]  NECESSARY     ALLEGATIONS.  §   953   [a]; 

§  952.  — footnote  respecting  interrogatories  deemed  part  of  bill. 

The  note  at  the  foot  of  the  bill,  specifying  the  interrogatories 
which  each  defendant  is  required  to  answer,  shall  be  considered  and 
treated  as  part  of  the  bill,  and  the  addition  of  any  such  note  to  the 
bill,  or  any  alteration  in  or  addition  to  such  note  after  the  bill 
is  filed,  shall  be  considered  and  treated  as  an  amendment  of  the 
bill. 

42d   equity   rule,  promulgated  March,   1842. 

§  953.     Necessary  allegations  of  stockholder's  bill. 

Every  bill  brought  by  one  or  more  stockholders  in  a  corporation 
against  the  corporation  and  other  parties,  founded  on  rights  which 
may  properly  be  asserted  by  the  corporation,  must  be  verified  by 
oath,  and  must  contain  an  allegation  that  the  plaintiff  was  a  share- 
holder at  the  time  of  the  transaction  of  which  he  complains,  or 
that  his  share  had  devolved  on  him  since  by  operation  of  law;  and 
that  the  suit  is  not  a  collusive  one  to  confer  on  a  court  of  the  United 
States  jurisdiction  of  a  case  of  which  it  would  not  otherwise  have- 
cognizance.  It  must  also  set  forth  with  particularity  the  efforts 
of  the  plaintiff  to  secure  such  action  as  he  desires  on  the  part  of 
the  managing  directors  or  trustees,  and,  if  necessary,  of  the  share- 
holders, and  the  cause  of  his  failure  to  obtain  such  action. 
94th  equity  rule  104  U.  S.  ix. 

[a]     In  general. 

This  rule  was  promulgated  January  23rd,  1882.  It  was  framed  in  the 
light  of  the  opinion  in  Hawes  v.  Oakland, 5  decided  at  the  same  term,  and 
defining  the  facts  which  must  appear  to  justify  the  maintenance  of  a 
shareholder's  suit  against  a  corporation.  It  applies  only  to  suits  institu- 
ted in  the  circuit  court  and  not  to  causes  removed  from  State  courts; 6 
and  to  suits  against  the  corporation  and  others,  not  merely  against  the 
corporation.  Demand  upon  a  resident  managing  agent  and  failure  to  make 
demand  upon  the  directors  because  they  were  too  far  away,  has  been  held 
an  insufficient  showing. 7  A  bill  omitting  any  allegation  of  demand  upon  the- 
corporate  managers  has  been  held  jurisdictionally  defective; 8  and  dismiss- 

sHawes  v.  Oakland.  104  U.  S.  450,  Excelsior   P.   Co.   v.   Brown,   74   Fed. 

26  L.  ed.  827 ;  see  Corbus  v.  Alaska  T.  323.  20  C.  C.  A.  428. 
G.  M.  Co.  187  U.  S.  462,  47  L.  ed.  259,        ^Corbus   v.   Alaska   T.    G.    ]M.    Co. 

23  Sup.  Ct.  Rep.  160.  187  U.  S.  463.  47  L.  ed.  359,  23  Sup. 

6Leo  V.  Union  P.  Rv.  17  Fed.  273;  Ct.  Rep.  160. 
Earle  v.  Seattle,  etc.  Ry.  50  Fed.  909;        ^Dickinson  v.  Cons.  T.  Co.  114  Fed. 

Evans  v.  Union  P.  Ry.  58  Fed.  497;  241. 

905 


§   9r>.}   [bl  I'ROCEDURE   IN  EQUITY   CAUSES.  [Code   Fed. 

able.9  An  injunction  sought  will  bo  refused  where  the  hill  lacks  these 
averments. 10  Plaintiff  is  required  to  show  the  efforts  on  his  own  part  and 
not  the  efforts  of  others. n  The  requirement  for  a  showing  of  the  stock- 
holders efforts  to  get  redress,  may  sometimes  be  dispensed  with  where  the 
facts  set  forth  in  the  bill  demonstrate  that  such  efforts  would  have  been 
futile.i2  The  leading  case  itself  recognizes  that  there  are  cases  where  de- 
mand cannot  be  made  or  where  it  would  be  unreasonable  to  require  it.is 
]>ut  there  must  be  either  allegations  as  to  a  demand  or  of  facts  which 
legally  excuse  it.i4  The  fact  that  five  of  the  seven  directors  participating 
in  a  fraudulent  transaction  are  still  in  office  has  been  held  no  excuse.15 
The  allegation  as  to  ownership  of  the  stock  is  always  essential.is  Technical 
compliance  with  this  rule  does  not  prevent  an  inquiry  by  the  court  into  the 
bona  fides  of  the  efforts  of  complainant  or  the  propriety  of  permitting  him 
to  sue.i7 

[b]     Verification. 

A  stockholder's  bill  is  the  only  one  required  to  be  verified  by  the  equity 
rules.  A  bill  for  an  injunction  should  however  be  verified  if  the  party  de- 
sires to  read  it  in  evidence  at  the  hearing.i 

§  954.     Necessity  for  succinctness,  and  avoidance  of  impertinence 
and  scandal. 

Every  bill  shall  be  expressed  in  as  brief  and  succinct  terms  as 
it  reasonably  can  be,  and  shall  contain  no  unnecessary  recitals  of 
deeds,  documents,  contracts  or  other  instruments,  in  haec  verba, 
or  any  other  impertinent  matter, i^^^  or  any  scandalous  matter^''^  not 
relevant  to  the  suit.  If  it  does,  it  may  on  exceptions  be  referred  to 
a  master  by  any  judge  of  the  court  for  impertinence  or  scandal: 
and  if  so  found  by  him,  the  matter  shall  be  expunged  at  the  expense 
of  the  plaintiff,  and  he  shall  pay  to  the  defendant  all  his  costs  in 
the  suit  up  to  that  time,  unless  the  court  or  a  judge  thereof  shall 

sBimber  V    Calivada    C.    Co.     110  isHawes  v.  Oakland,  104  U.  S.  4G1, 

Fed.  59.  26  L.  ed.  827. 

lOWeidenfeld  v.  Allegheny,  etc.  E.  i4LouisvilIe,  etc.  R.  R.  v.  Neal,  128 

R.  47  Fed.  14:   Squair  v.  Lookout  M.  Ala.  150.  29  So.  867. 

Co.  42  Fed.  730.  isChurch    v.    Citizens    St.    Ry.    78 

iiDannmever  v.  Coleman,  11    Fed.  Fed.  526. 

101,   8   Sawv.   51.  leRobinson  v.   West   V.   L.   Co.   90 

i2LafaTette  Co.   v.  Neelv.  21    Fed.  Fed.  772. 

738;    Young  v.  Alhambra  M.   Co.  71  iTCorbus  v.   Alaska  T.   G.  M.  Co. 

Fed.    810;  ^Excelsior    P.    P.    Co.    v.  187  U.  S.  483.  47  L.  ed.  259,  23  Sup. 

Brown.  74  Fed.  321,  20  C.  C.  A.  428;  Ct.  Rep.  160.     See  McHenrv  v.  N.  Y., 

De  Neufville  v.  N.  Y.  etc.  R.  R.  81  etc.  R.  R.  22  Fed.  131. 

Fed.    13,   26   C.   C.   A.   306;    Weir  v.  iSee    Woodworth    v.    Edwards.    3 

Bav  R.  G.  Co.  91  Fed.  940;  Rogers  v.  Wood.   &   M.   120.   Fed.   Cas.  Ko.   18,- 

Nashville,   etc,   Ry.   91    Fed.    305,    33  014:    Hughes   v.    Northern    P.   R.   R- 

C.  C.  A.  517.  18  Fed.  108:  Black  v.  H.  G.  Allen  Uo. 

42  Fed.  622,  623,  9  L.R.A.  433. 
.  906 


1 


ProceduieJ  IMPERTINENCE  AND  SCANDAL.  §  955 

otherwise  order.     If  the  master  shall  report     that  the  bill  is  not 
scandalous  or  impertinent,   the   plaintiff  shall   be  entitled  to  all 
costs  occasioned  by  the  reference. 
26th  equity  rule. 

[a]     Surplusage,  irrelevant  and  impertinent  matter. 

Impertinence  consists  of  any  allegation  that  is  irrelevant  to  the  material 
issues  made  or  tendered. 4  Impertinences  are  matters  not  pertinent  or  rele- 
vant to  the  points  properly  before  the  court  for  decision; 5  or  such  mat- 
ters as  are  stated  with  needless  prolixity. 6  Matter  which  is  entirely  im- 
material is  impertinent,  and  should  be  expunged."  Where  exceptions  are 
taken  for  impertinence,  the  pleading  will  be  given  a  liberal  construction.^ 
The  rule  that  a  bill  in  equity  should  contain  a  clear  and  explicit  description 
sufficient  to  give  the  defendant  notice  of  the  subject  matter  of  the  com- 
plaint against  him  is  not  abrogated  by  the  above  rule.9  The  circuit 
court  has  power  to  order  the  striking  from  its  files  of  a  rambling  and  ver- 
bose bill  of  excessive  length,  containing  impertinent  and  scandalous  matter, 
and  to  permit  complainants  to  file  within  a  stated  time,  as  of  the  date 
of  the  original  filing,  a  new  bill  not  exceeding  a  prescribed  length.io  The 
above  rule  does  not  abrogate  or  curtail  the  inherent  power  of  the  Federal 
courts  in  equity  to  strike  out  rambling  or  tautological  pleadings,  and  purge 
their  records  of  scandalous  or  impertinent  matter,  on  their  own  motion,  and 
in  the  absence  of  exceptions,  n  Mere  argument  in  an  answer  as  to  the  ef- 
fect of  facts  already  apparent  in  the  bill  is  impertinent,  and  upon  exception 
will  be  stricken  out.i2 

£b]     Scandalous  matter. 

Scandal  in  a  pleading  has  been  defined  as  any  unnecessary  allegation 
bearing  cruelly  on  the  moral  character  of  an  individual,  or  stating  any- 
thing contrary  to  good  manners  or  anything  unbecoming  the  dignity  of  the 
cf)urt  to  hear.  Facts  not  material  are  impertinent  and,  if  reproachful,  a^-e 
scandalous. 16  Matter  is  not  scandalous  unless  also  impertinent,  but  the  re- 
verse  is   not   true.i7 

§  955.  —  timely  exception  to  impertinence  and  scandal. 

Xo  order  shall  Ije  made  by  any  judge  for  referring  any  bill,  answer 

4KeIlev  V.  Boettcher.  85  Fed.  55.  29  lOKellev  v.  Boettcher  29  C.  C.  A. 

C.   C.   A.   14.  14.  85  Fed.  55. 

sWood  V.  Mann,  1  Sum.  578.  Fed.  nKellev  v.  Boettcher.  29  C.  C.  A. 

fus.  No.  17,9'.52.  14.  85  Flea.  55. 

fiChapman  v.  School    Dist.    Deady,  12 Florida  Mortg.  &  Inv.  Co.  v.  Fin- 

108.  Fed.  Cas.  No.  2.607.  layson.  74  Fed.  671. 

"Lansrdon  v.  (ioddard.  3  Story.  13,  isKellev  v.   Boettcher.  85   Fed.   55, 

Fed.   ('as.   No.   8.001.  29  C.  C.  A.  14.     See  Green  v.  Elbert, 

sGri.-^wold    v.    Hill,    1    Paine.    390,  137  I'.  S.  615.  34  L.  ed.  792,  11  Sup. 

Fed.  Cas.  No.  5.835.  Ct.   Rop.    188. 

sElectvolibration     v.     Jackson,    52  tiToler  v.  East  T.  V.  &  G.  Ry.  07 

Fed.  773.  Fed.   175. 

907 


§  U5t3  PROCEDURE  IN   EQUITY    CAUSES.  [Code   Fed. 

or  pleading,  or  other  matter  or  proceeding  depending  before  the 
court  for  scandal  or  impertinence,  unless  exceptions  are  taken  in 
writing  and  signed  by  counsel,  describing  the  particular  passages 
which  are  considered  to  be  scandalous  or  impertinent;  nor  unless 
the  exceptions  shall  be  filed  on  or  before  the  next  rule  day  after 
the  process  on  the  bill  shall  be  returnable,  or  after  the  answer  or 
pleading  is  filed.  And  such  order,  when  obtained,  shall  be  con- 
sidered as  abandoned,  unless  the  party  obtaining  the  order  shall, 
without  any  unnecessary  delay,  procure  the  master  to  examine  and 
report  for  the  same  on  or  before  the  next  succeeding  rule  day,  or 
the  master  shall  certify  that  further  time  is  necessary  for  him  to 
complete  the  examination. 
27th  equity  rule. 

It  is  the  proper  practice  to  make  separate  exceptions  covering  each  sep- 
arate niivtter  alleged  to  be  impertinent  or  scandalous;  as  an  exception  taken 
is  properly  only  considered  and  allowed  or  disallowed  as  a  whole,  i  De- 
murrer is  not  the  proper  way  of  alleging  impertinence. 2 

§  956.     Amendment  of  bill  before  plea,  demurrer,  or  answer. 

The  plaintiff  shall  be  at  liberty,  as  a  matter  of  course,  and  with- 
out payment  of  costs,  to  amend  his  bill  in  any  matters  whatsoever, 
before  any  copy  has  been  taken  out  of  the  clerk's  office,  and  in  any 
small  matters  afterward,  such  as  filling  blanks,  correcting  errors 
of  dates,  misnomer  of  parties,  misdescription  of  premises,  clerical 
errors,  and  generally  in  matters  of  form.  But  if  he  amend  in  a 
material  point  (as  he  may  do  of  course)  after  a  copy  has  been  so 
taken,  before  any  answer  or  plea,  or  demurrer  to  the  bill,  he  shall 
pay  to  the  defendant  the  costs  occasioned  thereby,  and  shall,  with- 
out delay,  furnish  him  a  fair  copy  thereof  free  of  expense,  with 
suitable  references  to  the  places  where  the  same  are  to  be  inserted. 
And  if  the  amendments  are  numerous,  he  shall  furnish  in  like 
manner  to  the  defendant  a  copy  of  the  whole  bill  as  amended ;  and 
if  there  be  more  than  one  defendant,  a  copy  shall  be  furnished  to 
each  defendant  affected  thereby.'^^^"^''^ 
2Sth  equity  rule. 

The  Federal  statute  respecting  amendment  is  applicable  in  equity  as 
well  as  at  law,  and  has  already  been  considered. «     Different  rules  apply  to 

1  Chapman  v.  School  Dist,  Deadv,  2Howe.  etc.  Co.  v.  Haugan,  140 
108,  Fed.  Cas.  No.  2,607.  ^      Fed.   1S2. 

6Ante.   §   813    [j]. 
908 


■ 


PioceJure]  AMENDMENT   AFTER   PLEA.  §   937 

the  amendment  of  different  pleadings  and  according  to  the  stage  of  the  pro- 
ceeding when  amendment  is  sought.  This  rule  deals  mereh'  with  amend- 
ments of  the  bill  prior  to  "any  answer  or  plea  or  demurrer."  It  is  to  be 
observed  that  the  rule  contemplates  the  serving  of  a  copy  of  the  amend- 
ments only;  except  that  where  the  amendments  are  numerous,  it  requires 
service  of  a  copy  of  the  whole  bill  as  amended.  So  far  as  this  rule 
differs  from  the  principles  laid  down  in  an  early  nisi  prius  case  respecting 
the  proper  method  of  amendment,  it  must  be  deemed  to  have  superseded 
it."  The  natural  tendency  of  careful  practitioners  would  be  to  file  an 
amended  bill  rather  than  amendments  whenever  doubtful  whether  the 
amendments  would  be  deemed  "numerous."  If  there  has  been  plea,  answer 
or  demurrer  by  any  of  several  defendants,  it  would  seem  that  the  right 
to  amend  would  be  governed  by  the  next  rules  and  not  by  this. 9  The 
general  rule  is  that  nothing  which  has  occurred  subsequent  to  the  filing  of 
the  bill  can  be  added  by  amendment,  but  must  be  brought  in  by  supple- 
mental bill.io  A  special  appearance  to  object  to  the  jurisdiction  is  not  a 
plea,  demurrer  or  answer;  but  in  one  case  where  there  had  been  such  special 
appearance  plaintiff  in  amending  proceeded  upon  petition  and  notice  to 
the  adverse  party,  in  the  mode  prescribed  by  the  next  rule,  althou.q;h  the 
•court  declared  the  case  within  this  one.n  The  rule  requires  service  of  the 
amendments  or  of  the  amended  bill  upon  the  parties  "affected  thereby" 
"but  does  not  require  a  new  subpoena;  and  no  new  subpoena  is  necessary 
unless  against  parties  first  added  by  the  amendment.  12  While  this  rule 
•expressly  permits  amendments  "in  any  matter  whatsoever"  it  would  seem 
that  the  substitution  of  a  different  cause  of  action  is  not  a  proper  amend- 
ment even  at  this  preliminary  stage  of  the  prcceedings.  The  courts  have 
frequently  declared  such  substitution  improper  after  the  defendant  has 
•pleaded;i3  and  the  safer  practice  would  be  for  complainant  to  begin  all  over 
again.  Where  amendment  is  attempted  after  defendant  has  taken  a  copy 
■of  the  bill  from  the  office,  without  paying  costs  or  furnishing  a  copy  as 
required,  it  is  nugatory  and  plaintiff  may  withdraw  it.i*  The  amendment 
need  not  be  supported  by  affidavit.! 5 

§  957.     Amendment  after  plea,  demurrer,  or  answer  and  after 
replication. 

After  an  answer,  or  plea,  or  demurrer  is  put  in,  and  before  replica- 
tion, the  plaintiif  may,  upon  motion  or  petition,  without  notice, 

'Peirce    v.    West,    3   Wash     C.    C.        11  Insurance    Co.    v.    Svendson,    74 

.354.  Fed.  Cas.  Xo.  10.910.  Fed.   347. 

8See   post.    §   957.  i2French  v.  Hav,  22  Wall.  23S.  22 

"See  Peirce  V.  West,  3  Wash.  C.  C.  L.    ed.    854;    Longworth    v.    Tavlor, 

•354.  Fed.  Cas.  No.   10.910.  1  McLean.  514.  Fed.  v,as.  Xo.  8,491. 

I  "See  Hobson  v.  :\rcArthur,  16  Pet.        isSee  post.  §  9.57  [c]. 
194.  10  L.  ed.  9.30;  .Tenkins  v.  Inter-        iiRhemeld  F.  Co.  v.  Wittherow,  149 

national  13.  Co.  127  U.  S.  4S9.  32  L.  U.  S.  .570.  37  L.  ed.  853,  13  Sup.  Ct. 

pd.  189.  8  Sup.  Ct.  PvPp.  1190:  Mason  Rep.   930. 

V.  Hartford,  etc.  R.  R.   10  Fed.   334;         isChase  E.  C.   Co.   v.   Columbia   C. 

Lvstor  v.  Stieknev.  4  MtCrarv.   109.  Co.  136  Fed.  099. 
12  Fed.  009.     See  post.  §  961. 

909 


§  957   [a] 


FROCEDUKE    IN    EQUITY     CAUSES. 


[Code  Fed. 


obtain  an  order  from  any  judge  of  the  court  to  amend  his  bill  on 
or  before  the  next  succeeding  rule  day,  upon  payment  of  costs  or 
without  payment  of  costs,  as  the  court  or  a  Judge  thereof  may  in  his 
discretion  direct. ^''^  But  after  replication  filed  the  plaintiff  s!u:ll 
not  be  permitted  to  withdraw  it  and  to  amend  his  bill,  except  upon 
a  special  order  of  a  judge  of  the  court,  upon  motion  or  petition, 
after  due  notice  to  the  other  party,  and  upon  proof  by  athdavit  that 
the  same  is  not  made  for  the  purpose  of  vexation  or  delay,  or  that 
the  matter  of  the  proposed  amendment  is  material,  and  could  not 
with  reasonable  diligence  have  been  sooner  introduced  into  the 
bill,  and  upon  the  plaintiff's  submitting  to  such  other  terms  as  may 
be  imposed  by  the  judge  for  speeding  the  cause.^*'^''^®^ 
29th  equity  rule,  adopted  March,  1842. 

[a]  Ex  parte  order  for  amendment  after  plea,  etc,  but  before  replication. 
This  rule  deals   with  amendment  of  a   bill   to  which  the  defendant  has 

pleaded,  both  before  and  after  replication.  Before  replication  leave  to 
amend  is  obtainable  ex  parte,  after  replication  it  must  be  upon  notic'. 
It  will  be  observed  that  this  rule  does  not  apply  to  the  subject  of  amend- 
ment after  a  demurrer  or  plea  is  allowed,  but  only  after  it  is  filed. 1 9  Tlie 
35th  rule  governs  the  matter  of  amendment  after  demurrer  has  been  al- 
lowed.20  As  the  court  is  empowered  by  order  to  allow  an  amendment  with- 
out notice  at  this  stage  of  the  case,  the  opposing  counsel  cannot  maintinn 
a  motion  to  set  aside  an  order  so  made,  or  to  strike  the  amended  pleading 
from  the  files. 1  Defendant  has  no  right  by  motion,  to  compel  a  com- 
plainant to  amend  with  a  view  to  disclosing  an  alleged  defect  in  his  case. 2 

[b]  Amendment  upon  notice  to  adverse  party,  after  replication  and  after 

hearing. 
Where  a  matter  might  have  been  sooner  introduced  into  the  bill,  courts 
have  refused  to  permit  amendment  after  replication  even  in  small  matters. 5 
An  amended  bill  filed  without  leave,  upon  the  day  that  original  was 
discussed,  will  be  disregarded  by  an  appellate  court. 6  An  amended  bill 
filed  after  replication  without  leave  may  be  stricken  out;i^  so  also  if  the 
amended  bill  lack  the  necessary  affidavit. 8  Amendments  of  the  bill  may 
be  allowed  even  after  hearing,  where  necessary  to  do  substantial  justice.* 


isNational  Bank  v.  Carpenter,  101 
U.  S.  568.  26  L.  ed.  816. 

20  See  post.  §  086. 

iLichtenauer  v.  Chenev,  3  Mc- 
Crarv.  119.  8  Fed.  876. 


man.  13  Elatchf.  210.  Fed.  Cas.  No. 
2.894. 

6Terrv  v.  ISIcLure,  103  U.  S.  443. 
26   L.    ed.    403. 

TWashington   R.   R.  v.  Bradley.    lO' 


2Phelps  V.  Elliott,  23  Blatchf.  470,    Wall.   299.    19  L.   ed.   894. 
26  Fed.  881.  s  Beaver  v.  C.  A.  Richardson  &  Co. 

5R0SS  V.  Carpenter,  6  McLean,  382,    118   Fed.    320. 
Fed.  Cas.  No.  12,072;  Clifford  v.  Cole-        sGraffam  v.  Burgess,  117  U.  S.  19L 

910 


Proredure] 


AMENDMENT     AETER     PLEA. 


§   957    [c] 


But  amendments  sought  after  the  decision  and  just  prior  to  the  de- 
cree, have  been  refused. 9 V2  The  greatest  liberality  prevails  in  the  allowing 
of  amendments  to  make  the  pleadings  show  the  court's  jurisdiction  if 
in  fact  jurisdiction  exists;  10  or  to  bring  in  or  leave  out  a  party. n  But 
it  is  said  that  the  purpose  of  amendment  after  replication  must  be  "not 
to  strengthen  or  enlarge  the  complainant's  case,  nor  to  change  the  char- 
acter or  quantity  of  the  relief  for  which  he  has  asked,  but  to  enable  the 
court  to  administer  substantial  justice. "12  The  courts  have  a  large  dis- 
cretion in  the  allowance  or  disallowance  of  amendments  :13  but  are  in- 
disposed to  allow  amendments  changing  the  character  of  a  bill,  after  a  case 
is  set  for  hearing.i4  The  court's  discretion  is  not  so  easily  moved  after 
hearingia  the  question  in  each  case  depends  largely  upon  its  special  circum- 
stances and  "the  ends  of  justice  should  never  be  sacrificed  to  mere  form,  or 
by  too  rigid  an  adherence  to  technical  rules  of  practice." is  Under  no 
circumstances  should  amendment  be  permitted  after  final  decree;  relief 
must  then  be  had  by  supplemental  bill. 1 7 

[c]     Substitution  of  different  cause  of  action. 

The   substitution    of   a   different   cause   of  action    is   an   improper  use  of 
the  right  to  amend  ;i   especially  if  the  statutory  period  of  limitation  has 


29  L.  ed.  S-14.  6  Sup.  Ct.  Kep.  686: 
Xeale  V.  Xeales.  n  Wall.  1.  19  L.  ed. 
.590;  Tlie  Tremolo  l^atent.  23  Wall. 
518.  2.3  L.  el.  97:  Battle  v.  Mutual  L. 
Ins.  Co.  10  Blatchf.  418.  Fed.  Cas.  No. 
1109;  Hamilton  v.  Southern  N.  etc. 
Co.    1.3    Sawv.    113.    33    Fed.    .562 

sVzSee  Claflin  v  Bennett,  ,51  Fed. 
701.  702:  Blair  v.  Harrison.  57  Fed. 
257.  6  C.  C.  A.  326. 

lOSee  fjoward  v.  De  Cordova.  177 
V.  S.  609,  44  L.  ed.  908.  20  Sup.  Ct. 
Rep.  817;  Home  Co.  v.  Nobles,  63 
Fed.  641  :  Fisher  v.  Rutherford.  1 
Baldw.  188.  Fed.  Cas.  No.  4.823:  Hil- 
liard  v.  Brevoort.  4  ^IcLean.  25.  Fed. 
Cas.  No.  i;..505:  Harvey  v.  Rich- 
mond, etc.  Rv.  (54  Fed.  19;  Collinson 
v.  .lackson.  8  Sawv.  .3.57,  14  Fed.  305. 

iiWalden  v.  Bodley,  14  Pet.  1.56, 
10  L.  ed.  389:  Lewis' v.  Darling,  16 
How.  8.  14  L.  ed.  819:  Shields  v.  Bar- 
row. 17  How.  1.30.  15  L.  ed.  158;  Har- 
rison v.  Rowan,  4  Wash.  202.  Fed. 
Cas.  No.  6,143:  Hubard  v.  Manhat- 
tan T.  Co.  87  Fed.  51.  30  C.  C.  A. 
520.     See  ante.  §  813  [j]. 

i2Bass  v.  Christian  Feigensham. 
82  Fed.  261.  refusing  amendment  in 
an  infringement  easi'  enlarging  the 
claim  and  changing  the  character  f»r 
quantitv  of  relief  sought.  See  also 
ante,    S   813    [j]. 

91 


i3Neale  v.  Neales,  9  Wall.  9,  19  L. 
ed.  590;  The  Tremolo  Patent,  23 
Wall.  527,  23  L.  ed.  97:  National 
Bank  v.  Carpenter,  101  V.  S.  568,  25 
L.  ed.  816:  Roberts  v.  Northern  P. 
R.  R.  158  U.  S.  26,  39  L.  ed.  873.  15 
Sup.  Ct.  Rep.  756:  Hardin  v.  Bovd. 
113  U.  S.  761.  28  L.  ed.  1141.  5  Sup. 
Ct.  Rep.  771;  Richmond  v.  Irons.  121 
U.  S.  47,  .30  L.  ed.  871,  7  Sup.  Ct. 
Rep.  788;  United  States  v.  American 
B.  T.  Co.  39  Fed.  717:  Jones  v.  Van 
Doren.  1.30  U.  S.  691.  .32  L.  ed.  1077.9 
Sup.  Ct.  Rep.  685:  Gubhins  v.  Laugh- 
tensch lager.  75  Fed.  620. 

i4The"  Tremolo  Patent.  23  Wall. 
527.  23  L.  ed.  97. 

isGubbins  v.  Laughtenschlager,  75 
Fed.  620. 

leHardin  v.  Bovd.  113  U.  S.  761. 
28  L.  ed.  1141.  5  Sup.  Ct.  Rep.  771. 

iTFrench  v.  Hav,  22  Wall.  246,  22 
L.  ed.  854. 

1  Shields  v.  Barrow.  17  How.  130, 
15  L.  ed.  158:  Hardin  v.  Bovd.  113 
U.  S.  764,  28  L.  ed.  1141,  15  Sup.  Ct. 
Rep.  771 :  Richmond  v.  Irons,  121 
U.  S.  47.  30  L.  ed.  864,  7  Sup.  Ct. 
Rep.  788;  Savage  v.  Wor^ham,  104 
Fed.    19. 


§  957   [dl  PROCEDURE    IN    EQUITY    CAUSES.  [Code  Fed. 

expired.s  A  motion  to  strike  such  an  amended  bill  from  the  files  is  proper.' 
But  it  is  not  a  statement  of  a  different  cause  of  action  to  amend  the 
prayer  by  asking  relief  in  the  alternative;"*  or  to  amend  the  prayer  and 
omit  allegations  as  to  one  party; 5  or  an  amendment  amplifying  a  denial  of 
service  of  process. 6 

[d]  Proceedings  upon  amended  bill. 

The  46th  equity  rule  governs  cases  in  which  the  bill  is  amended  after 
answer  filed. ■?  Where  an  amended  bill  is  filed  no  new  subpoena  is  neces- 
sary against  parties  already  in  court,  but  only  against  any  new  parties 
first  joined  in  the  amended  bill. 8  The  general  rule  is  that  defendants 
have  the  same  right  to  answer  the  amended  bill  as  they  had  to  answer 
the  original.9  The  court  has  no  discretion  to  deny  defendants  a  reason- 
able time  in  which  to  answer  an  amended  bill.io  In  Federal  practice  it  is 
usual  for  the  parties  by  agreement  or  for  the  court  by  special  rule  to  fix 
the  time  within  which  an  amended  bill  maj'^  be  answered.n  If  plaintiff 
amends  after  he  has  taken  a  default  it  virtually  vacates  the  default. 12  If 
defendant  has  answered  before  amendment,  the  46th  equity  rule  applies.!  3 
If  he  has  filed  a  plea  or  demurrer  which  has  not  been  disposed  of,  he  may 
doubtless  make  the  same  or  any  other  attack  upon  the  new  pleading. 
But  if  a  plea  or  demun'er  to  the  original  pleading  has  been  disposed  of,  he 
cannot  make  the  filing  of  the  new  pleading  an  excuse  for  raising  points 
already  disposed  of  on  such  plea  or  demurrer.  Hence  he  can  then  only 
plead  or  demur  where  the  amendments  present  new  questions,  and  only 
10  such  new  questions. i* 

[e]  Effect  of  amendment. 

x\lthough  a  bill  which  has  been  amended  is  termed  an  amended  bill, 
"the  amendment  is  in  fact  esteemed  but  as  a  continuation  of  the  original 
bill,  and  as  forming  part  of  it,  for  the  original  bill  and  amended  bill 
constitute  but  one  record;  so  much  so  that,  when  an  original  bill  is  fully 
answered  and  amenaments  are  afterwards  made  to  which  defendant  does 
not   answer,   the    whole   recora   may   be  taken   pro   confesso   generally."i7 

2.Tudson  V.  Courier,  25  Fed.  705.  L.   ed.   854;    Blythe  v.    Hinckley,   84 

sOglesly  V  Attrill.  4   Woods,    114.  Fed.  246. 

14   Fed.  214.  lONeison  v.  Eaton,  66  Fed.  376,  378, 

^Hardin    v.    Bovd,   113   U.    S.    764,  13  C.  C.  A.  523;  Blvthe  v.  Hinckley, 

•i8  L.  ed.  1411,  5  Sup.   Ct.  Rep.  771.  84  Fed.  246,  and  cases  cited. 

See  also  Maynard  v.  Tilden,  28  Fed.  n  Nelson    v.    Eaton,    66    Fed.    376, 

«88.  378,  13  C.  C.  A.  523. 

sPendery  v.  Carleton,  87  Fed.  41,  i2Nelson    v.    Eaton,    66    Fed.    376, 

:]0  C.  C.  A.  510.  378,    13   C.   C.   A.   523. 

6Mills  v.   Scott,  43  Fed.  452.  laPost,  §  1007. 

7See  post,  §  1007.  i4l  Enclv.  PI.  &  Pr.  490. 

sFrench  v.   Hav,   22  Wall.  246,  22  ivFrencli    v.    Hay,    22    Wall.    246, 

L.   ed.   854:    Longworth   v.   Taylor,   1  22    L.    ed.    854;    Excelsior    P.    Co.    v. 

3IeLean.   514,  Fed.  Cas.  No.  8,491.  Brown,  74  Fed.  323;  Blythe  v.  Hinck- 

sFrench  v.   Hay,  22   Wall.   246,  22  lev.  84   Fed.   246. 

912 


Procedure]  BILLS    OF    REVIVOR.  S  9G0 

§  958.  Amendment  after  answer — special  replication  not  pei- 
missible. 
No  special  replication  to  any  answer  shall  be  filed.  But  if  an}' 
matter  alleged  in  the  answer  shall  make  it  necessary  for  the  plaintiff 
to  amend  his  bill,  he  may  have  leave  to  amend  the  same  with  or 
without  the  payment  of  costs,  as  the  court,  or  a  judge  thereof,  may, 
in  his  discretion  direct. 

45th  equity  rule,  promulgated  March  1842. 

Rule  11  of  the  equity  rules  of  18221  provided  that  ''no  special  replication 
to  an  answer  shall  be  filed,  but  by  leave  of  the  court,  or  one  of  the  judges 
thereof,  for  cause  shown;  and  if  any  matter  alleged  in  the  answer  shall 
make  it  necessary  for  the  plaintiff  to  amend  his  bill,  he  may  have  leave 
to  amend  the  same  with  or  without  costs,  at  the  discretion  of  the  court." 
Rule  45  supra  was  obviously  framed  iu  modification  of  this  earlier  rule. 
But  so  far  as  respects  amendment  of  the  bill  after  answer,  the  subject 
is  covered  bj'  the  first  portion  of  rule  29.2  That  rule  expressly  requires 
that  leave  to  amend  be  first  obtained; 3  though  if  filed  without  objection 
the  defect  is  waived.^  Rule  45  abolishes  the  special  replication  entirely; 5 
as  respects  both  answer  and  plea.6  An  amended  bill  or  special  replication 
is  not  necessary  in  order  to  avoid  the  effect  of  an  amended  answer  which 
is,  at  most,  only  a  more  extended  statement  of  the  grounds  of  defense 
previously  set  forth. 7 

§  959.     Permission  to  amend  lost  if  not  availed  of  by  the  next 
rule  day. 

If  the  plaintiff  so  obtaining  any  order  to  amend  his  bill  after 
answer,  or  plea,  or  demurrer,  or  after  replication,  shall  not  file  his 
amendments  or  amended  bill,  as  the  case  may  require,  in  the  clerk's 
office  on  or  before  the  next  succeeding  rule-day,  he  shall  be  con- 
sidered to  have  abandoned  the  same,  and  the  cause  shall  proceed 
as  if  no  application  for  any  amendment  had  been  made. 
.30th  equity  rule  adopted   March   1842. 

§  960.     Bills  of  revivor  and  proceedings  thereon. 

Whenever  a  suft  in  equity  shall  become  abated  by  the  deatli  of 
either  party,  or  by  any  other  event,  tlie  same  may  be  revived  by  a 

iSee  7  Wheat.  VI.,  5  L.  ed.  367.  Coleman    v.    Martin,   f!    Blatchf.    2!>1, 

2Ant.p,    ?    954.  Fed.   Cas.   No.   2.1980. 

sClements   v.   :Moore,   6   Wall.   299,        «See  post  .  §  1009.     ^Nlason  v.  Hart- 

18  L.  ed.  78C.  ford,  etc.  R.  R.  10  Fed.  3.34. 

4Tbid.  T Southern  P.  Co.  v.  United  States, 

sTavlor    v.    Benham.    5    Flow.    233,  IGSU.  S.  1,  42  L.  ed.  355,  IS  Sup.  Ct. 

12  L.  "ed.  131:    Wilson    v.    Stollev,  4  Rep.  18. 

Mrl.ean.    275.    Fed.    Cas.    No.    1.9(i3: 
Fed.  Proc— 58.  913 


I 


§   !u;o    [al  PROCEDURK   IN    EQUITY    CAUSES.  [Code   Fed. 

bill  of  ]'evivor  or  a  bill  in  the  nature  of  a  bill  of  revivor,  as  the 
circumstances  of  the  case  may  require,  filed  by  the  proper  parties 
entitled  to  revive  the  same,  vsrhich  bill  may  be  filed  in  the  clerk's 
office  at  any  time;  and  upon  suggestion  of  the  facts,  the  proper 
process  of  subpoena  shall,  as  of  course,  be  issued  by  the  clerk,  re- 
quiring the  proper  representatives  of  the  other  party  to  appear 
and  show  cause,  if  any  they  have,  why  the  cause  should  not  1)e  re- 
vived. And  if  no  cause  shall  be  shown  at  the  next  rule-<lay  whicli 
shall  occur  after  fourteen  days  from  the  time  of  the  service  of  the 
same  process,  the  suit  shall  stand  revived,  as  of  course. 
56th  equity  rule,  adopted  March  1842. 

[a]     Bills  of  revivor. 

There  are  also  Federal  statutory  provisions  respecting  revivor  in  Federal 
causes  generally. i"  As  suggested  by  the  above  rule  a  bill  of  revivor  is 
proper  whenever  by  death  some  party  to  a  suit  has  become  incapable 
of  prosecuting  or  defending,  or  abatement  results  from  "any  other  event" 
as  where  a  female  plaintiff  has  by  marriage  incapacitated  herself  from  su- 
ing alone.ii  Bill  of  revivor  is  necessary  where  a  suit  abates,  and  supple- 
mental bill  where  it  merely  becomes  defective.12  Such  a  bill  does  not 
commence  a  new  suit,  but  continues  the  old  one.i3  Being  a  continuance 
of  the  foinner  suit,  the  residence  and  citizenship  of  the  parties  introduced 
thereby  are  immaterial  if  jurisdiction  validly  attached  under  the  oriuiiml 
bill. 14  But  if  defendant  died  before  service  of  process  upon  him,  his  rep- 
resentatives or  heirs  can  only  be  brought  in  by  a  bill  in  the  nature  of  an 
original  bill. is  Bill  of  revivor  has  been  used  in  several  cases  where  the 
abatement  resulted  from  a  dissolution  of  a  corporation  which  was  party 
to  the  suit.i6  Privity  in  law  and  not  merely  in  estate  is  necessary.  Tbat 
is,  it  lies  only  where  there  is  some  one  who  represents  the  former  party 
such  as  an  heir  in  the  case  of  realty  or  the  executor  in  case  of  personalty, 
and  not  in  favor  of  a  devisee,  purchaser,  assignee  or  other  person  having 
merely  a  privity  of  estate.i'i'  A  bill  of  revivor  filed  after  a  lapse  of  twelve 
years  has  been  stricken  out. is  The  only  question  to  be  considered  on 
bill  of  revivor  after  death,  is,  who  is  the  executor  and  administrator,  or 

10 Ante,   8§   814.   815.  isUnited      States      v.      Fields.      4 

iiFitzpatrick  V.Domingo.  4  Wood^5.  Blatchf.  326.  Fed.  Cas.  Xo.  l.i.OSO. 

163,    14    Fed.    216.      See    Kennedv    v.  leHeiuTiiingwav  v.  Stansel.  106  U. 

Bank  of  St.  Georgia.  8  How.  610.  12  S.  399.  27  L.  ed.'245.  1   Sup.  Ct.  Ro].. 

L.    ed.   1218.  473:    Chester    v.    Life    Assn.    4    Fed. 

i2Post.  §§  960,  961.  487:     Criswold    v.    Hilton.    87    Fp<1. 

isClarke   v.    Matthewson.    12    Pet.  256. 

172,   9   L.   ed.    1041.  "Slack  v.  Walcott.  3  IMa-^on.  .'lOS. 

i4Clarke    v.    Matthewson.    12    Pet.  Fed.    Cas.    No.    12.932.    per   Story.  -T. 

172,  9  L.  ed.  1041;  Wlivtc  v.  Gibbes,  isHubbell    v.    Lankenau,   63   Fed. 

20  How.  542.  15  L.  ed."l016;   Brooks  881. 
V.  Laurent.  98  Fed.  647,  39  C.  C.  A. 
201.     sec  ante,  §  2  [u]. 

914 


Procedure]  BILLS  OF   REVIVOR.^  §  960   [c] 

who  is  the  heir,  when  that  is  ascertained  the  person  succeeds  by  operation 
of  law  to  the  whole  title  of  the  deceased.is  The  defendant  may  question 
the  heirship  or  representation  by  plea  or  answer,  but  no  answer  is  neces- 
sary if  the  heirship  is  not  intended  to  be  denied,  and  upon  mere  motion 
without  answer,  when  the  time  for  it  is  out,  the  cause  will  be  revived  as 
of  course. 2  0 

[b]  Bill  in  the  nature  of  bill  of  revivor. 

A  bill  in  the  nature  of  a  bill  of  revivor  is  available  to  those  who  have 
a  privitj'  in  estate  by  deed  with  the  original  party,  such  as  assignees, 
I)iirchasers,  and  devisees,  but  no  privity  in  law  which  would  constitute 
them  direct  representatives. »  It  lies  at  any  stage  of  the  proceeding  when 
abatement  occurs,  both  before  and  after  decree. 6  Such  a  bill  is  in  some 
aspects  original.  "When  a  party  claims  title  by  purchase  or  devise,  he 
introduces  a  new  title  not  previously  in  the  case,  and  which  is  controvertible, 
not  merely  by  the  defendants  in  the  bill,  but  also  by  the  heirs  at  law. 
As  to  these  parties  the  suit  is  original;  it  does  not  merely  revive  the  old 
suit,  but  it  states  new  supplementary  matters  calling  for  an  answer.  So 
far  then  as  it  states  such  matter  it  is  an  original  bill;  and  so  far  as  it 
seeks  to  revive  upon  that  matter  it  is  in  the  nature  of  a  bill  of  revivor.''^ 
But  as  a  transfer  of  an  interest  after  suit  brought  by  a  party  having  the 
recjuisite  diverse  citizenship  will  not  oust  the  jurisdiction, s  the  original 
aspects  of  such  a  bill  will  not  oust  the  jurisdiction  though  the  new  parties 
have  not  the  requisite  diverse  citizenship.9 

[c]  Bills  of  revivor  and  supplement. 

I'lic  authorities  recognize  the  existence  of  bills  of  "revivor  and  supple- 
nu'nt,"  and  "supplemental  bills  in  the  nature  of  bills  of  revivor,''i2  but 
there  seem  to  be  few  Federal  cases  in  which  either  of  these  phrases  is 
used  or  their  exact  significance  discussed. is  The  former  is  defined  as  a 
bill  which  revives  a  suit  after  abatement  and  also  supplies  a  defect  arising 
since  its  institution.!*     In  other  words  a  bill  of  revivor  and  supplement  is 

i^Slack  V.  Walfott.  3  Mason.  5)2,  ^Clarke    v.     Matthewsoii.     12     Pet. 

Fed.   (as.   Xo.    12.032,  per  Storv.  J.:  164.    9    L.    ed.    1041. 

Sbar<in    v.    Terrv.    13   Sawv.   387.   30  i2See    Storv    r>q.    PI.    ??    387.   027, 

Fed.  3.i3.               '                     '  Daniell.  Ch.  Pr.   1722.  1723. 

20Slack  V.  Walcott.  3  Mason.  512.  isSee  Shainwald  v.  Lewis.  09  Fed. 

513.  Fed.  Cas.  Xo.  12,932,  per  Story,  495:    Greenleaf  v.  Queen.  1    Pet.  148, 

J.  7  L.  ed.  85:  Tappan  v.  Smith.  5  Piiss. 

sShuk   V.   Walcott.   3  Mason.   508,  73,   Fed.  Cas.  Xo.    13.748:    Hazloton. 

512,  Fed.  Cas.  Xo.  12.932.  per  Story,  etc.   Co.  v.   Citizens  St.   Rv.  72   Feil. 

T.:    Sharon  v.  Terrv,   13   Sawv.  387.  320. 

30  Fed.  354.                "                    "  uStory.  Eq.  PI.  ?§  387.  027.     This 

GSIack  V.  Walcott,    3    Mason.  508.  is    perhaps    illustrated    bv    :\Iotal    S. 

512.  Fed.  Cas.  Xo.  12,932.  per  Story,  Co.  v.  Cramlall,  18  O.  G'.   1531.    Kc.l. 
J.  Cas.    Xo.    9.493p    where    a    complnin- 

"Slack    V.    Walcott,    3  Mason,  512,    ant  suing  for  infringement  assigned 

513,  Fed.  Cas.  Xo.  12,932,  per  Story,    his  patent  rights  to  a  firm  of  which 
J.  he    was    a    member    and    afterwards 

8See  ante.  §  2.  [u]  died. 

915 


§  901  I'ROCEDUKE    IN    EQUITY    CAUSES.  [Code  Fed, 

necessary  wlien  a  suit  has  bi'cume  both  "defective"  and  "abated."  A  sup- 
plemental bill  in  the  nature  of  a  bill  of  revivor  has  been  held  necessary 
where  a  trustee  defendant  died  and  it  was  sought  to  r«/\ave  against  the  new 
trustee  appointed  in  his  plaee.^5 

§  961.     Supplemental  bills  and  proceedings  thereon. 

Whenever  any  suit  in  equity  shall  become  defective  from  any 
event  happening  after  the  filing  of  the  bill  (as,  for  example,  by 
change  of  interest  in  the  parties), ^'^^  or  for  any  other  reason '^'^^"'^'^^ 
a  supplemental  bill"^^^  or  a  bill  in  the  nature  of  a  supplemental  bill 
may  be  necessary  to  be  filed  in  the  cause,  leave  to  file  the  same 
may  be  granted  by  any  judge  of  the  court  on  any  rule  day,  upon 
proper  cause  shown  and  due  notice  to  the  other  party.  And  if 
leave  is  granted  to  file  such  supplemental  bill,  the  defendant  shall 
demur,  plead  or  answer  thereto  on  the  next  succeeding  rule  day 
after  the  supplemental  bill  is  filed  in  the  clerk's  office,  unless  some 
other  time  shall  be  assigned  by  the  judge  of  the  court. "^^^ 
57th  equity  rule,  adopted  March,  1842. 

[a]     Revivor  and  supplement  distinguished. 

From  this  rule,  read  in  conjunction  with  the  56th  rule  it  appears  that 
bill  of  revivor  is  proper  when  a  suit  has  "abated"  and  supplemental  bill 
when  a  suit  has  merely  become  "defective."  The  distinction  between  sup- 
plemental bills  and  bills  of  revivor  is  therefore  the  distinction  between 
a  defective  suit  and  an  abated  suit.  That  distinction  is  thus  stated  by 
Story:  "If  by  any  means,  any  interest  of  a  party  to  the  suit  in  the  matters 
in  litigation  becomes  vested  in  another,  the  proceedings  are  rendered  de- 
fective, in  proportion  as  that  interest  affects  the  suit;  so  that,  although  the 
parties  to  the  suit  may  remain  as  before,  yet  the  end  of  that  suit  cannot 
be  obtained.  Thus,  for  example,  if  the  party  become  bankrupt  pendin^f 
the  suit,  then,  according  to  the  practice  of  chancery,  the  suit  will  be  held 
to  be  defective;  but  the  bankruptcy  does  not  cause  an  abatement.  And 
if  such  change  of  interest  is  occasioned  by,  or  is  the  consequence  of,  th(! 
death  of  a  party,  whose  interest  is  not  determined  by  his  death,  or  liy 
the  marriage  of  a  female  plaintiff,  the  proceedings  become  likewise  abated 
or  discontinued,  either  in  part  or  in  the  whole. "i 

[b]     Supplemental  bill  for  change  of  interest  pending  suit. 

A  change  of  interest  pending  suit  should  be  brought  before  the  court 
by  supplemental  bill. 3  Where  change  occurs  after  final  decree  the  trans- 
feree may  maintain   supplemental  bill   if  he  finds  it   necessary  to  invoke 

i5Greenleaf  v.  Queen,  1  Pet.  148,  3Hoxie  v.  Carr:  1  Rum.  173,  Fed. 
7  L.  ed.  85.  ('as.    Xo.    6.802;    Tappan    v.    Smith, 

iStory,  Eq.  PL  §  329.  5   Biss.   73,   Fed.   Cas.  No.    13,748. 

916 


Procedure]  SUI'l'LEMEN'TAL    BILLS.  §   901    [c] 

further  action  by  tlie  court. ■*  A  change  of  interest  arising  by  voluntary 
act  of  the  parties,  such  as  a  sale,  is  as  much  within  the  above  rule  as 
change  by  operation  of  law.s  The  transfer  of  complainants  interest  in  a 
patent  or  copyright  pending  an  infringement  suit  is  a  frequent  occasion  for 
a  proceeding  under  the  foregoing  rule. 6  The  bill  should  be  a  supplemental 
bill  where  the  transfer  of  interest  is  only  partial  and  the  transferer  still 
retains  an  interest;"  as  where  a  patent  right  is  transferred  pending  suit  for 
infringement  but  complainant  retains  the  right  to  accrued  damages.** 
But  it  is  properly  an  original  bill  in  the  nature  of  a  supplemental 
bill  where  the  entire  right  is  transferred  and  the  original  party  has  no 
further  interest  in  the  matter. 9 

[c]  Supplemental  bill  to  bring  in  facts  subsequent  to  commencement 
of  suit. 
Supplemental  bill  is  comrcouly  used  to  bring  before  the  court  mat- 
ters occurring  since  the  original  was  filedi2  although  the  cauce  could  often 
scarcely  be  said  to  be  defective  in  the  sense  of  the  foregoing  rule,  without 
it.  Such  matters  cannot  be  introduced  by  amendment,! 3  but  only  by  sup- 
plemental bill;  and  they  cannot  be  introduced  by  svipplemental  bill  after 
decree  where  cajiable  of  prior  ascertainment. 14  Formerly  supplemental 
bill  was  used  to  bring  in  matter  antedating  the  original  bill  which  was 
not  then  known,  but  amendment  is  now  the  simpler  method;  15  although 
if  a  supplemental  bill  is  necessary  for  some  purposes  a  coiEplainant  has 
been  permitted  to  incorporate  therein  matter  which  should  strictly  be 
amendment. 16  A  compromise  pending  suit  or  a  release  is  pi'operly  set  up 
by  supplemental  bill,i'^  though  if  a  party  fail  to  object  to  the  presentation 
of  the  matter  by  simple  petition,  the  error  is  not  available  on  appeal. i'^ 
The  extension  of  a  patent   pending  an  infringement  suit  is  properly  set 

4Secor    V.    Singleton,  41   Fed.  725.  Fed.   Cas.  No.  3.211;   Jenkins  v.  In- 

sHazleton,  etc.  Co.  v.  Citizens  St.  ternational  Bank,  127  U.   S.  489,  32 

Ry.   72   Fed.    325.  L.  ed.   189.  8  Sup.  Ct.  Rep.  1196. 

6Ross  V.  Fort  Wayne.  .58  Fed.  404;  isCopen   v.   Flesher,   1    Bond,   440, 

Baker  v.  Baker,  89' Fed.  073:   Davis  Fed.  Cas.  No.  3,211. 

V.   Smith.   105  Fed.  949.  i^Mosgrove     v.    Kountze,     4     Mc- 

'  Campbell   v.   New  York,    35   Fed.  Crary,  561,  14  Fed.  315. 

14:  Hoxie  v.  C'arr.  1   Sum.  173,  Fed.  it'See  Jenkins  v.  Eldridge.  3  Storv, 

Cas.    No.   6,802.  299.   Fed.   Cas.   No.   7.267;    Henrv  v. 

sDavis  V.  Smith,   105  Fed.  949.  Trav.    Ins.    Co.    45    Fed.    299;    Potts 

sCampbell   v.    New   York.    35    Fed.  v.  Creager.  71  Fed.  574. 

14:    Ross    v.    Fort    ^Yayne.    58    Fed.  i6Mellor     v.     Smither,     114      Fed. 

404:    Hazleton,   etc.    Co.   v.    Citizens'  116,    52    C.    C.    A.    64.     See   Nevada, 

St.  Ry.  72  Fed.  325:  Baker  v.  Baker.  N.   Co.   v.   National   N.    Co.   86    Fed. 

89    Fed.    673;    Miller    v.    Rogers,    29  486. 

Fed.  401.  iTCobui-n  v.  Cedar,  etc.  Co.  138  U. 

i2Shoflield.    etc.    Co.    v.    Newman,  S.    196.   34   L.   ed.    876.    11    Sup.    Ct. 

77   Fed.   787.  23  C.   C.  A.  459;   Ken-  Rep.   258.     Supplemental   bill   is  the 

nedy  v.  State  Bank,  8  How.  610.  12  proper  mode  of  pleading  a  curative 

L.   ed.    1219;    Jenkins  v.   Eldredge.   3  deed    executed   pending   suit;     Reeve 

Story.     2m.     Fed.     Cas.     No.     7.267:  v.  Northern  Car  etc.  Co.  141  Fed.  821. 

Elect  A.  Co.  V.  Brush  E.  Co.  44  Fed.  isYeazic  v.  Williams,  3  Story,  54, 

607;   Copen    v    Flesher,  1   Bond,  440.  Fed.  Cas.  No.  16,906. 

917 


i  ;m;i    [d] 


i'KOCEDUUE    IN    EQUITY    CAUSES. 


[Code  Fed. 


Jurtli  by  supplemental  bill,  but  it  is  otherwise  when  a  reissue  is  obtained. i'* 
A  supplemental  bill  embodying  new  matter  has  been  held  not  sustainable 
whore  the  original  was  detective  and  afforded  no  ground  for  proceeding; 20 
or  when  the  new  matter  went  to  defeat  and  not  sustain  plaintiff's  cause  of 
action,!  or  where  it  changed  the  character  of  the  suit; 2  or  was  antagonistic 
to  the  original; 3  or  had  no  connection  with  the  substance  of  the  original. i 
So  also  it  has  been  held  that  allegations  of  duress  and  threats  respecting  the 
conduct  of  the  suit  are  not  proper  matters  for  supplemental  bill.o 

[d]  —  after  interlocutory  or  final  decree. 

Supplemental  bill  is  sometimes  proper  after  decree  interlocutoryS  or 
linal.io  Thus  it  is  permitted  where  a  party  seeks  the  modilicaiion  or  an- 
nulment of  a  decree  for  newly  discovered  evidence  and  is  then  termed  a 
supplemental  bill  in  the  nature  of  a  bill  of  review.n  So  also  it  is  used  af- 
ter decree  for  the  purpose  of  carrying  it  into  efi'ect,  as  where  a  foreclosure 
purchaser  is  obliged  to  seek  the  aid  of  the  foreclosing  court  in  securing  the 
fruits  of  his  purchase.12 

[e]  Procedure  upon  supplemental  bill. 

Where  a  party  petitions  for  leave  to  file  a  supplemental  bill,  the  peti- 
tion need  not  contain  the  intended  new  averments,  although  it  should  show 
the  ground  upon  which  the  relief  is  asked.  15  Counter  affidavits  must  be 
examined  a,nd  considered  by  the  court.16  Permission  to  file  is  usually 
granted  where  probable  cause  appears  and  without  exhaustive  consideration 
of  the  merits.1'7  But  it  is  discretionaryis  if  leave  to  file  is  not  obtained 
defendant  should  move  to  strike  it  out  and  demur.  19     Application   after 


1;' Reedy  v.  Scott,  23  Wall.  364.  23 
L.  ed.  109;  Jones  v.  Barker,  11  Fed. 
o!>7 ;  Fry  v.  Quinla.n,  13  Blatchf.  205, 
Fed.  Cas.  No.   5,140. 

20  Putney  v.  Whitmire,  66  Fed. 
385 :  N.  Y.  S.  &  T.  Co.  v.  Lincoln  St. 
Ry.  74  Fed.  67;  Mellor  v.  Smither, 
114  Fed.  116,  52  C.  C.  A.  64. 

lElectric  A.  Co.  v.  Brush  E.  Co. 
44  Fed.  607. 

28nead  v.  McCoull.  12  How.  407, 
13  L.  ed.  1043;  Maynard  v.  Green, 
30  Fed.  643 ;  Electric  A.  Co.  v.  Brush 
E.  Co.  44  Fed.  607. 

3:\laynard  v.  Green.  .30  Fed.  643. 

4 Minnesota  Ry.  v.  St.  Paul  Co.  6 
Wall.  746,  18  L.  ed.  856.  See  Hig- 
ginson  v.  Chicago,  etc.  Ry.  102  Fed. 
197.  200,  42  C.  C.  A.  2.54. 

sLvster  v.  Stieknev,  4  INIcCrarv, 
109.  "12  Fed.  609. 

flRaker  v.  Baker,  89  Fed.  873;  Mu- 
nici])al  S.  Co.  v.  Gamewell,  etc.  Co. 
77  Fp  i.  452. 

i»Voorliies  v.  Blanton,  9'6  Fed.  497. 
Central   T.    Co.   v.   Western,    etc.    R. 

91 


R.  89  Fed.  24;  Hazleton  T.  S.  Co. 
V.  Citizens  St.  Ry.  Co.  72  Fed.  325; 
Secor  V.  Singleton,  41  Fed.  725. 

ii^NIunicipal  S.  Co.  v.  Gamewell. 
etc.  Co.  77  Fed.  453.  But  it  is  held 
that  where  the  decree  is  interlocutory 
the  part}-  should  petition  for  rehear- 
ing for  newly  diseovered  evidence 
and  not  file  such  a  bill ;  Potts  v. 
Creager,  71  Fed.  574. 

i2Central  T.  Co.  v.  Western,  etc. 
R.  R.  89  Fed.  24,  28.  See  also  as 
to  ancillary  proceedings  to  construe 
or  enforce  a  decree.     Ante,  §  3  [  ]. 

isParkhurst  v.  Kinsman,  2  Blatclif. 
72,   Fed.  Cas.  No.  10,758. 

i6Blandv  v.  Griffith.  6  Fish.  Pat. 
Cas.    434,  ■  Fed.    Cas.    No.    1,5:50. 

I'Parkhurst  v.  Kinsman,  2  Blatchf. 
72,  Fed.  Cas.  No.  10,758;  Oregon 
T.  Co.  v.  Northern  P.  Co.  32  Fed. 
428. 

isSheffield,  etc.  Co.  v.  Newman,  77 
Fed.  787,  23  C.  C.  A.  450. 

I'JHenrv  v.  Travelers  Ins.  Co.  45 
Ked.  299, '303. 


froceduie]         CROSS   BILLS    FUR    DISCOVERY   AND    RELIEF.  §   963    [a] 

a  delay  of  eighteen  months  has  been  denied. 20  Supplemental  bill  filed  five 
years  after  notice  of  a  sale  and  after  final  decree  has  been  held  too  late.i 
No  new  subpoena  is  necessary  except  against  parties  brought  in  by  such 
bill.-  A  bill  filed  as  original  and  in  a  separate  suit  may  sometimes  be 
treated  as  a  supplemental  bill  in  a  penciing  suit  between  the  same  parties. s 
A  bill  filed  as  supplemental  has  been  treated  as  a  supplemental  answer 
to  a  cross  bill.*  A  supplemental  bill  having  no  relation  to  the  original 
should  be  dismissed.  5  A  defense  to  the  original  bill  set  up  and  overruled 
is  not  available  against  the  supplemental  bill. 6  The  citizenship  of  parties 
is  immaterial  in  a  supplemental  bill  though  jurisdiction  was  originally 
invoked  upon  grounds  of  diverse  citizenship.'^  The  defendants  have  a  right 
to  au.swer  a  supplemental  bill,  as  provided  by  the  above  rule.s 

§  962.     Bills  of  supplement  and  revivor  need  not  repeat  allega- 
tions of  original. 

It  shall  not  be  necessary  in  any  bill  of  revivor  or  supplemental 
bill  to  set  forth  any  of  the  statements  in  the  original  suit,  unless 
til"  special  circumstances  of  the  case  may  require  it. 
oAth  equity  rule,  adopted  March  1842. 
Tliis  rule  is  from  the  English  orders  in  chancery  of  1841.10 

§  963.     Cross  bills  for  discovery  and  for  relief. 

Where  a  defendant  in  equity  files  a  cross  bill  for  discovery  only 
against  the  plaintiff  in  the  original  bill,  the  defendant  to  the 
original  bill  shall  first  answer  thereto  before  the  original  plaintiff 
shall  be  compellable  to  answer  the  cross  bill.  The  answer  of  the 
original  plaintiff  to  such  cross  hill  may  be  read  and  used  by  the 
party  filing  the  cross  bill  at  the  hearing,  in  the  same  manner  and 
under  the  same  restrictions  as  the  answer  praying  relief  may  now 
be  read  and  used. 

72nd  equity  rule,  adopted  March,  1842. 

[a]     This  rule  in  general. 

So  far  as  the  reported  cases  show,  tliis  rule  h;is   seldom  re([uired  inter- 

20Blandv  v.   Griffith.    6   Fish.    Pat.  ^Minnesota    Rv.    v.    St.    Paul.    Co. 

Cas.   4.34.  Fed.  Cas.  No.   1..530.  (I  Wall.  74(5.  18  L.  ed.  8,56. 

iTTenrv  v.  Trav.   Ins.   Co.   4.5   Fed.  r.p.-ntlarge   v.  Pentlarge,  22  Blatchf. 

290.     See    Miller    v.    Clark.    49.    Fed.  120.  22  Fed.  410. 

60'),    holding   two   months    delay    not  6 Miller    v.    Rogers,    29    Fed.    401  ; 

unreasonable.  Minnesota  Co.  v.  St.  Paul  Co.  2  Wall. 

^Shaw  v   Bill,  m  U.   S.    14,   24   L.  609.  17  L.  ed.  886. 

ed.  .3,33;  Mackintosh  v.  Flint,  34  Fed.  TAnte.  §  3. 

582.  sperkins  v.  Hendryx.  31    Fed.  523. 

sFlectric  A.    Co.  v.   Brush   E.   Co.  loQrder  47.     See  ante,  §  802  [b] 
44   Fed.   607. 

919 


§  9G3    [b]  PROCEDrRE   IN   EQUITY    CAUSES.  [Code   Fed. 

pretatioii  in  court.  C'loss  l)ills  for  discovery  are  much  less  frequently 
used  now  than  in  1842  when  tlie  equity  rules  were  adopted;  because  plain- 
tiff is  now  examinable  as  a  witness.i*  The  decided  cses  have,  however, 
established  many  principles  respecting  the  nature  and  use  and  procedure 
upon  cross  bills,  which  require  notice. 

[b]     Nature  and  uses  of  cross  till  in  general. 

A  cross  bill  is  a  bill  "brought  by  a  defendant  in  a  suit  against  the  plain- 
tiff in  the  same  suit,  or  against  other  defendants 1 5  in  the  same  suit,  or 
against  both,  touching  the  matters  in  question  in  the  original  bill."'i« 
As  indicated  by  the  above  rule,  cross  bill  may  be  used  to  obtain  a  dis- 
covery or  to  obtain  full  relief  to  all  parties  touching  the  matters  of  the 
original  bill.i'?  Formerly  the  plaintill  was  not  examinable  as  a  witness, 
so  that  cross  bill  for  discovery  was  a  very  important  right  of  the  de- 
fendant and  frequently  resorted  to  whereas  it  is  now  unnecessary.!  s  The 
cross  bill  itself  must  be  equitable  in  character :  i 'J  not  merely  a  claim  for 
which  there  is  adequate  remedy  at  law. 20  In  Federal  equity  practice 
a  defendant  must  use  cross  bill  and  not  the  modern  statutory  counterc^aini.^ 
It  is  auxiliary  in  character;*  and  citizenship  of  parties  thereto  is  im- 
material.5  It  must  pertain  to  and  grow  out  of  the  maf^ers  in  the  original 
bill  and  hence  should  not  introduce  new  matters. 6  But  the  mere  fact  that 
a  matter  belongs  to  the  same  general  subject  as  the  original  bill  is  not 
sufficient  to  authorize  cross  bill  tliereon.'  It  l>.as  been  said,  and  repeated  in 
many  cases,  that  new  parties  may  not  be  made  by  cross  bills,  because  tlie 

i4See  Heath  v.  Erie  Ev.  9  Blatchf.  ;31  Fed.  -iS;]:  Morgans,  etc.  Co.  v.  Tex- 

316.  Fed.  Cas.  No.  6..307.  as  C.  Rv.   137   U.   S.   171,   34  L.  ed. 

i5See  Veach  v.  Rice.  131  U.  S.  317.  G25.   11    Sup.   Ct.   Rep.   Gl ;    Peay  v. 

33  L.  ed.  163.  9  Sup.  Ct.  Rep.  730.  Schenck  1  Woolw.  175,  Fed.  Cas.  Xo. 

iGStory  Eq.  PI.   §  389.     Shields  v.  12450. 
Barrow.  17  How.  145,  15  L.  ed.  158:        c Avers  v.  Carver,  17  How.  595.  15 

Morgans,  etc.  Co.  v.  Texas.  C.  Rv.  137  L.  ed'.  779:  Cross  v.  De  Valle.  1  Wall. 

U.   S.   201,   11    Sup.   Ct.  Rep.   61.   34  14.  17  L.  ed.  515:  Ex  parte  Railroad. 

L.  ed.  636 :  Rubber  Co.  v.  Goodyear,  95  U.  S.  225.  24  L.  ed.  355 ;  Railway 

9  Wall.   809.   19  L.  ed.   587;   Weaver  v.   United  States,   101   U.    S.   641,   25 

V.  Alter.  3  Woods,  154,  Fed.  Cas.  No.  L.   ed.   1074:    Ayers  v.    Chicago,   101 

17.308:    Book   v.    Justice   M.    Co.   58  U.  S.  187.  25  L.  ed.  838:  Heath  v.  Erie 

Fed.  831 :   Sprinsehl  M.  Co.  v.  Barn-  Rv.    9    Blatchf.    316.    Fed.    Cas.    No. 

ard.  etc  Co.  81  Fed.  261.  26  C.  C.  A.  6,.307 :   Forbes  v.  R.  R.  Co.  2   m  oods. 

389.  323.    Fed.    Cas.    No.    4.926;    Goff    v. 

I'Storv,  Eq.   PI.   §   389.  Kelly,  74  Fed.  327:  Lautz    v.  Gordon. 

isHeath    v.    Erie    Rv.    9    Blatchf.  28  Fed.  264.     See  Bowker  v.  United 

316.  Fed.  Cas.  No.  6.307.  States.  186  U.  S.  141.  46  L.  ed.  1093. 

1 9 Jackson  V.  Simmons.  98  Fed.  768,  22    Sup.    Ct.   Rep.   802:    Fidelitv   Co. 

39  C.  C.  A.  514.     But  see  North,  etc.  v.   ^Mobile   St.   R.    Co.    53   Fed.    852: 

Co.  v.  Lathrop,  70  Fed.  429.  17  C.  C.  Gilmore  v.  Bort,  134  Fed.  661. 
A.    175.  TRubber  Co.  v.  Goodvear,  9  Wall. 

20Lautz  V.  Gordon.  28  Fed.  264.  SIO.  19  L.  ed.  587.     But  see  Morgans. 

3Brande  v.  Gilchrist.  18  Fed.  465.  etc.   Co.   v.   Texas   C.  Rv.   137   U.    S. 

4Cross  V.  De  Valle.  1  Wall.  14.  17  201.  202,  34  L.  ed.  635.*6.36.   11   Sup. 

L.  ed.  515:  Avers  v.  Chicago.  101  U.  Ct.  Rep.  61:  Sutherland  v.  Lake.  etc. 

S.    187.   25  L."  ed.   838.  Co.  1  Cent.  Law  J.  127,  Fed.  Cas.  No. 

5First  Nat.  Bank  v.  Salem,  etc.  Co.  13.643. 

920 


Procedure] 


CROSS  BILLS   FOR  DISCOVERY   AND   RELIEF. 


§  963   [cl 


detendaiit  has  another  remedy  by  objection  for  nonjoinder  in  the  original 
bill.s  But  this  rule  is  denied  by  other  cases  which  aliinn  the  right  of  a 
defendant  to  make  new  parties  where  tliey  are  necessary  to  affirmative  re- 
lief touching  a  matter  in  question  in  the  original  bill. 9  Cross  bill  is  neces- 
sary where  defendant  seeks  affirmative  relief  against  pliiiitiff,io  or  against 
a  codefendant.il  But  matter  cannot  be  litigated  betw(?eu  defendants  by 
Avay  of  cross  bill,  which  is  foreign  to  the  original  bill;i^  or  unless  neces- 
sary to  a  complete  decree  on  the  original. 1 3  The  general  rule  is  that  the 
court  cannot  decree  affirmatively  in  defendant's  favor  without  it;!*  al- 
though to  this  there  are  certain  exceptions.is  Cross  bill  for  discovery  has 
been  used  to  ascertain  whether  plaintiff  was  a  real  or  nominal  party.i^ 

[c]     Instances  of  its  use. 

In  a  suit  to  set  aside  an  agreement  for  a  conveyance,  the  latter  cannot 
be  established  without  a  cross  bill  by  defendant. i  In  suit  to  quiet  title, 
cross  bill  to  have  the  other  title  declared  voids  or  a  fraudulent  conveyance 
set  asideS  is  proper.  On  bill  to  enjoin  execution  sale  defendant  may  main- 
tain a  cross  bill  to  have  the  judgment  declared  a  lien.*  Defendant  in  a 
foreclosure  suit  has  been  permitted  by  cross  bill  to  claim  penalty  for  usu- 
rious interest. 5  In  suit  to  establish  title  through  a  certain  deed,  cross  bill 
may  set  up  a  trust  in  tliat   deed  in  defendants  favor.s     A  proceeding  to 


^Shields   v.   Barrow.   17   HoW'.   145, 

15  L.  ed.  158.  163.  Eeaffirmed  in: 
Randolph  v.  Robinson.  20  Fed.  Cas. 
262:  Adelbert  Coll.  v.  Toledo,  etc. 
Rv.  47  Fed.  8*6:  Gregorv  v.  Pike, 
67  Fed.  845.  15  C.  C.  A  33:  Thrus- 
ton  V.  Big,  etc.  Co.  86  Fed.  485. 

5'Brandon  ^Ifg.  Co.  v.  Prime,  14 
Blatehf.  374.  Fed.  Cas.  Xo.  L810; 
Mercantile  T.  Co.  v.  Atlantic,  etc. 
Ry.  70  Fed.  525.  See  Hildebrand  v. 
Beasley,  7  Heisk.  123;  Kanawha 
Lodge    V.    Swann.    37    W.    Va.    178, 

16  S.  E.  462. 

loCarnochan  v.  Christie,  11  ^^Tieat. 
466,  467,  6  L,  ed.   516. 

iiUnited  States  v.  rnion  Pac.  R. 
R.  f)8  U.S.  612,25  L.  ed.  143:  Nelson 
V.  I^wndes  Co.  93  Fed.  538.  35  C 
C.  A.  419. 

i2Veach  v.  Rice.  131  U.  S.  317.  33 
L.  ed.  163,  9  Sup.  Ct.  Rep.  730. 

i3Putnam  v.  New  Albanv.  4  Biss. 
365.  Fed.  Cas.  No.  11 .481 :  "Stuart  v. 
Harden.  72  Fed.  402.  18  C.  C.  .i.  618; 
Thruston  v.  Big  Stone  G.  Imp.  Co. 
86  Fed.  484:  Oofl'  v.  Kellv.  74  Fed. 
327 :  Springfield  v.  Barnard,  &  L,  M. 
Co.  81    Fed.  261.  26  C.  C.  A.  389. 

1 '•Weaver  v.  Alter,  3  Woods.  152, 
Fed.   Cas.  No.   17.308. 

isUnited  States  v.  Union  P.  R.  R. 

9 


m  U.  S.  612,  25  L.  ed.  143;  Wood 
v.  Collins,  60  Fed.  139,  8  C.  C.  A. 
522;  Chapin  v.  Walker,  2  McCrary, 
175,  6  Fed.  704;  "RTiite  v.  Bower,  48 
Fed  186;  Meissner  v.  Buck,  28  Fed. 
161,  E.  g.  in  suits  for  account,  decree 
may  go  for  a  balance  found  due  de- 
fendant, without  anv  cross  bill.  See 
Story,  Eq.  PI.  §  394,  note  4:  and  in 
suits  for  specific  performance,  per- 
formance may  be  decreed  in  conform- 
itv  with  the  contentions  of  defendant 
w'ithout  cross  bill.  Story,  Eq.  PI.  § 
394.  Northern  R.  R.  v  Ogdensburg. 
etc.  R.  R.  18  Fed.  815  (see  20  Fed. 
347);  Bradford  v.  Union  Bank,  13 
How.  57.  14  L.  ed.  50. 

isVoun^  v.  Pott.  4  Wash.  C.  C. 
521.  Fed.  Cas.  No.  18,172. 

iCarnochan  v.  Christie,  11  Wheat. 
466.  467.  6  L.  ed.  516. 

sSchenck  v.  Peay,  1  Woolw.  175, 
Fed.  Cas.  No.  12,4.50. 

sRemer  v.  McKay,  38  Fed.  164. 

^Chicago,  etc.  Rv.  v.  Third  Nat. 
Bank.  134  U.  S.  287.  288.  33  L.  ed. 
900.    10   Sup.   Ct.  Rep.   550. 

^Weatliersbee  v.  American  F.  L. 
Co.  77   Fed.  523. 

GKingsburv  v.  Buckner.  134   U,   S. 
677.  33  L.  ed.  1047,  10  Sup.  Ct.  Rep- 
(•.38. 
21 


963   [d] 


ritocKr»uRK  IX  equity  causes. 


[Colp  red. 


Ijtain  tlie  appointment  of  a  new  trustee  has  been  deemed  to  justify  cross 
hill  by  the  beneficiaries  for  accounting,  construction  of  the  trust,  eic.i 
in  infringement  suit  defendant  may  by  cross  bill  establish  his  own  equitable 
title; 8  but  may  not  himself  allege  infringement. ^  And  in  a  trustee's  fore- 
closure suit  bondholders  cannot  by  cross  bill  claim  relief  for  his  alleged 
maladministration  of  the  trust. lo 

[d]     Filing  and  proceedings  upon. 

In  general,  it  is  optional  with  a  defendant  to  file  a  cross  bill  or  seek 
independent  relief; is  and  the  filing  of  cross  bill  will  not  be  compelled.is 
It  cannot  be  filed  by  a  stranger  to  the  litigationi"  unless  permitted  to  in- 
tervene.is  Cross  bill  cannot  be  filed  until  the  original  is  answered.i''  The 
old  rule  was  that  a  cross  bill  should  be  filed  before  the  taking  of  testimony 
upon  the  original  bill  as  closed,  unless  some  new  matter  such  as  a  release 
arose  afterwards. 20  But  courts  are  now  more  liberal  in  permitting  them 
at  a  later  stage  of  the  proceedings  to  give  defendants  the  benefit  of  a  de- 
cree to  which  the  facts  show  him  entitled;  2  though  not  to  reopen  a  case  for 
the  taking  of  additional  testimony. 2  It  is  a  matter  within  the  dis- 
cretion of  the  trial  court. *  A  cross  bill  has  been  entertained  after  answer 
though  filed  for  the  purpose  of  preventing  a  dismissal  of  the  litigation  by 
plaintiff.s  The  filing  of  a  cross  bill  after  the  original  has  been  heard  and  its 
merits  passed  upon  is  improper. 6  It  is  proper  for  the  trial  court  to  refuse 
to  permit  a  cross  bill  which  would  entail  very  lengthy  and  tedious  investi- 
gations not  strictly  relevant  to  the  matters  in  issue  under  the  original  bill. 7 
A  cross  bill  mnust  narce  defendants,  process  is  necessary  thereon  and  it 
must  be  served. 8     But  substituted  service  is  permissible  as  to  parties  al- 


'Hogg  v.   Hoag,   107   Fed.   807. 

"Brandon  Mfg.  Co.  v.  Prime,  14 
Blatchf.    371,  Fed.  Cas.  No.  1,810. 

sStonemetz  Co.  v.  Brown  Co.  46 
Fed.  851. 

loGasquet  v.  Fidelity,  etc.  Co.  57 
Fed.  80,  6  C.  C.  A.  253. ' 

isSharon  v.  Hill,  10  Sawy.  394,  22 
Fed.  28;  Washburn,  etc.  Co.' v.  Scutt, 
22  Fed.  711. 

leShields  v.  Barrow.  17  How.  145. 
15  L.  ed.  158. 

ivThruston  v.  Big  S.  G.  Co.  86  Fed. 
484:  Gregorv  v.  Pike,  G7  Fed.  837, 
15  C.  C.  A.  .33.  See  Bronson  v.  Rail- 
road. 2  Wall.  283,  17  L.  ed.  725. 

18  See  Dickerman  v.  N.  T.  Co.  80 
Fed.  456,  25  C.  C.  A.  549;  Farmers 
L.  &  T.  Co.  V.  San  Diego  C.  Co.  40 
Fed.  105. 

IS  Allen  V.  Allen,  Hempst.  58.  Fed. 
Cas.  Xo.  18,223.     See  the  rule  supra. 

2  0Xeal  V.'  Foster,  13  Saw  v.  236,  34 
Fed.  499. 


2See  Xeal  v.  Foster;  Morgans,  etc. 
Co.  V.  Texas,  C.  Rv.  137  U.  S.  201, 
34  L.  ed.  625,  11  Sup.  Ct.  Rep.  61. 

sRogers  v.   Riessner,   31    Fed.   5iM. 

4]\Iorgans,  etc.  Co.  v.  Texas  C.  Rv. 
137  U.  S.  201,  34  L.  ed.  625,  11  Sup. 
Ct.    Rep.    61. 

sPullmans  P.  Co.  v.  Central  T.  Co. 
49  Fed.  261. 

GBronson  v.  Railroad,  2  Black,  532, 
17  L.   ed.  359. 

"See  Harrison  v.  Perea.  168  U.  S. 
.320,  42  L.  ed.  481,  18  Sup.  Ct.  Rep. 
129. 

sWashington  R.  R.  v.  Bradlev>,  10 
Wall.  .302,  303,  19  L.  ed.  894;  ^^'ood 
V.  Collins.  60  Fed.  142,  8  C  C.  A. 
525:  Hill  v.  Groeeiy  Co.  78  Fed.  21, 
23  C.  C.  A.  624;  Turner  v.  Southern 
Home,  etc.  Assn.  101  Fed.  315,  316, 
41  C.  C.  A.  379:  Commercial  Bank  v. 
Sandford,  103  Fed.  OS;  Lowenstein 
V.  Glidewell,  5  Dill.  325,  Fed.  Cas. 
Xo.  8,575. 


922 


rroceilure]         CREDITOU'S    BILL    AGAINST    STOCKUOLDLKS.  s   i  • -i 

ready  in  court.y  The  original  cause  will  not  be  heard  until  the  cross 
bill  is  answered. 10  A  cross  bill  which  is  without  effect  after  the  dis- 
missal of  the  original  bill,  should  be  dismissed.!!  But  the  mere  dismissal 
i  ilic  original  Inil  does  not  dispose  of  a  cross  bill  seeking  affirmative  re- 
lief.12  Although  it  is  otherwise  where  the  cross  bill  sets  up  only  defensive 
matters. 13  Where  the  cross  bill  and  answers  are  tiled,  a  decree  disposii; 
of  the  whole  case  should  settle  the  issues  raised  in  them.i^  Sometimes  a 
final  decree  disposing  of  the  entire  litigation  may  be  drawn  upon  the  lines 
of  the  cross  bill. is  An  answer  to  a  cross  bill  filed  by  a  person  not  named 
in  the  bill  nor  admitted  as  a  defendant  will  be  stricken  out.ie  When 
cross  bill  neither  seeks  discovery  nor  affirmative  relief  it  may  be  dismissed;!" 
though  courts  have  sometimes  disregarded  the  circumstance  that  a  plead 
ing  is   improperly  termed  a  cross  bill.is 

[e]     Permission  to  file. 

It  is  said  that  cross  bill  may  be  filed  without  leave  of  court  and  the 
([uestion  of  its  propriety  be  raised  later  by  demurrer.2  This  would  seem 
correct  as  respects  cross  bill  prior  to  heai'ing  or  taking  of  testimony,  but 
where  sought  at  a  later  time  it  would  certainly  be  the  better  practit-' 
to  obtain  leave. 3  Leave  must  be  obtained  where  strangers  seek  to  intervene 
and  file  a  cross  bill;^  though  the  proceeding  may  be  entertained  without 
it;»  and  the  leave  granted  may  be  withdrawn  where  the  cross  bill  is  not 
properly  germane. 6   . 

§  964.     Creditors  bill  against  national  bank  stockholders. 

When  any  national  banking  association  shall  have  gone  into 
liquidation  under  the  provisions  of  section  five  thousand  two  hun- 

oSee   Fidelity,   etc.   Co.   v.   Mobile,  isGilmore    v.    Bort,    134  Fed.    662. 

St.   Ev.   53   Fed.   850,   852;    Segee  v.  and  cases  cited. 

Thomas.  3  Blatchf.  11,  Fed.  Cas.  No.  i4Moore    v.   Huntington,    17    Wall. 

12.633:    Stonemetz  v.    Brown  Co.  46  417,  21  L.  ed.  642. 

Fed.     851:     Heath     v.     Erie    Rv.    9  isBlvthe  v.  Hinckley,  84  Fed.  228. 

Blatchf.    316,     Fed.    Cas.    No.     *6,307  See  also  Blythe  Co.  v.  Bankers  Tns. 

( where  the   motion   was    for   substi-  Co.  147  Cal.  82,  81  Pac.  281. 

tuted     service!.       But     see     contra,  isPutnam  v.  New  Albany,  4  Biss. 

Websted  L.  Co.    v.    Short,    10  0.  G.  365,  Fed.  Cas.  No.  11,481. 

1019.   Fed.   Cas.   No.   17.343;   Sawyer  iTAmerican,  etc.   Co.  v.  Marquam, 

V.  Gill,  3  Wood.  &  M.  97,  Fed.  Caji.  62   Fed.   960. 

No.   12.399.  isSeo   Lavis   v.   Consumers   B.    Co. 

10 Young    V.    Pott.    4   Wash.    C.    C.  106  Fed.  435. 

521,  Fed.  Cas.  No.  18.172.  2Neal  v.  Foster,  13  Sawy.  236,  34 

1  i:\Iinncsota  PvV.    v.    St.   Paul   Co.  Fed.  496. 

()  Wall.  747,  18  L.  ed.  856.  sNorthern   R.  Co.  v.   Ogdensburgli, 

i2Barnard    v.    Hartford,    etc.    Ry.  etc.  R.  R.  20  Fed.  347:  Brush  E.  Co. 

Fed.  Cas.  No.  1,003:  Jackson  v.  Sim-  v.  Brush  S.  Co.  43  Fed.  701. 

mons,  98  Fed.   768,  30  C.  C.  A.  514.  4Dickerman   v.   N.  T.   Co.  80   Fed. 

Defendant  may  be  entitled  to  decree  456.  25   C.   C.  A.  549. 

pro  confesso  on  his  cross  bill :   Lowen-  sOsborne  v.  Barge.   30  Fed.  805. 

Ht*in   V.   Glidewell,  5  Dill.   325,  Fed.  eDiekerman  v.   N.   T.   Co.  80  Fed. 

Cas.  No.  8,575.  450,  25   C.  C.  A.  549. 

923 


§   <JU5  I'KOCEDUKE    IN    HQL'ITY    CAUSES.  [Code   Fed. 

(li'ed  and  twenty  of  said  |i.  o.,,  the  revised]  statutes,  the  individual 
liability  of  the  shareholders  provided  for  by  section  fifty-one  hun- 
dreds and  fifty-one  of  said  statutes  may  be  enforced  by  any  creditor 
of  said  association  by  bill  in  equity  in  the  nature  of  a  creditor's 
1)111,  brought  by  such  creditor  on  behalf  of  himself  and  of  all  other 
creditors  of  the  association,  against  the  shareholders  thereof,  in 
any  court  of  the  United  States  having  original  jurisdiction  in 
equity  for  the  district  in  which  such  association  may  have  been 
located  or  established. 

§  2  of  act  June  30,  1876,  c.  156,  19  Stat.  63,  U.  S.  Comp.  Stat.  1901, 
p.   3509. 

The  act  of  1882  limiting  Federal  jurisdiction  over  national  banks  did 
not  oust  the  jurisdiction  conferred  by  this  provision.''  It  is  unnecessary  tlnit 
the  creditor  first  obtain  judgment  at  law.  Such  a  bill  is  not  multifarious 
because  seeking  to  enforce  the  liability  and  apply  the  proceeds. 8 

§  965.     Limit  to  taxable  costs  on  bills  in  equity. 

In  order  to  prevent  unnecessary  costs  and  exj^enses,  and  to  pro- 
mote brevity,  succinctness,  and  directness  in  the  allegations  of  bills 
.  .  .  the  regular  taxable  costs  for  every  bill  .  .  .  shall  in 
no  case  exceed  the  sum  which  is  allowed  in  the  State  court  of 
chancery  in  the  district,  if  any  there  be ;  but  if  there  be  none,  then 
it  shall  not  exceed  the  sum  of  three  dollars  for  very  bill.  .  .  . 
25th  equity  rule,  promulgated  ilarch,  1842. 

The  rule  also  includes  taxable  costs  on  answers.9 

TGeorge  v.  Wallace,   135  Fed.  2S6,  v.  Weeks,  203  U.  S.  ,  51  L.  ed 

08  C.  C.  A.  40.     Such  a  suit  is  also  (p.  69  of  advance  op.). 

deemed    one    arising    under    Federal        sWvman  v.  Wallace,  201  U.  S.  230. 

laws.  Ibid.    Suit  for  rent  against  the  50  L.'ed.  738,  26  Sup.  Ct.  Eep.  495. 

agent  for  the  shareholders  of  an  in-        Ibid. 

solvent  national  bank  is  one  to  wind        sPost,   §    1009. 

up  its  affairs:     International  T   Co. 


924 


■ 


CHAPTER  26. 

EQUITY  PROCEDURE  (CONTINUED)— SUBPOENA.  APPEARANCE,  DE- 
FAULT, DEMURRER  AND  PLEA. 

Process   of   subpoena. 

Subpoena  in  original  suits  in  Supreme  Court. 

Issuance  of   subpoena. 

Return  day  of  subpoena. 

;Mode  of  service  of  subpoena. 

Alias  subpoena  whore  original  not  e.xecuted. 

Service  of  subpoena  to  be  by  marshal  or  deputy  or  special  appointee. 

Docket  entry  on  return  of  subpoena  as  served. 

When  defendant  must  appear, — entry  of  appearance. 

Nominal    parties   defendant   need   not   appear — right   to   costs. 

Taking  bill  pro  confesso — attachment  against  defendant  in  default. 

Entry  and  vacating  deci'ee   taken  pro  confesso. 

Demurrer  and  plea  in  general. 

Certificate  and  affidavit  to  accompany  plea  or  demurrer. 

Setting  plea  or  demurrer   for   argument — issue   on   plea — effect   of 

decision  for  defendant  thereon. 
Effect   of   failure  to   set   down   for   argument   or  take   issue. 
Demurrer  or  plea  not  to  be  overruled  because  less  extensive  than 

might  be. 
— because  the  answer  also  partly  covers  same  matters. 
Costs  on  plea  or  demurrer  overruled — defendant  then  to  answer. 
Costs  where  demurrer  or  plea  allowed — amendment  of  bill — reply 

to  plea. 

§  967.     Process  of  subpoena. 

The  process  of  subpoena    slvall    constitute    the    proper    mesne 
process  in  all  suits  in  equity,  in  the  first  instance,  to  require  the  de- 
fendant to  appear  and  answer  the  exigency  of  the  bill. 
Part  of  7th  equity  rule,  adopted  March.  1842. 

The  rule  also  provides  as  to  the  proper  process  in  execution  of  orders 
and  decrees.i  The  form  and  style  of  the  processes  of  Federal  courts  are 
provided  by  Congiess.2  So  also  there  are  general  rules  as  to  the  places 
where  Federal  process  may  be  served  and  the  mode  of  service,  and  substitu- 
ted service   which  are   applicable   to  the   process   of   subpoena   in   equity. 3 

iPosl.    55    1095.  3 Ante.  §§  SoUS59. 

2Ante,   §   836. 

925 


§ 

967. 

§ 

868. 

§ 

969. 

§ 

970. 

§ 

971. 

§ 

972. 

§ 

973. 

§ 

974. 

§ 

975. 

§ 

976. 

§ 

977. 

§ 

978. 

§ 

979. 

§ 

980. 

§ 

981. 

§ 

982. 

§ 

983. 

§ 

984. 

§ 

985. 

§ 

986. 

§  968  EQUITY   PROCKDURE.  [Code  Fed. 

The  gpneral  rule  is  that  process  can  only  be  served  within  the  district  over 
which  the  court  has  jurisdiction.*  A  notice  or  order  to  persons  to  appear 
in  a  suit  is  not  subpoena  nor  effective  to  make  them  parties  and  bound  by 
decree.  5 

§  968.     Subpoena  in  original  suits  in  Supreme  Court. 

Process  of  subpoena,  issuing  out  of  this  court  [i.  e.,  the  Su- 
preme Court]  in  any  suit  in  equity,  shall  be  served  on  the  defend- 
ant sixty  days  before  the  return  day  of  the  said  process;  and  if  the 
defendant,  on  such  service  of  the  subpoena,  shall  not  appear  at  the 
return  day,  the  complainant  shall  be  at  liberty  to  proceed  ex  parte. 
Supreme  Court  rvde  5,  part  3. 

The  rule  was  originally  promulgated  August  12,  1796;  6  but  revised 
and  corrected  at  the  December  term  1858."  In  one  early  case  it  became 
necessary    to    enforce    its    provisions    against    the    State    of   New    York.s 

§  969.     Issuance  of  subpoena. 

No  process  of  subpoena  shall  issue  from  the  clerk's  office  in  any 
suit  in  equity  until  the  bill  is  filed  in  the  office. 
11th  equity  rule,  adopted  March  1842. 

The  above  rule  superseded  the  provision  of  the  fourth  of  the  equity 
rules  of  1822  that  '"the  plaintifl'  shall  file  his  bill  before  or  at  the  time 
of  taking  out  the  subpoena."ii 

§  970.     Return  day  of  subpoena. 

Whenever  a  bill  is  filed,  the  clerk  shall  issue  the  process  of  sul)- 
poena  thereon,  as  of  course,  upon  the  application  of  the  plaintiff, 
wliich  shall  contain  the  Christian  names  as  well  as  the  surnames  of 
the  parties,  and  shall  be  returnable  into  the  clerk's  office  the  next 
rule  day,  or  the  next  rule  day  but  one,  at  the  election  of  the  plaintifl', 
occurring  after  twenty  days  from  the  time  of  the  issuing  thereof. 
At  the  bottom  of  the  subpoena  shall  be  placed  a  memorandum  that 
the  defendant  is  to  enter  his  appearance  in  the  suit  in  the  clerk's 
office  on  or  before  the  day  at  which  the  writ  is  returnable;  other- 
wise the  bill  may  be  taken  pro  confesso.  Where  there  are  more  than 
one  defendant  a  writ  of  subpoena  may,  at  the  election  of  the  plain- 
tiff, be  sued  out  separately  for  each  defendant,  except  in  the  case 

4Ante.    §   853.  '21  How.  6. 

5 Young  V.  Montgomerv,  etc.  R.  E.  ''See  New  Jersey  v.  New  York,  3 
2  WoodsVfiOG.  Fed.  Cas/Xo.  18,166.      Pet.   461,   7   L.   ed.   742,   5   Pet.   284, 

61  Cranoh  17,  3  Dall.  320,  1  Wheat.    8  L.  ed.   127. 
15,  1  Pet.  6.  117  Wheat.  6,  5  L.  ed.  375. 

926 


■ 


Procedure]  MODE  OP  SERyiCE  OF    SUBPOENA.  §   971   [a] 

of  luisband  and  wife  defendants,  or  a  joint  subpoena  against  all 
the  defendants. 

12tli  ec)uity  rule,  adopted  March  1842. 

Bj'  the  17th  rule  defendants  appearance  day  is  the  rule  day  to  which  the 
process  is  returnable,  provided  he  was  served  twenty  days  prior  thereto. 1 3 
The  rule  of  1822  which  this  superseded  provided  that  "all  process  shall  be 
made  returnable  to  the  next  succeeding  term,  or  to  any  intermediate  rule 
day,  at  the  election  of  the  party  praying  the  same."i4 

§  971.     Mode  of  service  of  subpoena. 

The  service  of  all  subpoenas  shall  be  by  a  delivery  of  a  copy 
thereof  by  the  officer  serving  the  same  to  the  defendant  personally, 
or  by  leaving  a  copy  thereof  at  the  dwelling  house  or  usual  place  of 
abode  of  each  defendant,  with  some  adult  person  who  is  a  member 
or  resident  in  the  family. 

13th  equity  rule,  as  amended,   May,  1872. 

[a]     In  general 

The  corresponding  provision  of  the  rules  of  1822  declared  that  "if  the 
party  be  not  found,  a  copy  served  by  the  person  leaving  the  same  shall 
be  left  with  his  wife,  or  any  free  white  person  who  is  a  member  of  his  or 
her  family,  at  his  or  her  dwelling  house  or  usual  place  of  abode." i"  The 
rule  in  its  present  form  dates  from  May  3,  1872  at  which  time  the  rule  as 
adopted  in  1842.  was  amended! s  so  as  to  prevent  service  upon  a  hvisband 
alone  being  sufficient  service  upon  husband  and  wife. 1 9  There  is  no  special 
Federal  statute  respecting  service  of  process  in  equity,  but  the  general  lim- 
itations upon  service  of  Federal  process  outside  the  district  where  issued, 
apply  as  fully  to  equity  as  to  common  law  process.20  Equity  process 
cannot  be  served  beyond  the  districts  except  where  the  Federal  statutes  so 
permit  as  to  Fedeial  process  generally,3  as  under  the  provisions  of  an  act 
of  1875.4  The  rule  must  be  strictly  followed. 5  Under  the  early  rules  serv- 
ice upon  the  husband  alone  was  good  service  upon  husband  and  wife.s 
Service  by  leaving  subi)oena  at  the  place  of  abode,  with  an  adult  member 
of  the  family  is  sufficient;"  but  not  with  "an  adult  person  who  is  a  resi- 

isPost.  §  975.  Cas.  Xo.  11.660;  Hyslop  v.  Hoppock, 

i4Rule  2  of   equity  rules  of   1822,  5  Ben.  533.  Fed.  Cas.  No.  6,!)S9. 

7  Wheat.  6.  5  L.  ed.  375.  3Ante,  §§  854.  et  seq. 

I'See   Rule   2   of   Equitv   rules   of  4 Ante,   §   856:     Brown  v.   Penrani, 

1822,  7  Wheat.  6.  5  L.  ed".  375.  143  Fed.  701. 

isSee  21  Wall.  5.  SMyslop   v.    Hoppock.   5    Ben.   533, 

i9See  O'Hara  v.   McConnell.  93  U.  Fed.  Cas.  No.  6.989:  O'Hara.  v.  Mc- 

S.  150,  23  L.  ed.  842.  Connell,  93  U.  S.  150,  23  L.  ed.  842. 

20,See  §S  853  [d],  854  et  seq.  cRobinson    v.    Catbcart.    2    Crancli, 

2.Tobbins  v.  :Mont;igue.  5  Ben.  425,  C.    C.    590,    Fed.    Cas.    No.    11.946. 

Fed.  Cas.  No.  7.329:  Parsons  V.  How-  "O'Hara   v.    McConnell.    93    U.    S. 

ard,  2  Woods.  1.  Fed.  Cas.  No.  10.777:  151.   23   L.    ed.    842:    Phoenix   Co.    v. 

Reid  v.  Rochereau,  2  Woods,  151.  Fed.  Wulf,  9  Biss.  285.  1   Fed.  775. 

927 


§  972  EQUITY    PROCEDURE.  [Code  Fed. 

dent  of  the  place  of  abode"'  of  defendant. 8     Appearance  waives  defect  in 
service  of  process. 9 

£b]     When  service  of  subpoena  upon  attorney  sufficient. 

When  the  bill  upon  which  subpoena  issues  is  ancillary  to  some  proceeding 
upon  the  law  side  of  the  court, n  or  ancillary  or  auxiliary  to  a  suit  in 
equity,  so  that  the  party  to  be  sers'ed  is  already  in  attendance  upon  court 
and  represented  by  attorney,  valid  service  of  the  process  may  be  had  upon 
such  attorney  or  solicitor.  12  Thus  subpoena  on  a  bill  to  restrain  proceed- 
ings upon  the  law  side  may  be  served  on  the  attorney  for  the  plaintiff  at  la.w 
Avhere  such  plaintiff  is  nonresident;i3  so  also  in  case  of  injunction  against 
waste  where  the  party  is  in  court  with  suit  of  slander  of  title  ;14  or  in  case 
of  bill  for  reformation  of  an  insurance  policy  in  aid  of  an  action  at  law. 15 
Cross  bill  may  be  served  upon  the  solicitor  of  parties  defendant  thereto 
who  are  already  in  court. 1 6  When  a  bill  is  original  as  to  same  parties, 
although  as  to  others  it  is  ancillary  or  supplemental  in  character,  substi- 
tuted service  of  the  subpoena  cannot  be  made  upon  such  new  parties. 1 7 
And  where  the  bill  is  strictly  original  or  the  proceeding  wherein  the  party 
to  be  served  was  in  court  by  attorney,  has  so  far  determined  that  he  would 
no  longer  be  so  deemed  in  attendance,  service  upon  that  attorney  is  not 
proper.is  it  is  necessary  to  obtain  an  order  on  motion,  authorizing  serv- 
ice upon  the  attorney,  and  to  make  a  showing  as  to  the  reason  for  not 
making  personal  service  ;19  and  the  bill  should  show  mei'it  on  its  face  or 
the  order  will  not  be  made. 20 

§  972.     Alias  subpoena  where  original  not  executed. 

Whenever  any  subpoena  shall  be  returned  not  executed  as  to  any 
defendant,  the  plaintift'  shall  be  entitled  to  another  subpoena,  toties 

sBlythe  v.  Hinckley,  84  Fed.  228.  leSegee  v.  Thomas,  3  Blatchf.   11, 

9 Ante,   §   860.  "  Fed.   Cas.   No.    12,633;    Fidelity,   etc. 

11  See  ante.  §  3.  Co    v.   Mobile   St.    Ry.   53   Fed.   850. 

i2See  generally  Dunn  v.   Clark,   8  See  ante,  §  963  [d]. 
Pet.  3,  8  L.  ed.  845,  ante,  §  3    [k].  ivBowen  v.  Christian,  16  Fed.  729; 

isBartlett  v.  Sultan,  19  Fed.  346;  Shainwald    v.    Davids,   69    Fed.    702, 

Crellin  v.  Ely,  7  Sawv.  532,  13  Fed.  703. 

420;  Sawyer  v.  Gill,  3  Woodb.  &  M.  isSee  Eckert  v.  Bauert,  4  Wash.  C. 
97,  Fed.  Cas.  No.  12,399;  Read  v.  C.  370,  Fed.  Cas.  No.  4,266;  Ward  v. 
Consequa,  4  Wash  C.  C.  174,  Fed.  Seabry,  4  Wash.  C.  C.  426,  Fed.  Cas. 
Cas.  No.  11,606;  Seegee  v.  Thomas.  3  No.  17,161  :  Sawyer  v.  Gill.  3  Woodb. 
Blatchf.  11,  Fed.  Cas.  No.  12,633;  &  M.  97,  Fed.  Cas.  No.  12,399. 
Cortes  Co.  v.  Thannhauser,  20  Blatchf.  isPacific  R.  R.  v.  Missouri  P.  R.  R, 
59,  9  Fed.  228;  Bush  v.  United  1  McCrarv,  647,  3  Fed.  772;  Gregory- 
States,  13  Fed.  628,  8  Sawv.  322;  v.  Pike,  79  Fed.  521,  25  C.  C.  A.  48; 
Gregory  v.  Pike,  79  Fed.  520'.  25  C.  Bronson  v.  Keokuk,  2  Dill.  498,  Fed. 
C.  A.  48.  Cas.  No.  1,928. 

nHitner   v.    Sucklev,   2   ^^■ash.    C.        2  0Muhlenberg  Co  v.  Citizens'  Nat. 

C.  465,  Fed.  Cas.  No.  6,543.  Bank.  65  Fed.  537. 

i^Al)raham  v.  North  G.  F.  I.  Co.  37 
Fed.  731.  3  L.R.A.   188. 

928 


Procedure]  SERVICE    AND    APPEARANCE.  §   'J75 

quoties   against  such  defendant,  if  he  shall  require  it,  until  due 
service  is  made. 

14th  equity  rule,  adopted,  March  1842. 

Alias  subpoena  is  the  same  as  the  original,  except  that  after  the  words 
"you  are  hereby,"  are  inserted  the  words  "as  you  have  heretofore  been" 
commanded,  etc. 

§  973.     Service  of  subpoena  to  be  by  marshal  or  deputy  or  special 
appointee. 

The  service  of  all  process,  mesne  and  final,  shall  be  by  the  marshal 
of  the  district,  or  his  deputy,  or  by  some  other  person  specially  ap- 
pointed by  the  court  for  that  purpose,  and  not  otherwise.  In  the 
hitter  case,  the  person  serving  the  process  shall  make  affidavit 
thereof. 

15th  equity  rule,  adopted.  March,  1842. 

In  Federal  practice  process  is  generally  served  by  the  marshal  or  his  dep- 
uty ;3  and  he  may  appoint  a  special  deputy.*  So  the  court  may  on  appli- 
cation by  a  party,  appoint  some  person  to  make  service. ^  It  is  the  mar- 
slial's  duty  to  serve  process  as  soon  as  he  reasonably  can.*!  He  must  exer- 
cise his  judgment;'^  and  is  liable  for  injury  arising  from  failure  to  do  so 
himself  ;S  or  by  his  deputy. 9 

§  974.     Docket  entry  on  return  of  subpoena  as  served. 

Upon  the  return  of  the  subpoena  as  served  and  executed  upon 
any  defendant,  the  clerk  shall  enter  the  suit  upon  his  docket  as 
pending  in  the  court,  and  shall  state  the  time  of  the  entry. 
16th  equity  rule. 

§  975.     When  defendant  must  appear, — entry  of  appearance. 

The  appearance  day  of  the  defendant  shall  be  the  rule  day  to 
which  the  subpoena  is  made  returnable,  provided  he  has  been  served 
with  the  process  twenty  days  before  that  day:  otherwise  his  appear- 
ance day  shall  be  the  next  rule  day  succeeding  the  rule  day  when 

sUnited   States   v.   Montgomerv.    2  3  L.  ed.   H)4:   Winter  v.  Ludlow,  30 

Ball.  335,  1  L.  ed.  404.     Ante,  §"857,  Fed.  Cas.  331. 
note.     See  also  ante,  §§  S53.  G44,  663.         ^Wortman   v.    Convngham.    1    Pet. 

4See    Jewett   v.    Garrett.    47    Fed.  C.  C.  241.  Fed.  Cas.  No.  18.056. 
625:    Hym.an   v  Chales,    4   McCrary,        sLifo.  etc.  v.  Adams.  9  Pet.  573,  n 

246.  12  Fed.  855.  '  L.  ed.   234:   Harriman  v.  Rockaway. 

sJobbins  v.  Montague,  5  Ben.  425,  5  Fed.  461. 
Fed.  Cas.  No.  7,329.  ^United  States,  v.  Moore,  2  Brock. 

elvpunedy  v.  Brent,  6  Cranch,  191.  ."07.  Fed.  Cas.  No.  5,802. 
Fed.  Proc— 59.                                 929 


§   V)Tt;  KQUITY    PROCEDURE.  [Code   Fed. 

tlio  process  is  returnable.  The  appearance  of  the  defendant,  either 
personally  or  by  his  solicitor,  shall  be  entered  in  the  order  book  on 
the  day  thereof  by  the  clerk. 

17th  equity  rule,  adopted,  March,  1842. 

[a]  In  general. 

The  corresponding  provision  of  the  earlier  rules  of  1822  declared  that 
'"the  day  of  appearance  shall  be  the  rule  day  after  the  process  is  returned 
executed,  or  after  the  second  return  of  a  copy  left  if  the  process  sliall 
not  be  executed,  when  the  process  is  returnable  to  the  rules,  or  the  rule  day 
next  succeeding  the  term  where  the  process  shall  be  returnable  to  a  term  of 
the  court"! 2  A  party  may  of  course  appear  without  any  service  of  process 
and  thereby  waive  the  same; is  and  he  may  appear  and  file  his  answer 
before  the  return  day  of  the  subpoena.^*  Appearance  may  either  be  in 
person 15  or  by  attorney. i6 

[b]  Formal  entry. 

Strict  conformity  with  the  above  rule  requires  praecipe  to  the  clerk  di- 
recting him  to  enter  defendants  appearance  on  the  order  book;  but  in 
practice  "appearances  are  merely  formally  enteied  as  such,  notwithstanding 
!)iu'  equity  rule;i"  the  solicitor  simply  entering  his  name  on  the  docket  and 
appearing  by  whatever  step  he  may  take  in  pleading."i9  If  a  person  wishes 
!()  appear  merely  to  object  to  the  jui-isdiction  or  the  mode  of  requiring  it, 
lie  should,  by  praecipe  and  his  motion  papers  unequivocally  declare  that 
his  appearance  is  merely  special. 20 

§  976.  Nominal  parties  defendant  need  not  appear — right  to 
costs. 
Where  no  account,  payment,  conveyance,  or  other  direct  relief  is 
nought  against  a  party  to  a  suit,  not  being  an  infant,  the  party, 
upon  service  of  the  subiDoena  upon  him,  need  not  appear  and  answer 
the  bill,  unless  the  plaintiff  specially  requires  him  so  to  do  by  the 
prayer  of  his  bill;  but  he  may  appear  and  answer  at  his  option; 
and  if  he  does  not  appear  and  answer  he  shall  be  bound  by  all  the 
proceedings  in  the  cause.     If  the  plaintiff  shall  require  him  to  ap- 

i2Rule  6,  Eqnitv  Rules  of  1S22,  7  o  L.  ed.  710;   Coodvear  v.  Chatree.  3 

Wheat.  6,  5  L.  ed.'  .375.  Blatehf.    208,    Fed.'  Cas.    Xo.    5.564; 

isSegee  v.  Thomas,  .3  Blatehf.   11,  Marye  v.   Strouse,  5   Fed.   494.     See 

Fed.  Cas.  Xo.  12.0.3,3;  X^plson  v.  :\Ioon,  ante.  S  493. 

3  McLean.  319,  Fed.  Cas.  No.  10.111;  icKnox  v.  Summers,  3  Cranch.  49G, 

Carrington  v.  Brents.  1  McLean.  107.  2  L.  ed.  510. 

Fed.  Cas.  No.  2,446.     See  ante.  S  860.  isRomaine  v.  Insurance  Co.  28  Fed. 

i4Heyman  v.  Uhlman.  34  Fed.  686.  037.  038. 

i5Gracie  v.  Palmer,  8  Wheat.  699.  2  0See   ante,  §   800. 

930 


Procedure]  TAKING    BILL   PRO    CONFESSO.  §   UTT    [a J 

pear  and  answer  he  shall  he  entitled  to  the  costs  of  all  the  pro- 
ceedings against  him  unless  the  court  shall  otherwise  direct. 
54th  equity  rule,  promulgated  March,  1842. 

§  977.     Taking  bill  pro  confesso — attachment  against  defendant 
in  default. 

It  shall  be  the  duty  of  the  defendant,  unless  the  time  shall  be 
otherwise  enlarged,  for  cause  shown,  by  a  judge  of  the  court,  upon 
motion  for  that  purpose,  to  file  his  plea,  demurrer,  or  answer  to  the 
bill  in  the  clerk's  office,  on  the  rule  day  next  succeeding  that  of 
entering  his  appearance.  In  default  thereof,  the  plaintiff  may.  at 
his  election,  enter  an  order  (as  of  course)  in  the  order  book,  tliat 
the  bill  be  taken  pro  confesso;  and  thereupon  the  cause  shall  be  pro- 
ceeded in  ex  parte,  and  the  matter  of  the  bill  may  be  decreed  by 
the  court  at  any  time  after  the  expiration  of  tliirty  days  from  and 
after  the  entry  of  said  order,  if  the  same  can  be  done  without  an 
answer,  and  is  proper  to  be  decreed ;  or  the  plaintiff,  if  he  requires 
any  discovery  or  answer  to  enable  him  to  obtain  a  proper  decree, 
shal  be  entitled  to  process  of  attachment  against  the  defendant  to 
compel  an  answer,  and  the  defendant  sliall  not,  when  arrested  upon 
such  process,  be  discharged  therefrom,  unless  upon  liling  his 
answer,  or  otherwise  complying  with  such  order  as  the  court  or  a 
judge  thereof  may  direct  as  to  pleading  to  or  fully  answering  the 
bill,  within  a  period  to  be  fixed  by  the  court  or  judge,  and  under- 
taking to  speed  the  cause,  "^^^"f^^ 

IStli  equity  rule,  as  amended  October,  1878. 

[a]     History  of  the  provision. 

The  practice  respecting  decree  pro  confesso  has  undergone  several  changes 
since  equity  rules  were  first  adopted.  By  the  rules  of  1822  if  defendant  did 
not  answer  within  three  months  after  his  appearance  day  plaintiff  could 
take  decree  pro  confesso.  which  became  absolute  at  the  next  term  unless 
cause  was  then  shown  by  defendant.''  Plaintiff  also  had  an  option  of  mov- 
ing the  coiu"t  for  a  commission  to  take  depositions,  or  of  bringing  in  de- 
fendant to  answer,  by  attachment.s  These  rules  were  construed  as  fiuther 
requiring  that  plaintiff  obtain  a  rule  upon  defendant  to  answer,  before  the 
court  could  grant  the  decree. 6  The  rules  of  1842  as  originally  adi'pied 
modified  the  earlier  rules  by  providing  that  if  defendant  did  not  demur, 
plead  or  answer  on  or  before  the  rule  day  next  succeeding  his  appearance 

4Rule  6,  Equity  Rules  1822  7  ePondletou  v.  Evans,  4  Wa>li.  C. 
Wheat.  6.  .5  L.  ed. ':J75.  C.    330.    .391.    Fed.    Cas.    No.    10.920, 

5Rule  10,  Equity  Rules  1822.  7  10.921:  Halderman  v.  Halderman, 
Wheat.  6,  5  L  ed.  375.  Hemp.  407,  Fed.  Cas.  No.  5,908. 

931 


S  :'77   [bj 


EQUITY    PROCEDURE. 


[Code  Fed. 


tlie  plaintiff  raiglit  enter  an  order  in  the  order  book  that  the  bill  be  taken 
pro  confesso  and  the  matter  thereof  decreed  at  the  next  succeeding  terra; 7 
and  did  away  with  the  necessity  for  special  rule  upon  defendant  to  answer.8 
On  October  28.  1878,  the  rule  was  amended  into  its  present  forra.^'  and  the 
necessity  for  waiting  until  the  next  term  for  an  absolute  decree  was  done 
away  with.io 

[b]     Construction  and  operation. 

Decree  pro  confesso  under  this  rule  is  not  a  decree  as  of  course  in  con- 
formity with  the  prayer  of  the  bill,  nor  merely  such  as  complainant  chooses 
to  make  it.is  But  the  court  should  make  only  such  decree  as  is  proper  in 
law  under  the  allegations  of  the  bill  taken  as  true.i*  To  order  tliat  the 
bill  be  taken  pro  confesso.  is  to  order  it  to  stand  as  if  its  statements  were 
confessed  to  be  true,  and  a  decree  pro  confesso  is  a  decree  based  on  auch 
statements  assumed  to  be  true.  It  is  as  binding  and  conclusive  as  any 
other  decree.i5  Qn  appeal  the  allegations  of  the  bill  cannot  be  questioned, 
but  only  their  sufficiency  to  support  the  decree.is  Qn  decree  pro  confesso 
in  an  infringement  suit,  only  the  amount  of  damages  and  profits  are  to  be 
ascertained  upon  reference  to  a  master  and  not  questions  of  the  patent's 
validity. 1"  A  decree  pro  confesso  may  be  had  if  defendant  being  sued 
fails  to  appear,  or  having  appeared,  fails  to  answer,  plead  or  demur,  or  if 
he  fails  to  answer  after  a  former  plea,  demurrer  or  answer  is  overruled  or 
declared  insufficient.! s  Decree  pro  confesso  may  be  entered  after  an  inef- 
fective attempt  to  plead,  e.  g.,  by  filing  a  demurrer  lacking  the  necessary 
affidavit,!  9  as  well  as  where  there  is  a  total  failure.  Decree  pro  confesso 
entered  after  striking  defendant's  answer  from  the  files  as  a  punishment 
for  contempt,  is  a  denial  of  due  process  of  law.  20  Although  the  rule  ex- 
pressly provides  that  the  plainitff  may  proceed  ex  parte  after  entry  of 
order  for  a  decree  pro  confesso.  it  has  been  held  that  a  defendant  who  is 


TPuile    18,    19   of   Equity  Rules   of 

1842,    see    16    Pet.   ;    O'Hara    v. 

McConnell,  93  U.  S.  150,  23  L.  ed. 
842;  Boudinot  v.  Symmes,  Wall.  C. 
C.   139,  Fed.  Cas.  No.  1,695. 

sSee  O'Hara  v.  McConnell,  93  U. 
S.  150.  23  L.  ed.  842. 

9See  97  U.  S.  8. 

loSee  also  next  section. 

!30hio  Central  R.  R.  v.  Central  T. 
Co.  133  U.  S.  90.  33  L.  ed.  563,  10  Sup. 
Ct.  Rep.  237. 

i^Tbompson  v.  Wooster,  114  U.  S. 
104,  29  L.  ed.  105,  5  Sup.  Ct.  Rep. 
788;  Sturtevant  v.  National  F. 
Works,  88  Fed.  614,  32  C.  C.  A. 
57;  Wong  Him  v.  Callahan,  119  Fed. 
383. 

i'>Tlioinson  v.  VVoo^ter.  114  U.  S. 
104.  29  L.  ed.  107,  5  Sup.  Ct.  Rep. 
788;   Hefner  v.  Northwestern  R.  Co. 


123  U.  S.  756,  31  L.  ed.  313,  8  Sup. 
Ct.  Rep.  341. 

isThomson  v.  Wooster.  114  U.  S. 
104,  29  L.  ed.  108,  5  Sup.  Ct.  Rep. 
788;  Dobson  v.  Hartford  Co.  114  U. 
S.  446,  29  L.  ed.  179,  5  Sup.  Ct.  Rep. 
948. 

i7Reedy  v.  Western  E.  Co.  83  Fed. 
709,  28  C.  C.  A.  27;  Thomson  v. 
Wooster,  114  U.  S.  114,  29  L.  ed.  105, 
5  Sup.  Ct.  Rep.  788. 

!8Thomson  v.  Wooster,  114  U.  S. 
104,  29  L.  ed.  108.  5  Sup.  Ct.  Rep. 
788;  Southern  P.  Co.  v.  Temple,  59 
Fed.   17. 

!9Sheffield  F.  Co.  v.  Witherow,  149 
C.  S.  576,  37  L.  ed.  855.  13  Sup.  Ct. 
Rep.  936. 

20Hovev  v.  Elliott,  167  U.  S.  409, 
42   L.  ed."215.   17   Sup.  Ct.  Rep.  841. 


932 


Procedure]  DECREE    PRO    COXFESSO.  §  978 

before  the  court  though  in  default,  should  be  given  notice  of  the  application 
for  the  decree.i  And  it  has  been  said  that  the  court  should  never  decree 
pro  confesso  against  a  defendant,  though  in  default,  if  then  in  court  with 
an  answer.2  The  cause  need  not  be  set  for  hearing  at  a  regular  term  after 
entry  of  the  order  pro  cpnfesso.  but  the  matter  may  be  decreed  "at  any 
time"'  after  thirty  days  from  such  entry. 3 

§  978.     Entry  and  vacating  of  decree  taken  pro  confesso. 

Wlien  the  bill  is  taken  pro  confesso  the  court  may  proceed  to  a 
decree  at  any  time  after  the  expiration  of  thirty  days  from  and 
after  the  entry  of  the  order  to  take  the  bill  pro  confesso,  and  such 
decree  rendered  shall  be  deemed  absolute,  miless  the  court  shall,  at 
the  same  term,  set  aside  the  same,  or  enlarge  the  time  for  filing  the 
answer,  upon  cause  shown  upon  motion  and  affidavit  of  the  de- 
fendant. And  no  such  motion  shall  be  granted,  unless  upon  the 
payment  of  the  costs  of  the  plaintiff  in  the  suit  up  to  that  time,  or 
such  part  thereof  as  the  court  shall  deem  reasonable,  and  unless  the 
defendant  shall  undertake  to  file  his  answer  within  such  time  as 
the  court  shall  direct,  and  submit  to  such  other  terms  as  the  court 
shall  direct,  for  the  purpose  of  speeding  the  cause. 
19th  equity  rule,  as  amended  October,  1878. 

This  rule,  together  with  rvile  18,  was  amended  into  its  present  form  on 
October  28,  1878.6  The  earlier  provisions  on  the  subject  of  decree  pro  con- 
fesso have  already  been  referred  to."  Prior  to  this  amendment,  decree  pro 
confesso  only  became  absolute  at  the  next  term.s  It  is  said  that  a  default 
will  usually  be  set  aside  on  motion  on  condition  that  defendant  plead  to 
the  merits  and  go  to  trial; 9  though  terms  will  be  imposed.io  Under  the 
present  rules  this  is  onlj'  so  during  the  term  at  which  decree  was  ren- 
dered;'^  although  a  decree  taken  pro  confesso  on  a  cross  bill  which  does 
not  finally  dispose  of  the  entire  controversy  has  been  held  not  within  that 
principle,  becau.->e  as  tlie  decree  is  interlocutory  and  not  final,  the  court 
does  not  lose  control  over  it  with  the  expiration  of  the  term. 12     There  sliould 

iBennett    v.    Hoefiier.    17    Blatchf.  C.  C.  336.  Fed.  Cas.  Xo.  10.920;  Bou- 

341,  Fed.  Cas.  Xo.  l.:^20:  Southern  P.  dinot   v.    Symmes.    Wall.    C.   C.    139. 

Co.  V.  Temple.  .5!)  Fed.  17.     But  see  Fed.  Cas.  Xo.   1.09.5:   O'Hara  v.   Mc- 

Price   V.   Boden.   39    Fla.  222.   22    So.  Connell.  93  U.  S.  150.  23  L.  ed.  842. 

658.  ^Kemball    v.    btewart,    1    :McLcan, 

-'Halderman  v.  Halderman,  Hemp.  332,  Fed.  Cas.  Xo.  7.682. 

407.  Fed.  Cas.  Xo.  5,908,  but  the  court  lOHalderman  v,  Halderman,  Hemp, 

will    impose   terms.  ^07,  Fed.   Cas.  Xo.  5.908. 

sTliompson    v.    Wooster,    114  U.   S.  n.Austin    v.    Rilev,    .55    Fed.    S.33; 

104,   29   T,.   ed.    108.   5   Sup.   Ct.   Rep.  Stuart  v.  St.  Paul,  63  Fed.  644:  Seho- 

788.     And  see  the  next  section.  field  v.  Horse,  etc.  Co.  65  Fed.  433. 

697  U.  S.  8.  i2Blythe  v.  Hinckley,  84  Fed.  2.34. 

'See   ante.   §   977    [a].  See  also  Bvlthe  Co.  v.  Bankers  Ins. 

sSee  Pendleton  v.   Evans,  4  Wash.  Co.   147   Cal   82,  81    Pac.  281. 

933 


1179 


EQUITY   PROCEDURE. 


[Code   Fed. 


be  a  showing  of  a  meritorious  det'ense,i3  and  application  should  be  made 
at  the  earliest  possible  moment. i^  Where  default  is  prematurely  enteredis 
or  there  was  no  due  service  of  subpoena, 1 6  it  may  be  set  aside  on  motion. 

§  979.     Demurrer  and  plea  in  general. 

The  clel'eudant  mav  at  any  time  before  the  bill  is  taken  for  con- 
fessed, or  afterwards  witii  the  leave  of  the  court,  demur^^^"'^'^^  or 
pleadi^^^'f'^  to  the  whole  bill,  or  to  part  of  it,  and  he  may  demur  to 
part,  plead  to  part,  and  answer  as  to  the  residue  ;'^^^  but  in  every  case 
in  which  the  bill  specially  charges  fraud  or  combination,  a  plea  to 
such  part  must  be  accompanied  with  an  answer  fortifying  the  plea 
and  explicitly  denying  the  fraud  and  combination,  and  the  facts 
on  which  the  charge  is  founded. '^''^ 
32nd  equity  rule. 

[a]     In  general — time  of  filing. 

This  rule  is  the  same  as  rule  18  of  the  equity  rules  of  1822,  except  that 
"ill  every  case"  is  substituted  for  'in  any  case;"  "the  bill  specially  charges" 
is  substituted  for  "the  bill  charges";  and  "facts"  is  substituted  for  "fact. "20 
There  is  no  difference  between  dilatory  pleas  and  pleas  in  bar  as  to  the 
time  when  they  must  be  filed.  1  It  is  defendant's  duty  under  rule  18  to 
demur  or  plead  at  the  rule  day  after  his  appearance ;  2  but  by  this  rule  de- 
fendant may  do  so  afterwards  provided  order  for  decree  pro  confesso  has 
not  been  entered. 3  This  rule  as  to  demurrer  and  plea  to  bills  applies  also 
to  demurrer  and  plea  to  cross  bills.*  There  is  no  such  thing  as  demurrer 
to  an  answer.5  The  proper  practice  is  to  set  the  cause  for  hearing  on  bill 
and  answer; 6   and  a  demurrer  filed  has  been  treated  as  an  application  to 


isSchotield  v.  Horse  Co.  65  Fed.  437.  See  Harvey  v.  Richmond  Co.  64  Fed. 
See  Southern  P.  Co.  v.  Temple,  50  19,  where  belated  demurrer  was  per- 
Fed.  17;   Stuart  v.  St.  Paul,  63  Fed.    mitted. 

644.  »See  Greeiiwalt  v.  Duncan.  16  Fed. 

i4Comly  V.  Buchana,  81  Fed.  58.        35.  5  McCrarv,   132;  Brandon  M.  Co. 
isFellows  V.  Hall,   3  McLean,   281.    v.   Prime,   14'Blatchf.  371.  Fed.   Cas. 

Xo.  1.810:   Hunt  v.  Oliver,  Fed.  Cas. 
Xo.   6.894. 

5Banks    v.    Manchester.    128   I'.    S. 


Fed.  Cas.  Xo.  4,722. 

isBlythe  v.  Hinckley,  84  Fed.  241. 
2oSe'e  7  Wheat.  7,  5  L.  ed.  376. 


lEwing  V.  Blight,  3  Wall.  Jr.  139,    251,   32  L.   ed.   428,   9   Sup.   Ct.    Kep. 


Fed.    Cas.   No.   4,589. 
2See  ante,  §  977, 


36;   Walker  v.  Jack.  88  Fed.  576.  31 
C.  C.  A.  462;   Adams  v.  Bridgewater 


^Hayman  v.  Keally,  3  Cranch  C.  C.    Co.   6   Fed.  179:    Crouch   v.    Kerr.   38 
325.    Fed.    Cas.    No.    6,265;    Oliver   v.    Fed.  549. 

Decatur,    4   Cranch,   C.   C.   458.    Fed.        eBarrett  v.  Twin,  etc.  Co.  Ill  Fed. 
Cas.   Xo.    10,494;    I\Iason  v.   Jones,   1    45. 
H.   &   H.    323,   Fed.  Cas.   No.   9,239. 

934 


I 


Procedure] 


DEMURRER    AND    PLEA    IN    GENERAL. 


§  970    [(■] 


set  down  the  cause  upon  bill  and  answer."     A  demurrer  filed  without  leave 
and  after  answer  and  submission,  is  too  late.s 

[b]  Nature  and  effect  of  demurrer. 

Demurrer  admits  all  facts  well  pleaded.12  But  cannot  itself  introduce 
new  facts. 13  It  does  not  admit  conclusions  of  law  contained  in  the  bill;i* 
as,  the  alleged  construction  of  an  instrument  therein  set  forth, is  or  allega- 
tions that  an  act  was  '"colorable"  or  a  "scheme"  or  a  "breach"  or  a  "fraud"; is 
or  that  rates  are  "unjust  and  unreasonable."!^  An  allegation  in  obvious 
conflict  with  the  record  in  another  suit  made  part  of  the  bill  will  l)f^  regardfil 
as  a  mere  conclusion  of  law,  not  admitted  by  demurrer.is  However,  reason- 
able deductions  are  admitted  by  demurrer  as  well  as  matters  expresslj- 
alleged; IS  and  matters  alleged  are  admitted,  though  complainant  might 
have  left  them  to  be  set  up  in  the  answer. 20  Allegations  of  fact  in  demurrer 
must  be  disregarded.! 

[c]  Grounds  of  demurrer. 

When  the  bill  shows  on  its  face  a  want  of  equity, »  or  that  complainants 
claim  is  barred  by  laches 6  or  by  the  statute  of  limitations,  the  point  may 
be  raised  by  demurrer.  But  the  demurrer  should  be  special  and  not  gen- 
eral  demurrer   for   want   of   equity."      So  if   multifariousness   is   apparent 


'Grether  v.  Wriijlit,  75  Fed.  742, 
•23  C.  C.  A.  40S.  See  Orm.sby  v.  Union 
P.  R.  R.  4  Fed.  170,  where  special  de- 
murrer made  to  part   of  answer. 

sXewman  v.  IMoody.  10  Fed.  S08. 

!2Pul]man  C.  Co.  v.  ^lissnuri  P. 
Rv.  115  U.  S.  500,  20  L.  ed.  400. 
6 'Sup.  Ct.  Rep.  194;  Ansjle  v.  Chica- 
go, etc.  Rv.  151  C.  S.  io.  ^^S  L.  ed. 
55.  14  Sup.  Ct.  Rep.  240:  Dillon  v. 
Bernard,  Holmes.  380.  Fed.  Cas.  No. 
3.915. 

isStewart  v.  Alasterson.  131  U. 
S.  158,  33  L.  ed.  114,  0  Sup.  Ct. 
Rep.  082:  Lamb  v.  Starr.  1  Deady, 
350.  Fed.  Cas.  No.  8.021;  Puget 
Sound  Bank  v.  King  Co.  57  Fed.  433; 
Star  Ball.  etc.  Co.  v.  Khilm.  145  Fed. 
834. 

!4Pullman  C.  Co.  v.  Missouri  Pac. 
Rv.  115  V.  S.  500.  20  L.  ed.  400.  6 
Sup.  Ct.  Rep.  104:  Preston  v.  Smith. 
20  Fed.  884. 

isDillon  v.  Biu-nard.  21  Wall.  437, 
22  L.   ed.  073. 

isFogg  v.  Blair.  130  U.  S.  127, 
35  L.  ed.  104.  11  Sup.  Ct.  Rep.  476. 

1  "Reagan  v.  Farmers  L.  &  T.  Co. 
154  r.  S.  401.  38  L.  ed.  1014.  14  Sup. 
Ct.  Rep.  1047. 


isCornell  v.  Green.  43  Fed.  10.'.. 
See  Ulman  v.  laeger,  67  Fed.  980. 

isAmorv  v.  Lawrence.  3  Cliff.  52:;. 
Fed.  Cas.  No.  336. 

20Post  V.  Beacon  Co.  80  Fed.  1.  32 
r.  C.  A.  151. 

iStar  Ball.  etc.  Co.  v.  Klahn.  1-I.T 
Fed.  SU. 

r.Farlev  v.  Kittson.  120  U.  S.  303. 
30  L.  ed.'  6S8.  7  Sup.  Ct.  Rep.  534. 

6:\Iaxwell  v.  Kennedv.  8  How.  222. 
12  L.  ed.  1051  :  Rhode  Island  v.  Mass- 
achusetts. 15  Pet.  272,  10  L.  ed. 
721  :  Lansdale  v.  Smith.  106  U.  S. 
392.  27  L.  ed.  219.  1  Sup.  Ct.  Rep. 
.350:  Speidel  v.  Henrici.  120  U.  S. 
387.  30  L.  ed.  718.  7  Sup.  Ct.  Rep. 
010;  Brvan  v.  Kales.  134  LT.  S.  135, 
33  L.  ed.  829.  10  Sup.  Ct.  Rep.  4.35: 
Copen  V.  Flesiier  1  Bond.  440.  Fed. 
Cas.  No.  3.  211  ;  Hubbard  v.  Manhat- 
tan T.  Co.  87  Fed.  51.  30  C.  C.  A. 
520. 

"National  Bank  v.  Carpenter.  101 
U.  S.  .568.  25  L.  ed.  815:  Coddington 
v.  Pensacola.  etc.  R.  R.  103  U.  S.  412. 
26  L.  ed.  401  :  Nash  v.  Ingalls.  101 
Fed.  645.  41  C.  C.  A.  545;  Wisnev 
v.  Ogden.  4  Wash.  C.  C.  631,  Fed. 
Cas.  No.  17.014:  Nicliolas  v.  ilurray, 
5   Sawv.    320,    Fed.    Cas    No.    10,22*3. 


935 


;   970    [d] 


EQUITY     PROCEDUUE. 


[Code  Fed. 


upon  the  face  of  the  bill,  the  party  suffering  therefrom, s  may  take  advan- 
tage of  it  by  demurrer;!'  and  if  sought  to  be  claimed  at  all  it  must  be 
either  by  demurrer,  plea  or  answer.io  Want  of  jurisdiction  apparent  on 
tlie  face  of  a  bill  is  ground  for  demurrer.n  Formerly  that  question  had 
to  be  raised  by  demurrer  or  plea,  but  the  statute  now  permits  it  to  be 
raised  later  or  to  be  noticed  by  the  court.12  Want  of  certainty  in  a  bill 
is  properly  raised  by  demurrer  and  not  by  motion; is  and  the  demurrer 
must  be  special  and  not  general. 1 4  The  fact  that  a  portion  of  the  relief 
demanded  is  barred  by  limitations  may  be  raised  by  demurrer. is  A  defect 
of  parties  apparent  on  the  face  of  a  bill  should  be  taken  advantage  of  by 
demurrer;  16  otherwise  by  plea  or  answer.i'?  Demurrer  for  want  of  parties 
should  name  such  parties. is  Formal  defects  in  a  bill  arising  from  noncom- 
pliance with  requirements  of  the  equity  rules  and  appearing  on  the  face 
of  the  bill  may  be  questioned  by  demurrer; is  or  motion  to  strike  out. 20 
They  are  otherwise  waived,i  although  the  same  is  not  true  as  to  de- 
murrer for  want  of  equity. 2 

But  the  propriety  of  issuing  ne  exeat  cannot  be  raised  by  demiirrer;^  nor 
can  questions  of  laches  or  the  statute  of  limitations  be  disposed  of  on  de- 
murrer where  the  bill  avers  excuses  for  laches,"  or  it  is  a  mixed  question 
of  law  and  fact.s 

[dj     Special   demurrer  must   be   specific. 

When  specially  demurring  defendant  should  distinctly  designate  and 
properly  refer  to  the  parts  demurred  to.  10  Demurrer  to  "so  much  as  sets 
up  a  special  contract"  is  not  specific  enough. n  So  demurrer  for  want  of 
necessary  parties  should  name  them. 12 


^Hill  V.  Bonaffon,  2  Wklv.  356, 
Fed.  Cas.  No.  6,488. 

;>  Bunnell  v.  Stoddard,  2  A.  L.  R. 
14o.  Fed.  Cas.  No.  2.135: 

loOliver  v.  Paitt.  3  How.  402,  11 
L.  ed.  622:  Barnev  v.  Latham,  103 
r.  S.  215,  26  L.  ed.  514;  Hefner  v. 
Northwestern,  etc.  Ins.  Co.  123  U.  S. 
751.  31  L.  ed.  309,  8  Sup.  Ct.  Rep. 
337. 

iiNoyes  v.  Willard,  1  Woods,  187, 
Fed.  Cas.  No.  10,374;  Bond  v.  Ver- 
mont Val.  R.  R.  12  Blatchf.  280, 
Fed.  Cas.  No.  11.265. 

12 See  ante  §  818  [a]. 

1 3Einstein  v.  Schrublv,  89    Fed.  540. 

i4Pacific  L.  S.  Co.  V.  HanleA'.  98 
Fed.    327. 

i5:\Ipmphis  v.  Postal  Tel.  Co.  145 
Fed.  602  (C.  C.  A.) 

lePelham  v.  Edelmeyer,  15  Fed. 
264,  21   Blatchf.  188. 

I'Sheffiield,  etc.  Co  v.  Newman,  77 
Fed.  787.  23  C.  C.  A.  459. 

isDwight  V.  Central  etc.  R.  R.  9 
Fed.  785. 


H'Dwight  V.  Humphreys,  3  Mc- 
Lean, 104.  Fed.  Cas.  No.  4.216.  where 
bill  not  signed  bv  counsel.  Pelham 
v.  Edelmever,  15  Fed.  262,  21  Blatchf. 
188. 

20See  Roach  v.  Hulings.  5  Cranch 
C.  C.  637,  Fed.  Cas.  No.  11,874. 

1  Wood  worth  v.  Edwards,  3  Woodb. 
&    M.    120,    Fed.    Cas.    No.    18,014. 

2 Foster  v.  Swasev.  2  Woodb.  &  M. 
217.  Fed.  Cas.  No.'  4,984  permitting 
that  at  the  hearing  and  after  an- 
swer. 

sShainwald  v.  Lewis,  69  Fed.  487. 

"LTlman  v.  laeger,  67  Fed.  980. 

sBeekman  v.  Hudson,  etc.  Rv.  35 
Fed.  3. 

lOAtwill  v.  Ferrett,  2  Blatclif.  39, 
Fed.  Cas.  No.  640;  Chicago,  etc.  R. 
R.   v.    Macomb,   2   Fed.    18^ 

iiOrmsbv  v.  L'nion  Pac.  Ev.  4  Fed. 
170. 

i2Dwight  V.  Central  &  R.  R.  9  Fed. 
785.  20  Blatchf.  200. 


936 


■ 


Procedure]  DEMURRER   AND   PLEA   IX  GENERAL.  §   97'.»    [f] 

[e]  Demurrer  for  want  of  equity  and  ore  tenus. 

The  genera]  demurrer  in  chancery  is  demurrer  for  want  of  equity.  De- 
murrer that  the  bill  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action  is  not  used.is  The  gist  of  such  a  demurrer  is  either  that  there 
is  no  right  of  action  or  ground  of  relief  at  alli-i  or  else  that  adequate  remedy 
exists  at  law.  General  demurrer  has  been  held  sufficient  to  raise  the  ques- 
tion of  a  misjoinder  of  party  plaintiff.i5  But  demurrer  for  want  of  equity 
will  not  be  sustained  where  the  facts  alleged  show  some  ground  of  equitable 
relief.  16  Where  the  vagueness  of  a  bill  in  certain  of  its  material  allega- 
tions left  the  exact  facts  uncertain,  demurrer  has  been  overruled. !■?  Some- 
times also  a  court  of  equity  will  decline  to  decide  doubtful  questions  of 
law  upon  demurrer,  where  a  minute  variation  between  the  allegations  of 
the  bill  and  the  facts  which  the  proofs  might  disclose,  would  perhaps  vitally 
change  the  legal  aspect  of  the  case;  but  under  such  circumstances  will 
overrule  the  demurrer  without  prejudice  to  the  right  to  raise  the  same 
questions  at  the  hearing.is  Demurrer  ore  tenus  is  only  permissible  where 
there  is  a  demurrer  of  record  to  the  whole  bill;i9  and  it  is  said  it  must  be 
coextensive  with  such  record  demurrer. 20 

[f]  Nature  and  effect  of  plea. 

The  proper  office  of  a  plea  is  to  present  some  distinct  fact  which  of  itself 
creates  a  bar  to  the  suit,  or  to  the  part  to  which  the  plea  applies,  and 
thus  avoid  the  necessity  of  making  the  discovery  asked  for,  and  the  ex- 
penses of  going  into  the  evidence  at  large.4  Tt  does  not.  like  an  answer, 
meet  all  the  allegations  of  a  bill:^  nor.  like  a  demurrer,  admit  those  allega- 
tions with  a  view  to  denying  the  equity  of  the  bill.  Yet  it  must  be  a  com- 
plete bar  to  the  bill  or  to  so  much  of  it  as  it  is  directed^  It  must  com- 
pletely cover  the  whole  bill  if  it  is  interposed  to  the  whole.'  This  does 
not  mean  that  it  must  meet  allegations  of  the  bill  seriatim,  and  in  de- 
fault thereof  be  accompanied  by  an  answer,  but  merely  that  it  must  meet 
the  whole  subject  to  which  it  applies  and  professes  to  cover,  or  it  will  be 

isNicholas     v.    Murrav.     5     Sawv.  30  L.   ed.   6S8.  7   Sup.  Ct.  Rep.   .534; 

320.  Fed.  Cas.  No.  10.22.3.                    "  United  States  v.  California   &  O.   L. 

i4Gal]agher    v.    Roberts.    1    Wash.  Co.    148   U.   S.   30.   37   L.   ed.   354.   13 

C.  C.  320.  Fed.  Cas.  Xo.  5,194.  Sup.    Ct.    Rep.    458:    Farley   v.    Hill, 

isConsolidated      R.      M.      Co.      v.  150  V.  S.  574.  37  L.  ed.  1186,  14  Sup. 

Coombs,   .39   Fed.   25.  Ct.    Rep.    186. 

leHodges    v.    North    M.    R.    R.    4  r.Reard  v.  Bowler,  2  Bond.  13.  Fed. 

Dill.  i04  Fed.  Cas.  No.  6.5(51  :   Failev  Cas.      No.      1.180:      Kirkpatrick      v. 

v.  Talbee.  55  Fed.  892:   Pacific  L.  S.  White.  4  Wash.  C.  C.  595.  Fed.  Cas. 

Co.    V.    Hanlev,   98   Fed.    327.  No.    7.850:    Simms  v.   Lvle,  4   Wa-^h. 

i-See  Union  t.  R.  R.  v.  Meier,  28  C.   f .  301.   Fed.  Cas.  No.  12.891. 

Fed.   9.  sMillisran    v.    Milledgc.    3    ('ranch. 

isKansas    v.    Colorado.    185    U.    S.  228.   2   L.    ed.   417:    Rhode   Tslan<l    v. 

144.   145.  46  L.  ed.   846,  22  Sup.  Ct.  :\Iassachusetts,    14    Pet.    271.    10    L. 

Rep.  5.52.  ed.  423:    Piatt  v.  Oliver.    1    :\rcL('an, 

laStorA'  Eq.  PI.   464.  303.   Fed.  Cas.  No.  11.114. 

20Equitable  L.  I.  Co.  v.  Patterson,  ^Sims  v.  Lvle.  4  Wash.  C.  C.  301, 

1   Fed.   127.  Fed.  Cas.  No.  12,891. 

•iFarlev  v.  Kitson,   120  U.   S.   303. 

937 


S   970    LSJ  EQUITY   TROCEDURE.  [Code   Fed. 

bad.s  Sometimes  a  plea  may  consist  of  no  more  than  a  denial  of  an  allega- 
tion of  the  bill, 9  as,  for  instance,  a  denial  of  the  diverse  citizenship 
averred.io  Though  generally  it  contains  new  matter.n  If  the  defect  is 
apparent  on  the  face  of  the  bill  it  should  be  met  by  demurrer  and  not 
plea;i2  and  a  plea  for  multifariousness  apparent  on  the  face  of  the  bill 
will  be  overruled. 13 

[g]     Issue  raised  by  plea  set  down  for  argument. 

Where  without  reply  plaint  ill'  sets  down  the  plea  for  argument,  all  the 
facts  well  pleaded  are  considered  as  admitted.i^  The  setting  of  it  for 
argument  is  in  the  nature  of  a  demurrer  to  the  plea. 1 7  The  question  then 
is  whether  the  fact  or  facts  therein  alleged  are  sufficient  to  constitute  a 
bar.18  It  does  not  reach  the  question  of  the  general  equity  of  a  bill,  as  does 
demurrer;  19  and  defendant  cannot  make  a  plea  effective  to  secure  a  deci- 
sion upon  the  merits  of  the  case  by  denying  therein  the  equity  of  the 
bill.2o  The  disposal  of  a  plea  set  down  for  argument  is  elsewhere  con- 
sidered, i 

[h]  . — .the  use  of  pleas. 

It  has  been  said  that  "a  plea  is  a  very  perilous  experiment,  and  is  gen- 
erally unsuccessful. "2  Tlie  tendency  of  modern  practice  is  undoubtedly 
to  a  less  frequent  use  of  the  plea  in  bar,  or  to  the  merits  of  a  bill.  By 
the  39th  equity  rule  a  defendant  can  as  well  avail  himself  of  such  de- 
fenses in  his  answer,  without  the  penalty  formerly  incurred,  of  being 
obliged  to  make  full  answer  and  discovery. 3  Yet  there  are  still  many  oc- 
casions where  it  is  a  convenient  mode  of  disposing  of  a  case  without  the 
delay  and  expense  of  a  hearing.  Federal  cases  have  recognized  it  as  a 
proper  mode  of  raising  the  issue  of  want  of  diverse  citizenship  or  of  other 
jurisdictional  fact, 5  if  not  apparent  on  the  face  of  the  bill;  or  of  want 
of  proper  parties. 6     It  is  a  proper  mode  of  showing  that  plaintiff  is  bank- 

sSims  V.  Lvle,  4  Wash.  C.  C.  301,  Fed.  Cas.  No.  9.988:  Burrell  v.  Hack- 
Fed.  Cas.  No.'  12.891.  ley.  35  Fed.  833  and  cases  cited. 

sRhino   v.    Emery,    79    Fed.   485.  'isStead   v.   Course,  4  Cranch,  413, 

lOBumham    v.    Rangely,    1    Wood.  2  L.  ed.  663. 

&  M.  17.   led.  Cas.  No.  2,176.  i^Farlev  v.  Kitson.  120  U.  S.  303, 

iiMatthews  v.  Lalanee  etc.  M.  Co.  30  L.  ed.  688.  7  Sup.  Ct.  Rep.  534. 

2  Fed.  234.   18  Blatchf.  84.  soRliode   Island   v.   Massachusetts, 

i2Noyes  v.  Willard.  1  Woods.  187,  14  Pet.   257-259,   10  L.  ed.  423. 

Fed.    Cas.    No.    10.374:     Garrett    v.  iPost.  S  981  [b]. 

New  York,  etc.  Co.  29  Fed.  129.  sKinderslev.    V.    C.    in    ]\Tanbv    v. 

isMcCloskey  v.  Barr,  38  Fed.  165.  Richardson,  "(Dec.   17,   1862). 

isMellus  V.  Thompson,  1  Cliff.  125,  sSee  post,  §  996. 

Fed.     Cas.     No.     9.405:     Barton     v.  sPond     v.     Vermont     R.      R.      12 

Prang,    3    Cliff.    537.    Fed.    Cas.    No.  Blatchf.   280.   Fed.   Cas.   No.    11, -205: 

10,784;  Gallaoher  v.  Roberts,  1  Wash.  Burnham  v.  Ranffolev.  1  Woodb.  &  'SI. 

C.  C.  320,  Fed.  Cas.  No.  5.194:  Unit-  17.    Fed.    Cas.    No.  "2.176.     See   Gar- 

ed   States  v.   California,  etc.  Co.   148  rett     v.    New   York    T.   Co.    29   Fed. 

T-.  S.  31,  37  L.  ed.  3.56,  13  Sup.  Ct.  129. 

Ren.    45S.  eHammond  v.  Hunt.  4  Ban.   &  A. 

I'Mvers   v.    Dorr.    13   Blatchf.    22.  111.     Fed.     Cas.     No.     6,003;     Gold- 

938 


Procedure] 


DEMURRER  AND  PLEA  IN   GENERAL. 


§   079    [ij 


rupt  and  therefore  his  assignee  should  sue  in  his  stead;"  or  that  defend- 
ant has  no  interest  in  the  subject-matter  of  the  suit;8  or  that  another 
action  is  pending.^  But  it  is  in  general  not  necessary  to  enable  defendant 
to  raise  the  defense  of  laches,  neglect  or  acquiescence,  or  the  statute  of 
limitation.  10 

[i]     Form  and  sufficiency — several  pleas. 

The  averments  of  a  plea  in  bar  must  be  so  clear,  positive  and  distinct 
that  complainant  may  take  issue  on  its  validity.is  A  plea  that  defendant 
is  "the  sole  owner  in  fee  simple"  may  be  a  statement  of  a  mere  conclusion 
of  law  and  bad.i^  A  plea  containing  a  negative  pregnant  is  bad.i»  A  plea 
is  bad  that  is  merely  argumentative,  and  in  addition  to  stating  the  con- 
tradictory fact,  should  directly  negative  and  traverse  inconsistent  allega- 
tion in  the  bill. is  A  plea  should  not  be  ambiguous, i"  nor  uncertain  nor 
tender  an  immaterial  issue. is  When  a  plea  is  objectionable  in  form  a 
motion  to  strike  it  out  is  proper,  rather  than  the  setting  of  it  for  argu- 
ment.i9  It  is  the  general  rule  that  only  one  plea  should  be  filed  unless 
by  leave  of  court; 20  and  that  a  plea  ought  not  to  contain  more  defenses 
than  one.  Various  facts,  therefore,  can  never  be  pleaded  in  one  plea,  unless 
they  are  all  conducive  to  a  single  point  on  which  the  defendant  means  to 
rest  his  defense. 1  A  plea  is  multifarious  which  avers  an  accord  and  satis- 
faction and  a  prescriptive  right; 2  or  want  of  diverse  citizenship,  want  of 
due  service,  and  another  action  pending,^  or  two  separate  former  adjudica- 


smith  V.  Gilliland.  24  Fed.  154.  10 
Sawv.  606;  Tobin  v.  Walkinshaw,  1 
McAll.  26,  Fed.  Cas.  No.  14.068. 
But  see  United  States  v.  Gillespie.  6 
Fed.  803. 

"Kittredge  v.  Claremont  Bank,  3 
Storv.  590.  Fed.  Cas.  No.  7,858. 

8\Villiams  v.  Empire  T.  Co.  17 
A.  L.  Reg.  698.  Fed.  Cas.  No.  17.720. 

sPierop  V.  Feagans,  39  Fed.  587. 

lOCredit  Co.  v.  Arkansas  C.  11.  R. 
15  Fed.  46,  5  McCrarv,  23;  i»\kin  v. 
Sierra  B.  R.  R.  25  Fed.  337;  Johnson 
V.  Flcrida  R.  R.  IS  Fed.  821;  Leaven- 
worth Co.  V.  Chicago,  etc.  R.  R.  18 
Fed.  209,  5  MeCrary,  508;  Pratt  v. 
California   M.    Co.   24    Fed.    809. 

i3:\rcCloskev  V.  Barr,  38  Fed.   165. 

i4McCloskev  V.  Barr,  38  Fed.  165. 

isRhino  V.  Emerv,  79  Fed.  483. 

leT^TcDonald  v.  Salem  C.  Co.  31 
Fed.  577,  12  Sawv.  492. 

IT  Emma  S.  :\f.  Cn.  v.  Emma  S. 
M.    Co.    7    Fed.    401. 

isComputing  S.  Co.  v.  Moore,  139 
Fed.    197. 

ii>Sharp  V.  Reissner.  9  Fed.  447, 
20  Blatchf.  10;  C^iisholm  v.  Johnson, 


84  Fed.  385;  Union  S.  Co.  v.  Phila. 
etc.   R.  R.   69  Fed.  833. 

2  0Gilbert  v.  Murphy,  100  Fed.  161; 
Bimker  Hill.  etc.  Co.  v.  Shoshone  Co. 
109  Fed.  504,  47  C.  C.  A.  200;  Lamb 
V.  Starr,  Deadv,  350,  Fed.  Cas.  No. 
8,021  ;  Wheeler  v.  McCormick,  8 
Blatchf.  267,  Fed.  Cas.  No.  17,498; 
Newby  v.  Oregon,  etc.  Ry.  18  Fed. 
Cas.  p.  43.  And  more  than  one  will 
only  be  allowed  for  obvious  necessi- 
tv;  Lamb  v.  Starr,  Deadv,  350, 
Fed.  Cas.  No.  8,021.  See  Garrett  v. 
New  York  T.  Co.  29  Fed.  129;  Unit- 
ed States  v.  Gillespie.  6  Fed.  803; 
Emma  S.  M.  Co.  v.  Emma  S.  M.  Co. 
7  Fed.  401;  Miller  v.  Rickey.  123 
Fed.  604   and   cases  cited. 

iRliode  Island  v.  Massachusetts, 
14  Pet.  259.  10  L.  ed.  446;  Gaines 
v.  Masseaux.  1  Woods.  118,  Fed.  Cas. 
No.  5,176;  Hostetter  Co.  v.  E.  G. 
Lvons.  99  Fed.  736;  :\filler  v.  Rickey, 
123  Fed.  607;  Giant  P.  Co.  v.  Safotv 
etc.  Co.  19  Fed.  509;  Knox  Co.  v. 
Rairdon  Co.  87   Fed.  969. 

2Rhode  Island  v.  ^lassachusetts, 
14  Pet.  259,  10  L.  ed.  446. 

sBrigss    V.    Stroud.    58    Fed.    718. 


939 


S  OT'J   Ij] 


EQUITY    PROCEDURE. 


[Code   Fed. 


tious,*  or  prior  patent  and  abandonment. &  If  a  plea  contains  more  tiian 
one  point  the  court  will  put  defendant  to  his  election  as  to  which  to  stand 
upon,6  or  else  perhaps  order  the  pleas  to  stand  as  an  answer.^  But  a  single 
defense  sought  to  be  raised  by  plea  may  result  from  a  number  of  distinct 
facts,  and  if  so  a  plea  setting  them  forth  is  not  duplicitous.s 

[j]     Demurrer,  plea,  and  answer  to  different  parts  of  an  entire  bill. 

Plea  in  bar  to  the  whole  bill  must  sometimes  be  supported  by  an 
answer;  11  and  plea  which  is  only  intended  as  a  bar  to  a  part  of  a  bill,  must 
always  be  accompanied  by  demurrer  or  answer  to  the  rest. 12  Since  a  de- 
murrer to  the  whole  bill  will  be  overruled  if  any  part  is  good,i3  it  is 
essential  that  demurrer  be  confined  to  such  parts  of  a  bill  as  are  alleged 
lo  be  insufficient  in  law,  and  that  the  defendant  meet  the  remainder  either 
by  answer  or  plea  or  both.  Thus  the  discovery  parts  of  a  bill  may  be 
good,  although  all  the  remainder  is  demurrable  and  if  so  demurrer  to  the 
whole  must  be  overruled.i*  However,  if  the  relief  is  the  principal  part 
of  the  bill  and  discovery  only  incidental,  a  demurrer  to  the  whole  bill  may 
be  sustained  if  the  plaintiff  is  not  entitled  to  the  relief  sought,  i''  De- 
murrer to  part  followed  by  answer  to  the  rest  is  proper  and  allowable,! 6 
but  there  is  no  rule  in  equity  allowing  a  party  to  demur,  plead  and  answer 
to  the  whole  bill  at  the  same  tirae;i"  nor  allowing  a  plea  to  be  filed  with 
an  answer  which  extenas  to  all  matters  covered  by  it.is  Nor  will  a  party 
ordinarily  be  permitted  to  file  a  demurrer  to  the  whole  bill  and  several 
pleas  at  the  same  time,i9  or  demurrer  to  the  whole  bill  and  answer  to  the 
whole.2  0  If  he  does  so  the  answer  is  then  deemed  a  waiver  of  the  de- 
murrer,! or  defendant  may  be  required  to  elect. 2     If  defendant  demurs  to 


4Fayerweather  Will  Cases,  103 
Fed.   548. 

r>Societe  Fabr.  v.  Lueders.  105  Fed. 
633. 

eNoyes  v.  Willard.  1  Woods,  187, 
Fed.   Cas.  No.   10,374. 

TReissner  v.  Anness,  12  0.  G.  842, 
Fed.   Cas.  No.   11,686. 

sMacVeagh  v.  Denver  C.  W.  Co. 
85  Fed.  74.  29  C.  C.  A.  33;  Hazard 
V.  Durant,  25  Fed.  26. 

11  See  infra,  note   [k]. 

12  Ferguson  V.  O'Hara,  Pet.  C.  C 
493.  Fed.  Cas.  No.  4,740. 

isLiviiigston  V.  Story.  9  Pet.  658. 
9  L.  ed.  255 ;  Pacific  R.  R.  v.  Missouri 
Pac.  R.  R.  Ill  U.  S.  520,  28  L.  ed. 
498.  4  Sup.  Ct.  Rep.  583 :  Stewart  v. 
Masterson.  131  U.  S.  158,  33  L.  ed. 
114.  9  Sup.  Ct.  Rep.  682;  United 
States  v.  Southern  P.  Co.  40  Fed. 
611  ;  :Merriam  v.  Holloway  P.  Co.  43 
Fed.  450:  Buerk  v.  Imhaeuser,  8  Fed. 
457;   La  Croix  v.  May,  15  Fed.  236; 


Mercantile  T.  Co.  v.  Rhode  Island  Co. 
36  Fed.  863;  Northern  P.  R.  R.  v. 
Roberts.  42  Fed.  734. 

14  Livingston  v.  Story,  9  Pet.  658, 
9  L.  ed.  264. 

15 Johnson  v.  Ford,  109  Fed  501. 

ispierpont  v.  Fowle,  2  Wood.  & 
M.  23.  Fed.  Cas.  No.  11,152;  Cres- 
cent Citv  Co.  v.  Butchers,  etc.  Co.  12 
Fed.  225'. 

1'' Crescent,  etc.  Co.  v.  Butchers, 
etc.  12  Fed.  225. 

isGrant  v.  Phoenix,  etc.  Ins.  Co. 
121  U.  S.  115,  30  L.  ed.  905,  7  Sup. 
Ct.  Rep.  841. 

li* United  States  v.  American  B.  T. 
Co.  30  Fed.  523. 

2  0Strang  v.  Richmond,  etc.  R.  R. 
101   Fed.  511,  41  C.  C.  A.  474. 

1  Strang  v.  Richmond,  etc.  R.  R. 
101  Fed.  511.  41  C.  C.  A.  474;  Hayes 
V.  Davton.  8  Fed.  702,  IS  Blatchf.  420. 

2Haves  v.  Davton,  8  Fed.  702,  18 
Blatchf.  420. 


940 


Procedure]  PLEA   AND  DEML'RREU.  §   980 

part  and  answers  as  to  the  rest,  the  demurrer  is  not  thereby  vvaived.s  By 
the  37th  rule,  if  a  part}'  now  answers  part  of  a  bill  to  which  he  has  de- 
murred, it  is  provided  that  that  shall  not  be  ground  for  overrruling  the  de- 
murrer.<  The  39th  rules  permitting  matter  available  as  plea  in  bar  or  to  the 
merits  to  be  set  up  in  the  same  way  in  the  answer  has  had  a  tendency 
to  discourage  the  practice  of  filing  demurrer,  plea  in  bar  and  answer  to  dif- 
ferent parts  of  a  bill,  since  defenses  can  be  safely  and  advantageously  made 
by  answer. 

[k]     Answer  in  support  of  plea. 

.Sometimes  a  plea  requires  answer  in  its  support.  The  above  rule  makes 
this  essential  in  case  of  plea  to  part  of  a  bill  charging  fraud  or  combina- 
tion.9  So,  where  a  plea  is  intended  to  meet  merely  a  part  of  the  bill  it  is 
of  course  necessary  that  there  be  answer  or  demurrer  to  the  rest.io  Where 
a  plea  is  interposed  as  a  complete  bar.  there  may  be  allegations  in  the 
bill  bearing  upon  the  fact  alleged  in  the  plea,  which  will  be  taken  as  ad- 
mitted unless  answered.  Hence  the  rule  is  that  defendant  must  also  answer 
to  those  facts  in  a  bill  which  would  be  evidence  to  dispute  his  plea;ii  and 
to  interrogatories  bearing  upon  the  fact  alleged  in  his  plea.  Ordinarily  a 
plea  denying  the  diverse  citizenship  alleged  need  not  be  supported  b.\ 
answer;  12  nor  a  plea  of  the  statute  of  limitations.! 3  A  plea  to  the  whole 
hill  stating  nothing  but  legal  conclusions,  accompanied  by  answer  to  the 
whole,  may  be  disregarded. i<  The  liling  of  an  answer  to  the  whole  bill  is 
a  waiver  of  the  plea. is 

§  980.  Certificate  and  affidavit  to  accompany  plea  or  demurrer. 
Xo  demurrer  or  plea  shall  be  allowed  to  be  filed  to  any  bill,  imle.<s 
upon  a  certificate  of  counsel,  that  in  hi.s  opinion  it  is  well  founded 
in  point  of  law,  and  supported  by  the  affidavit  of  the  defendant ;  that 
it  is  not  interposed  for  delay ;  and,  if  a  plea,  that  it  is  true  in  point 
of  fact. 

31st  equity  rule,  promulgated  March,  1842. 

Plea  or  demurrer  unaccompanied  by  the  proper  certificate  and  affidavit, 
should  be  disregarded.!     There  is  no  equity  rule  requiring  a  certificate  of 

sPierpont  v.  Fowle,  2  Wood.  &  M.  ot.  42  Fed.  249:   Rhino  v.  Emery,  79 

23.  Fed.  Cas.  No.  11.152.  Fed.   486;     Playford   v.   Lockard,   6.5 

4 See  post,   §  984.  Fed.  870;   but  not  others:    Hatch  v. 

•■^See  post.  §  996.  Bancroft.  67    Fed.  802. 

i'See  Lewis  V.  Baird,  3  McLean,  56,  i^McDonald  v.  Salem  C.  F.  Co.  31 

Fed.   Cas.   Xo.   8,316;    Huntington   v.  Fed.  577.   12  Sawy.  492. 

Laidley.  79  Fed.  865.    Note  the  word-  1 3 West  Portland,  etc.  Co.  v.  Lowns- 

iiig   of    Rule    39,    post.    §    996.    as   to  dale,    17   Fed.   20.1   9   Sawy.    106. 

iinswer  in  support  of  plea.  nHudson  v.  Randolph.  66  Fed.  21i!, 

ii'See  supra,  note[j]  ;  Sims  v.  Lvle,  13  C.  C.  A.  402;  Marshall  v.  Otto,  59 

4  Wash.  C.  C.  301.  Fed.  Cas.  No.  12,-  Fed.  249. 

891.  laHuntington    v.    Laidley,    79    Fed. 

iiDwight  V.  Central   R.  R.  9  Fed.  865. 

78.5.  20   Blatchf.  200:  Hilton  v.  Guy-  i American   S.   Co.  v.  Wire.   Co.  90 

941 


§   981  EQUITY    i'KlK'KDUUE.  [Code   Fed. 

fouiiscl  that  ail  answer  to  the  merits  is  well  founded  in  law. 2  Where  the 
plea  of  a  corporation  is  accompanied  by  the  requisite  affidavit,  the  affixing 
of  the  corporate  seal  to  the  plea  may  be  dispensed  with. 3  If  instead  of 
disregarding  a  plea  lacking  the  certificate  and  demurrer,  or  moving  to 
strike  it  from  the  files,*  plaintiff  sets  it  down  for  hearing,  this  has  been 
held  a  waiver  of  the  delect. 5  And  it  is  too  late  to  raise  the  question  for 
the  first  time  on  appeal. 6  Where  the  plea  is  joint  it  sliould  ordinarily  be 
verified  by  all  the  defendants." 

§  981.     Setting'  plea  or  demurrer  for  argument — issue  on  plea — 
effect  of  decision  for  defendant  thereon. 
The  plaintiff  may  set  down  the  demurrer  or  plea  to  be  argued,'" J '"^''^ 
or  he  may  take  issue  on  the  plea.f*^^     If,  upon  an  issue,  the  facts 
stated  in  the  plea  be  determined  for  the  defendant,  they  shall  avail 
him  as  far  as  in  law  and  equity  they  ought  to  avail  him.!^^^ 
33rd  equity  rule,  promulgated  March,  1842. 

[a]     Setting  plea  or  demurrer  for  argument. 

This  rule  is  the  same  as  rule  19  of  the  e(]uity  rules  of  1822. n  In  the 
ease  of  demurrer  the  proper  course  is  to  set  it  for  argument  unless  it  is 
so  defective  in  form  that  it  may  be  stricken  out  on  motion  or  disregarded.!  2 
Where  justice  demands  it,  the  court  may  overrule  a  demurrer  and  require 
an  answer,  reserving  to  the  defendant  the  right  to  raise  the  same  issues.is 
A  plea  may  similarly  be  disregarded  or  stricken  out  for  certain  formal  de- 
fects ;14  but  in  their  absence,  plaintifi'  has  a  choice  between  setting  it  down 
for  argument  to  test  its  legal  sufficiency  or  taking  issue  by  replication  upon 
the  facts  which  it  alleges.io  The  nature  of  the  issue  raised  by  setting 
it  for  argument  has  already  been  considered. 1 6     If  the  plea  or  demurrer  is 

Fed.    599:    National    Bank    v.    Insur-  initing  S.  Co.  v.  Moore,  139  Fed.  197. 

ance  Co.  104  U.  S.  55.  76,  26  L.  ed.  "   eBrazoria  Co.  v.  Youngstown  B.  Co. 

693;   Secor  v.  Singleton,  3  McCrary,  80  Fed.  13,  25  C.  C.  A.  306. 

230,   9   Fed.   809;    Filer  v.   Lew,    i?  ^ Computing   S.   Co.  v.   Moore,   139 

Fed.    610;    Sheffield    Furnace    Co.    v.  Fed.  197. 

Witherow,   149  U.   S.   574.  .37   L.  ed.  "See  7  Wlieat.  V.  et  seq.,  5  L.  ed. 

853,  13  Sup.  Ct.  Rep.  936;  Preston  v.  376. 

Finley,  72  Fed.  8.50'  isSee    ante,    §    980:    see   Roach    v. 

sMcCorriiv    v.    OTonnov.    87    Fed.  Hulinss,  5  Cranch.  637,  Fed.  Cas.  No. 

.->S6,  31  C.  C".  A.  114.  11.874T 

sFaverweather    v.    Hamilton    Coll.  isRankin  v.  Miller,  130  Fed.  229. 

103  Fed.  546.  i^See  ante,  §  980;  §  979[i];  Union 

4The  proper  coui'se;    see  Brazoria  S.  Co.  v.  Philadelphia,  etc.  R.  R.  69 

Co.  V.  Youngstown  B.  Co.  80  Fed.  13,  Fed.   833. 

25  C.  C.  A.  .306.  and  cases  cited.  isMvers   v.   Dorr.    13   Blatchf.    22. 

sCoodvear  v.  Tobv.  6  Blatchf.  130,  Fed.  Cas.  No.  9.988:  Daniels  v.  Bene- 

Fed.   Cas.   No.   5.58.5.      For  a  similar  diet,   97   Fed.   374,    38   C.  C.   A.   592; 

rule  at  law  see  Griswold  v.  Baclieller,  (Jibberson    v.    Cook^    124    Fed.    987: 

77  Fed.  S57:  Commercial  Bank  v.  Slo-  Hatcli  v.  Bancroft  1.  Co.  67  Fed.  802. 

comb,  14  Pet.  60,  10  L.  ed.  .354:  Com-  1 6 Ante,   §  979  [g]. 

942 


I 


Procedure]      SETTING  PLEA  OR  DEMURRER  FOR  ARGUMENT.        §  981   [c] 

allowed  rule  35  governs  as  to  costs  and  amendment  of  the  billji^  and  after 
plea  allowed,  plaintiff  may  file  a  replication.!  s.  If  the  demurrer  or  jilea 
is  overruled  or  the  plea  is  decided  for  plaintiff  on  replication  rule  34  gov- 
erns as  to  the  costs  and  the  necessity  that  defendant  then  answer. 1 9  If 
complainant  fails  to  reply  to  a  plea  or  set  it  or  a  demuiTer  down  for  argu- 
ment, the  penalty  is  the  dismissal  of  his  bill. 20  it  is  irregular  to  file  rep- 
lication to  answer  supporting  a  plea,  and  ignore  the  plea.i  It  is  improper 
to  demur  to  a  plea;  the  mode  of  testing  its  legal  sufficiency  is  by  setting 
it  down  for  argument,2  that  being  the  legal  equivalent.s  The  setting  of 
a  plea  or  demurrer  for  argument  is  a  waiver  of  certain  formal  defects 
therein. 4 

[b]  Disposal  of  plea  set  for  argument. 

Courts  of  chancery  exercise  a  large  discretion  in  dealing  with  pleas  in 
order  to  avoid  the  injustice  to  a  plaintiff  often  involved  in  determining  the 
cause  under  the  technical  rules  which  apply  to  them.^  If  the  issue  raised 
by  plea  approaches  closely  to  the  issue  upon  the  merits  as  it  would  be 
presented  by  answer,  it  is  customary  to  overrule  the  plea  and  require  de- 
fendant to  answer  without  prejudice  to  the  right  to  raise  the  same  de- 
fenses therein. s  A  good  illustration  of  this  practice  is  often  afforded  by 
infringement  suits  where  plea  of  non-infringement  is  interposed. 9  A  plea 
many  be  good  in  part  and  bad  in  part. 10  In  that  event  it  will  be  overruled 
in  part  and  declared  good  in  part  Avith  leave  for  plaintiff  to  file  a  replica- 
tion.! 1  Rule  34  governs  the  further  proceedings  where  a  plea  is  overruled;  12 
and  rule  35  where  the  plea  is  sustained.! s 

[c]  Taking  issue  on  the  plea  and  effect  of  finding  in  defendant's  favor. 

If  complainant  elects  to  take  issue  on  the  truth  of  the  fact  or  facts 
alleged  in  the  plea,  rather  than  upon  its  legal  sufficiency,  he  should  file 
a  r.^plication  traversing  the  allegations.! 6     Special  replication  is  no  longer 

iTPost.  §  986.  718;    Gilbert    v.    Murphv.    100    Fed. 

isPost.  §  986  [b].  161. 

i9See  post.  §  985.  9Chisholm     v.     Johnson,    84    Fed. 

2  0Post.  §  982.  385:    Sharp  v.  Eeissner,  9  Fed.  447. 

!See   Beals   v.  Illinois,   etc.   R.   R.  20  Blatchf.  10;  Kom  v.  Weibush.  33 

133  r.  S.  290.  33  L.  ed.  608.  10  Sup.  Fed.    51 :    see    Knox   Co.    v.   Rairdon, 

Ct.  Rep.  314.  etc.  Co.  87  Fed.  969. 

2Zinunerman  v.   So  Relle.  80  Fed.        lOWvthe  v.   Palmer.  3   SaAvy.  412, 

417.  25  C.  C.  A.  518.  Fed.  Cas.  Xo.  18.120:  Kirkpatrick  v. 

sBurrell  v.  Haokley.  35  Fed.  833;  White.  4  Wash.  C.  C.  595.  Fed.  Cas. 

see  ante.  §  979[g].      "  Xo.  7. 850:   Rhino  v.  Emery.  79  Fed. 

4  See  Farmers'  L.  &  T.  Co.  v.  Chi-  483. 
cago.    etc.    Rv.    61    Fed.    543:    Good-        iiRhino  v.  Emery.  79  Fed.  483. 
vear  v.  lobev.   6  Blatclif.    130.   Fed.        i2Post,  §  985. 
Cas.  Xo.  5,585.  !3Post.  §  986. 

"Rhode    Island    v.    Massachusetts,        leSee  Mvers  v.   Dorr.   13    Blatchf. 

14  Pet.  257.  10  L.  ed.  445.  23.  Fed.   Cas.  No.  9.988;   McAleer  v. 

sSee    Rhode    Island    v.    Massachu-  Lewis.  75   Fed.  734:   Earll  v.  ]Metro- 

setts.     14    Pet.    257.    10   L.    ed.    445:  politan   St.  Ry.   87   Fed.   528:    Snder- 

Chisholm    V.    Johnson.   84    Fed.    38-1:  berg  v.  Armstrong,  110  Fed.  709. 
and    see    Briggs    v.    Stroud,    58    Fed. 

943 


S   !i,si    [c]  EQUITY     I'KOCEDUUE.  [Code   Fed. 

])c'nuis.sible.i'  Fonueily  a  paity  who  took  issue  upon  a  plea  instead  of 
disputing  its  legal  sufficiency,  was  deemed  to  have  admitted  that  the  plea 
was  a  bar  if  true;  so  that  if  its  truth  was  found  dismissal  of  the  bill  fol- 
lowed as  matter  of  course.is.  The  Supreme  Court  adopted  that  principle 
from  the  English  chancery  practice  in  a  case  decided  in  1821,  and  observed: 
"It  is  not  perceived  that  any  serious  mischief  can  arise  from  it.  Counsel 
will  generally  be  able  to  decide  on  the  merits  of  any  defense  which  may  be 
spread  on  a  plea,  and  if  insufficient  it  is  not  probable  that  they  will  do 
otherwise  than  set  it  down  for  argument.  Nor  will  they  ever  take  issue 
upon  it  but  in  a  case  which  presents  a  very  clear  and  sufficient  defense,  if 
the  facts  be  proved."'iS'  But  rule  10  of  the  equity  rules,  adopted  in  the 
.following  year  contained  the  proviso  which  has  been  preserved  in  the  rule 
now  in  force  that  the  facts,  if  found  for  defendant,  ''shall  avail  him  as  far 
as  in  law  and  equity  they  ought  to  avail  him."  The  authorities  seem  to 
agree  that  this  proviso  has  modified  the  earlier  rule. 20  The  question  is, 
how  far  it  has  affected  or  modified  that  rule.  Upon  the  one  hand  the  court 
must  consider  the  inequity  of  compelling  a  defendant  to  go  to  the  expense 
of  proving  his  plea;  and  upon  the  other,  the  inequity  of  having  a  case 
turn  upon  the  existence  or  non-existence  of  facts  which  are  perhaps  not 
material  or  properly  controlling.  It  was  this  latter  consideration  which 
has  been  deemed  responsible  for  the  rule.i  It  may  safely  be  said  that 
the  Federal  courts  will  no  longer  consider  the  filing  of  replication  to  a 
plea  so  conclusive  an  admission  of  its  legal  sufficiency  as  to  debar  them 
from  examining  its  merits  and  overruling  it  if  bad  in  substance; 3  or  from 
considering  other  facts  adduced  by  complainant  to  avoid  its  effect. *  The 
court  is  not  necessarily  required  to  dismiss  the  bill,  though  the  plea  be 
j)rnvcn  true. 5  "Under  the  existing  rule  the  court  may,  upon  final  hearing, 
do,  at  least,  what,  under  the  old  rule,  might  have  been  done  when  the 
benefit  of  a  plea  was  saved  to  the  hearing."6  But  of  course  if  the  plea 
meets  and  satisfies  all  the  claims  of  the  bill,  it  ought  to  avail  defendant 

1  v:\Iason  v.  Hartford,  etc.  R.  R.  10  Pet.  210,  10  L.  ed.  423,  decided  while 

Fed.  334.  the  rules  of  1822  were  in  force. 

isStorv  Eq.   PI.   §  697;   Hughes  v.  iQreen  v.  Bogue,  158  U.  S.  49!).  39 

Blake,  c'  Wheat.   453,   5  L.   ed.   303:  L.  ed.  1061,  15  Sup.  Ct.  Rep.  983. 

Gernon  v.   Boccaline.  2   Wash.   C.   C.  sMatthews  v.  Lalance  &  (t.  M.  Co. 

199.  Fed.  Cas.  No.  5.366:  see  Cottle  v.  2  Fed.  235,  18  Blatchf.  84;   Green  v. 

Krenientz,  25  Fed.  494.  and  Birdseye  Bogue.  158  U.  S.  478,  39  L.  ed.  1061, 

V.  Heilner.  27   Fed.  289,  overlooking  15  Sup.   Ct.  Rep.   975;    Soderberg  v. 

the   clianse   in   the   rule.  Armstrong.   116  Fed.   709;    American 

1  "Hughes  v.  Blake,  6  Wheat.  472,  G.  Co.  v.  ^Edison  P.  Works.  68  Fed. 

5  L.  ed.  308.  451;  but  see  contra:  Daniels  v.  Bene- 

20Pearce  v.  Rice,  142  U.  S.  28.  35  diet,   97    Fed.   374,   38   C.   C.   A.   592; 

L.    ed.    925,    12    Sup.    Ct.    Rep.    130:  Gibberson   v.    Cook,     124    Fed.    987; 

Green  v.  Bogue.  158  U.  S.  478,  499,  39  Mvers  v.  Dorr,   13  Blatchf.  22,  Fed. 

L.    ed.    lOOf.    15   Sup.   Ct.    Rep.    983;  Cas.  No.  9,988. 

Elgin,  etc.   Pump  Co   v.   Nichols.   65  4Elgin.  etc.  Co.  v.  Nichols,  65  Fed. 

Fed.  217,  12  C.  C.  A.  580;   Soderberg  215.  12  C.  C.  A.  578. 

V.  Armstrong,  116  Fed.   710;    Farlev  sPearce   v.   Rice.   142   U.   S.   28.  35 

V.  Kittson,  120  U.  S.  314.  30  L.  ed.  L.  ed.  930,  931,  12  Sup.  Ct.  Rep.  130. 

684.    7    Sup.    Ct.   Rep.    534;    but    see  sPearee  v.  Rice.    142   U.   S.  42.  35 

Rhode    Island    v.    Massachusetts.    14  L.  ed.  930.  931,  12  Sup.  Ct.  Rep.  130. 

944 


■ 


Procedure]  PLEA   AND   DEMURRER.  §  982 

so  as  to  require  final  decree  thereon  in  his  favor."  If  upon  the  replication 
to  the  plea  the  facts  are  found  parth'  for  complainant  and  partly  for  de- 
fendant the  court  may,  under  this  rule,  mould  its  relief  accordingly.^  Upon 
decision  for  plaintiff  on  replication  to  the  plea  he  was  formerly  entitled  to 
decree  forthwith,  the  defendant  being  debarred  from  answer  and  other  de- 
fenses, but  under  rule  3-4  the  court  should  now  rule  defendant  to  answer.9 
It  is  irregular  to  file  replication  only  to  the  answer  supporting  a  plea  and 
not  to  the  plea  as  well.io 

§  982,     Effect  of  failure  to  set  down  for  argument  or  take  issue. 

If  the  plaintiff  shall  not  reply  to  any  plea,  or  set  down  any  plea 
or  demurrer  for  argument  on  the  rule  day  when  the  same  is  filed, 
or  on  the  next  succeeding  rule  day,  he  shall  be  deemed  to  admit  the 
truth  and  sufficiency  thereof,  and  his  bill  shall  be  dismissed  as  of 
course,  unless  a  judge  of  the  court  shall  allow  him  further  time  for 
that  purpose. 

38th  equity  rule,  promulgated  March,  1842. 

Under  the  equity  rules  of  1822  this  penalty  only  attached  where  plaintiff 
did  not  reply  or  set  for  hearing  before  the  second  term  after  the  filing  of 
the  plea  or  demiuTer.i*  A  bill  will  not  be  dismissed  under  this  rule  unless 
the  party  had  proper  notice  under  rule  4i5  of  the  filing  of  the  plea  or  de- 
murrer,! 6  or  where  the  plea  or  demurrer  was  defective  as  respects  certifi- 
cate or  affidavit. 1"  The  rule  does  not  apply  to  a  case  where  the  demurrer 
has  been  overruled  and  there  is  no  plea.is  Plaintiff  cannot  insist  on  the 
imposition  of  this  penalty  against  him  when  defendant  has  waived  it  and 
the  cause  has  proceeded  to  decree  in  defendant's  favor.13  The  court  may 
refuse  to  dismiss  under  this  rule  where  no  regular  rule  day  is  observed 
and  the  practice  has  grown  up  of  entertaining  and  disposing  of  demurrers 
Informally,  and  on  every  day  of  the  term. 20  It  has  l)een  said  that  the  ob- 
ject of  this  rule  and  of  rule  .13!  was  to  speed  a  cause  during  vacation. 2 

THorn  V.  Detroit  D.  Co.   150  U.  S.  i-^Aute.  §  040. 

625.  37  L.  ed.  1203,  14  Sup.  C't.  Eep.  ifiXewbv   v.    Oreson.    etc.   R.   R.    1 

218:    see  McAleer  v.   Lewis.   75   Fed.  Sawy.   03,'  Fed.   Cas.   Xo.   10,145. 

734.  iTXational  Bank  v.  Insurance  Co. 

sSee  Earll  v.  Metropolitan  St.  Rv.  104  U.   S.  54,   26  L.  ed.  603. 

87  Fed.  528.                                            '  i^Poultnev    v.    Lafavette.    3   How. 

PWestervelt  v.  Librarv  Bureau,  118  SI.  11  L.  ed!  .503. 

Fed.  824,  55  C.  C.  A.  4.36;   see  post,  lOChicago.  etc.  R.   R.  v.   I'nion  R. 

§  985.  M.  Co.  100  U.  S.  702.  27  L.  ed.  1081, 

loSee   Reals  v.   Illinois  R.   R.    133  3  Sup.  Ct.  Rep.  594. 
U.  S.  200.  33  L.  ed.  60S.  10  Sup.  Ct.  20See  Eloctrolihration  Co.  v.  Jack- 
Rep.  314.  son.  .52  Fed.  773. 

14Ru1p  21   of  Eq.  Rules  of  ]  S22,  7  lAnte,   §  981. 

Wheat.  VI,  et  seq.  5  L.  ed.  376;   see  2Electrolibration    Co.    v.    Jackson, 

Poultney    v.   Lafayette.   3   How.   81.  52  Fed.  773. 
11    L.    ed.    .503;    Parton   v.    Prang.    3 
ClifF.  5.37.  Fed.  Cas.  No.  10,784. 

Fed.  Proc— 60.  945 


§   nS3  EQUITY   rROCEDURE.  [Code  Fed. 

§  983.     Demurrer  or  plea  not  to  be  overruled  because  less  ex- 
tensive than  might  be. 
'No  demurrer  or  plea  shall  be  lu-ld  l)a(l  and  overruled  upon  argu- 
ment, only  because  sueli  demurrer  or  plea  shall  not  cover  so  much 
of  the  bill  as  it  might  by  law  have  extended  to. 
36tli  equity  rule,  promulgated  March,  1S42. 

The  32ud  rul-e  permits  defendant  to  demur  to  part,  plead  to  part  and 
answer  as  to  the  rest. 5  The  part  of  the  bill  which  is  not  met  by  plea  or 
demurrer  must  of  course  be  met  by  answer. 

§  984.  —  because  the  answer  also  partly  covers  same  matters. 

]SJo  demurrer  or  plea  shall  be  held  bad  and  overruled  upon  argu- 
ment, only  because  the  answer  of  the  defendant  may  extend  to  some 
part  of  the  same  matter  as  may  be  covered  by  such  demurrer  or  plea. 
37tli  equity  rule,  promulgated  1842. 

The  32nd  rule  permits  defendant  to  demur,  plead  and  answer  to  different 
parts  of  a  bill.s  This  rule  and  the  36th  rule  are  first  found  in  the  equity 
rules  of  1842  and  do  not  appear  in  the  earlier  rules  of  1822.9  The  object 
of  this  ruleio  is  to  avoid  the  effect  of  the  prinicple  that  answer  is  a  waiver 
of  a  plea  or  demurrer  to  the  same  matter.n  It  saves  a  defendant  from 
the  effect  of  that  principle  where  his  answer  extends  to  "some  part"  of 
the  saane  matter,  but  not  where  the  answer  extends  to  the  whole  of  the 
matter  covered  by  the  plea  or  demurrer.  12  This  rule  does  not  apply  where 
a  plea  or  demurrer  extends  to  the  whole  bill;i3  and  plea  or  demurrer  can- 
not be  filed  at  the  same  time  with  an  answer  to  the  whole. i*  if  a  plea  be 
filed  with  an  answer  to  the  whole  bill,  it  is  superseded: is  or  may  be  ordered 
to  stand  as  part  of  the  answer. i«  Sometimes  a  plea  requires  answer  in 
its  support;!'?  but  in  such  cases  the  principle  that  answer  is  waiver  of  the 
plea  was  not  available  in  equity  practice  prior  to  the  above  rule,i8  so  that 
there  is  no  need  to  invoke  it  to  avoid  that  consequence. 

iAnte.  §  979.  79    Fed.    867:    Mercantile    T.    Co.    v. 

sAnte.  §  979.  Missouri,  etc.  Ry.  84  Fed.  383. 

9See  Haves  v.  Davton.   IS  Blatchf.         isHuntington 'v.    Laidlev,   79   Fed. 

420.  8  Fed!  702.         '  867;    see   :Mercantile    T.    Co.    v.   Mis- 

loHuntington   v.    Laidlev.   79    Fed.  souri,  etc.   Rv.  84   Fed.  383. 
867.                                             "  14 Ante,  §  979    [j]. 

iiFerguson  v.  O'Harra,  Pet.  C.   C.         isHudson  v.  Randolph.  66  Fed.  216. 

493,    Fed.    Cas.    No.    4,740:    Sims    v.  13  C.  C.  A.  402:  Marshal  v.  Otto.  .59 

Lvle.  4  Wash.   C.   C.   .301.   Fed.   Cas.  Fed.  249. 

Xo.  12.891:  Stearns  v.  Page.  1  Story,         leLcwis    v.    Baird,    3   :\rcLean,    56, 

204,  Fed.  Cas.  No.  13,339.  '  Fed.  Cas.  No.  8.316. 

i2Grant   v.    Phoenix    M.    L.    I.    Co.         ivAnte.  §  979 [k]. 
121  U.  S.  115,  30  L.  ed.  908,  7   Sup.         isSee   Lewis  v.   Baird,   3  McLean, 

Ct.  Rep.  841 ;  Huntington  v.  Laidlev,  56,  Fed.   Gas.  No.  8^316. 

"946 


Procedure]         COSTS  ON  PLEA  OR  DEMURRER  OVERRULED.  §  985    [b] 

§  985.  Costs  on  plea  or  demurrer  overruled — defendant  then  to 
answer. 
If,  upon  the  hearin^y-,  any  demurrer  or  plea  is  overruled,  the 
plaintiff"  shall  be  entitled  to  his  costs  in  the  cause  up  to  that  period 
unless  the  court  shall  be  satisfied  that  the  defendant  has  good 
ground,  in  point  of  law  or  fact,  to  interpose  the  same,  and  it  was 
not  interposed  vexatiously  or  for  delay. '^^^  And,  upon  the  overruling 
of  any  plea  or  demurrer,  the  defendant  shall  be  assigned  to  answer 
the  bill,  or  so  much  thereof  as  is  covered  by  the  plea  or  demurrer, 
the  next  succeeding  rule  day,  or  at  such  other  period  as,  consist- 
ently with  justice  and  the  rights  of  the  defendant,  the  same  can, 
in  the  judgment  of  the  court,  be  reasonably  done;  in  default 
Avhereof,  the  bill  shall  be  taken  against  him  pro  confesso,  and  the 
matter  thereof  proceeded  in  and  decreed  accordingly. "^^^ 
34th  equity  rule,  promulgated  March,  1842. 

[a]  The  old  rule — allowance  of  costs. 

Rule  20  of  the  equity  rules  of  1822  provided  that  "if  a  plea  or  demurrer 
be  overruled,  no  other  plea  or  demurrer  shall  be  thereafter  received,  but 
the  defendant  shall  proceed  to  ansM^er  the  plaintiff's  bill;  and  if  he  fail  to 
do  so  within  two  calendar  months,  the  same,  or  so  much  thereof  as  was 
covered  by  the  plea  or  demurrer,  may  be  taken  for  confessed,  and  the  mat- 
ter thereof  be  decreed  accordingly."!  So,  rule  22  declared  that  costs  should 
"be  paid  as  where  an  answer  is  adjudged  insufficient."2  A  plea  that  is 
palpably  bad  will  be  overruled  with  costs. 3  But  a  defendant  will  be  deemed 
to  have  had  "good  groimd"  for  interposing  plea  or  demurrer  if  he  has 
acted  in  good  faith  and  with  a  reasonable  belief  that  it  was  meritorious.* 

[b]  Defendant  to  answer  on  demurrer  or  plea  overruled  or  disproved. 
The  above  rule  provides  that  defendant  shall  answer  only  upon  the  over- 
ruling of  demurrer  or  plea.  It  does  not  expressly  apply  to  a  case  where 
plaintiff  has  taken  issue  of  fact  upon  a  plea  and  has  prevailed;  i.  e.,  where 
the  plea  has  been  "disproved."'  The  old  rule  was  that  after  plea  to  the 
Tuerits  was  disposed  on  an  issue  of  fact,  defendant  could  set  up  no  other 
defense  and  decree  thereupon  went  against  him.  Tt  seems,  however,  that 
rule  .34  applies  to  a  plea  disproved,  and  requires  the  court  to  direct  defend- 
ant to  answer  as  in  the  case  of  plea  overruled  because  insufficient  in  law.7 
In  otlier  words   rule  34  alters   the  old   chancery   practice   in   that   respect. 

iSee  7  Wheat.  X.  5  L.  ed.  376.  Kittson.  120  U.  S.  303,  .30  L.  ed.  684, 

2Ree  7  Wheat.  X.  5  L.  ed.  376.  7  Sup.  Ct.  Rep.  5.34;  Dalzell  v.  :Manu- 

3Soo  Matthews  v.  L.  &  G.  M.  Co.  2  facturing  Co.  14*)  U.  S.  315,  326,  327, 

Fed.  2.35,  236,  18  Blatchf.  84.  37  L.  ed.  749,  13  Sup.  Ct.  Rep.  886; 

•tChisholm  v.  .Johnson,  84  Fed.  384.  Stead    v.    Course,    4    Cranch,    413,    2 

TWestervelt  v.  Librarv  Bureau,  118  1..  ed.  663. 

Fed.  824,  .55  C.  C.  A.  43(5;   Farlev  v. 

947 


S  086  EQUITY   PROCEDURE.  [Code  Fed. 

The  dofendant  may  answer  as  of  right,  if  plea  or  demurrer  be  overruled^  and 
a  decree  pro  confesso  will  not  be  entered  on  overruling  of  plea,  unless  the 
court  is  satisfied  that  it  was  interposed  for  delay. 9  Where  defendant 
failed  to  answer  in  the  sixty  days  allowed  him  after  demurrer  overruled 
or  at  the  rule  day  following  the  overruling  of  a  subsequent  plea  in  abate- 
ment, there  was  no  error  in  ordering  decree  pro  confesso.io  The  defend- 
ant should  howevere  be  ruled  to  answer,  n 

§  986.     Costs  where   demurrer  or  plea  allowed — amendment  of 
bill — reply  to  plea. 

If,  upon  the  hearing,  any  demurrer  or  plea  shall  be  allowed,  the 
defendant  shall  be  entitled  to  his  costs.    But  the  court  may,  in  its 
discretion,  upon  motion  of  the  plaintiff,  allow  him  to  amend  his 
bill  upon  such  terms  as  it  shall  deem  reasonablc'^^^'^''^ 
35th  equity  rule,  promulgated  March,  1842. 

[a]     Costs  and  amendment. 

Rule  22  of  the  equity  rules  of  1822  provided  that  "upon  a  plea  or  de- 
murrer being  .  .  .  adjudged  good,  the  defendant  shall  have  his  costs;"i5 
but  there  was  no  provision  of  the  earlier  rules  for  amendment  of  the  bill. 
Permission  to  amend  is  discretionary  is  under  this  rvile,  and  not  matter  of 
right.i^  Unreasonable  delay  in  obtaining  leave  and  amending  is  good 
ground  for  refusal  of  leave  to  file.is  A  party  must  show  he  has  asked  per- 
mission to  amend  before  he  can  review  the  question  on  appeal. 1 9  Where 
plaintiff  asks  permission  to  amend,  to  explain  the  laches  which  led  the 
court  to  sustain  the  demurrer,  it  is  sometimes  the  court's  duty  to  grant 
such  permission.2  0  So  where  demurrer  is  sustained  for  misjoinder  of  par- 
ties plaintiff,  the  decree  may  very  properly  grant  leave  to  amend  by  strik- 
ing out  the  party  objected  to;i  or  permit  dismissal  as  to  him,  on  motion. 2 

s 

sWooster  v.  Blake,  7  Fed.  816.  682,  44  C.  C.  A.  673;  Boston,  R.  R. 

^American,  etc.  Co.   v.  Leeds,  etc.    v.  Parr,  98  Fed.  484. 
Co.  140  Fed.  981.  i'? National  Bank  v.  Carpenter,  101 

lOMcGregor  v.  Vermont  L.  &  T.  U.  S.  567.  25  L.  ed.  815;  Hunt  v. 
Co.  104  Fed.  709,  44  C.  C.  A.  146.        Rousmaniere,     2    Mason,     342,    Fed. 

11  lender  the  early  rules  this  was    Cas.  No.  6,898. 
prerequisite   to  entry   of  decree   pro        isAllis   Co.   v.   Withlaeoochee.   105 
confesso.   though   defendant  had  not    Fed.  682,  44  C.  C.  A.  673;  Boston  R. 
appeared      at     all :      Halderman     v.    R.  v.  Parr^  98  Fed.  484. 
Halderman,  Hemp.  407,  Fed.  Cas.  No.        isNational  Bank  v.  Carpenter,  101 
5.908;  see  ante,  §  977 [a].  U.  S.  567,  25  L.  ed.  815. 

i58ee  7  Wheat.  X.  5  L.  ed.  376.  20Lant  v.  Manley,  75  Fed.  634  21 

10 National  Bank  v.  Carpenter.  101    C.  C.  A.  457. 
U.   S.   567.   25  L.   ed.   815;    Ketehum        iVictor  T.  M.  Co.  v.  American  G. 
V.    Driggs,  6   McLean,    13.    Fed.   Cas.    Co.  118  Fed.  .50. 

No.   7.735;    Dwight  v.  Humphrevs.  3         2Walker  v.  Powers,  104  U.  S.  245, 
McLean.    lOL    Fed.    Cas.    No.    4>216;    26  L.  ed.  729. 
Allis  Co.  V.   Withlaeoochee,   105  Fed. 

948 


J 


I 


Procedure]      COSTS  WHERE   DEMURRER  OR  PLEA   ALLOWED.        §  98G    [bl 
If  instead  it  is  absolute,  it  slioiild  be  without  prejudice  to  another  suit. 3 

[b]     Right  to  reply  to  plea  sustained  as  legally  sufficient. 

While  the  equity  rules  nowhere  provide  in  terms  that  plaintiff  may  reply 
to  a  plea  which,  having  been  set  down  for  argument,  has  been  held  suf- 
ficient in  law.  it  is  settled  that  plaintiff  has  the  right  thereupon  by  reply 
to  take  issue  upon  its  truth. 5 

sHouse  V.  :\Iullen.  22  Wall.  42,  22  v.  Dalles  M.  R.  Co.  140  U.  S.  616,  3.5 

L.  ed.  838.  L.    ed.    565,    11    Sup.    Ct.   Rep.    988: 

sRhode  Island  v.  Massachusetts,  14  Mac\'eagh  v.  Denver,  etc.  Co.  85  Fed, 

Pet.  257,  10  L.  ed.  445 ;  United  States  75,  29  C.  C.  A.  33. 


049 


CHAPTER  2Y. 

EQUITY  PROCEDURE   (CONTINUED)— ANSWER,  REPLICATION  AND 

ISSUE. 

§  990.     The  answer — matters  pleadable  in  bar  may  be  included. 

§  997.     Signing  and  verification  of  answer. 

§  998.     Interrogatories  not  necessary  to  obtain  full  answer. 

§  999.     What  interrogatories  need  not  be  answered. 

§  1000.     Answer  not  evidence  where  answer  on  oath  waived. 

5j  1001.     Exceptions   to   answer — time   for  taking — formal   requisites. 

ij  1002.     — setting  exceptions  for  hearing  unless  answer  amended. 

>?  1003.     — answer  on  allowance  of  exceptions  and  penalty  for  failure. 

S  1004.     Payment  of  costs  upon  exceptions  allowed  or  overruled. 

i^  1005.     Setting  cause  for  hearing  on  bill  and  answer. 

^  10O6.     Amendment  of  answer  and  supplemental  answer. 

ij  10O7.     New  or  supplemental  answer  after  amendment  of  bill. 

i;   1008.     Full  costs  not  allowed  if  separate  answer  by  solicitor  for  several 

defendants  unnecessary'. 
■■   1009.     Limit  of  taxable  costs  on  answer. 
>?  1010.     Replication — time  of  filing — issue. 

|>  996.     The  answer — ^matters  pleadable  in  bar  may  be  included. 

The  rule,  that  if  a  defendant  submits  to  answer  he  shall  answer 
fully'^^^"'^'^^  to  all  the  matters  of  the  bill,  sliall  no  longer  apply  in 
eases  where  he  might  by  plea  protect  liimself  from  such  answer  and 
discovery.  1^^^  And  the  defendant  sball  be  entitled  in  all  cases  by 
answer  to  insist  upon  all  matters  of  defense  (not  l^eing  matters  of 
abatement,  or  to  the  character  of  tlie  parties,  or  matters  of  form"^^^) 
in  bar  of  or  to  the  merits  of  tlie  bill,  of  which  he  may  lie  entitled 
to  avail  himself  by  a  plea  in  bar:  and  in  such  answer  ho  shall  not 
be  compellable  to  answer  any  other  matters  than  lie  would  be  coni- 
])ellable  to  answer  and  discover  upon  filing  a  plea  in  bar  and  an 
answer  in  support  of  such  plea,  toucbing  tbe  matters  set  fortb  in 
the  bill  to  avoid  or  repel  tbe  bar  or  defense. f^^  Thus,  for  example, 
a  bona  fide  purchaser  for  a  valuable  consideration,  without  notice, 
may  set  up  that  defense  by  way  of  answer  instead  of  plea,  and  shall 
be  entitled  to  the  same  protection,  and  shall  not  be  compellable  to 

950 


Procedure]  THE    ANS^YEU— MATTERS    PLEADABLE.  §  99G   [b] 

make  any  further  answer  or  discovery  of  his  title  than  he  wouhl 
be  in  any  answer  in  support  of  such  plea.^^^^ 
39th  equity  rule,  promulgated  March.  1S42. 

[aj     The  answer  in  general. 

Rule  23  of  the  equity  rules  of  1822  provided  that  "The  defendant,  instead 
of  filing  a  formal  demurrer  or  plea,  may  insist  on  any  special  matter  in 
his  answer,  and  have  the  same  benefit  thereof,  as  if  he  had  pleaded  the  same 
matter,  or  had  demurred  to  the  bi]l."i  It  will  be  observed  that  rule  3!) 
supra  provides  for  answer  in  lieu  of  plea  only  and  not  in  lieu  of  demurrer. 
It  provides  for  the  substitution  of  answer  for  plea,  only  in  cases  of  plea  in 
bar  or  to  the  merits;  and  it  does  away  with  the  necessity  which  existed 
under  the  early  rule,  that  defendant  answer  fully  even  though  his  plea 
set  up  a  bar  to  the  relief.2  However  it  is  not  to  be  construed  as  forbid- 
ding the  setting  up  in  the  answer  of  matter  which  is  strictly  in  abatement. 3 
It  merely  leaves  the  pleader  in  such  a  case,  under  the  rule  which  requires 
him  to  answer  fully.*  An  answer  in  equity  has  two  distinct  purposes,  viz.: 
the  setting  up  of  the  defense,  and  the  discovery  of  facts  in  response  to 
plaintiff's  interrogatories.  It  is  a  pleading,  and  also  an  important  feature 
of  the  proof.  However,  the  discovery  feature  of  the  answer,  once  of  very 
great  importance,  is  now  of  but  slight  and  infrequent  value,  since  the 
modern  statutes  everywhere  permit  the  parties  to  be  called  as  witnesses. » 
Its  evidential  value  is  still  further  restricted  by  rule  41,6  which  permits 
plaintiff  to  destroy  its  force  in  that  respect,  by  waiver  of  answer  under 
oath,  and  by  rule  39  supra  abrogating  the  need  for  full  answer  if  defendant 
sets  up  matter  available  as  plea  in  bar.  The  answer  now  may  sometimes 
be  no  more  than  a  plea.T  Hence  it  is  chat  the  rules  testing  the  sufficiency 
of  answer,  observed  at  a  time  when  the  answer  was  an  important  part  of 
the  proof,  are  not  now  safe  guides  in  the  majority  of  cases. s 

[b]     Form  and  effect  of  answer  in  general. 

A  fact  admitted  by  answer  need  not  be  proved. 12  If  undonied  an  alle- 
gation of  the  bill  is  presumed  true.  1 3  If  the  answer  after  admitting  alle- 
gations of  the  bill,  sets  up  facts  in  avoidance  they  must  be  proven,  n  An 
admission  in  an  an.swer  cannot  supply  the  omission  of  a  material  fact  in 

iSee  7  Wheat.  X.  5  L.  ed.  376.  spield  v.  Hastings.  05  Fed.  280. 

2See  Gaines  v.   Agnellv.    1    Woods.         i2riarke  v.   White.    12   Pet.    190,  0 

238.  Fed.  fas.  No.  5.173."  L.    ed.    1046:    Clements    v.    Moore.    6 

3E.  g.  Rule  52.  deals  with  the  case  Wall.  .?lo.  IS  L.  ed.  786. 
wliere   the   answer  suggests   a   defect         isHarpending  v.  Dutch  R.  Church, 

of  parties:   post.  §  1025.  10  Pet.  487.  10  L.  ed.   1029. 

■»Infra.  note[c].  i^Clarke   v.  White.    12   Pot.   190,  9 

5Ex  parte  Bovd.  105  I'.  S.  657.  26  L.   ed.    1046:     Clements   v.   Moore.  6 

L.    ed.    1204:    Field    v.    Hastings,   65  Wall.    315,    18   L.    ed.    786;    Bush    v. 

Fed.  280.  Alarshull.  0  TTow.  289.  12  L.  ed.  440; 

ePost.  §  1000.  Randall    v.    Phillips.    3    i^Iason,    378, 

"See  Stinison    v.    Raw.son.  02  Fed.  Fed.  Cas.  Xo.  11.555. 
426. 

951 


§   996   Ic] 


EQUITY   PROCEDURE. 


[Code   Fed. 


the  bill  so  as  to  justify  relief  thereon. is  if  a  charge  made  upon  infor- 
iiiatioii  and  belief  in  an  answer,  is  not  supported  by  proof  at  the  hearing 
it  is  to  be  deemed  unproven.is  The  defense  of  payment  or  set  off  is  not 
required  to  be  pleaded  according  to  any  particular  form.i"  An  answer  may 
set  up  all  matters  of  defense  in  bar  or  to  the  merits  of  the  billji'J  and 
matters  of  law  as  well  as  fact.is  It  may  set  up  several  defenses  but  they 
.should  be  separately  and  clearly  alleged.20  If  they  are  inconsistent  the 
lesult  is  to  deprive  the  defendant  of  the  benefit  of  either.  1  A  joint  answer 
is  permissible  if  all  the  parties  swear  to  it. 2  An  answer  need  not  be  ac- 
companied by  the  certificate  of  merits  required  in  the  case  of  plea  and  de- 
murrer.3  It  may  not  be  excepted  to  because  not  properly  entitled. *  A 
paper  on  file  may  from  circumstances  be  presumed  to  be  the  answer  al- 
though no  endorsement  of  filing  appears  thereon. 5  An  answer  should  be 
responsive,6  though  this  does  not  mean  that  new  matter  or  a  defense 
founded  thereon  is  to  be  held  objectionable  because  irresponsive. 7  Answer 
must  not  be  impertinent, 8  or  irrelevant, 9  or  scandalous.  But  the  fact 
that  it  is  rambling  and  verboseio  is  not  ground  for  motion  to  strike  out. 

[cj     The  general  rule — full  answer  necessary. 

It  is  still  the  general  rule  that  defendant  nuist  answer  fully.  "The  ma- 
terial allegations  in  the  bill  of  complaint  ought  to  be  answered,  and  ad- 
mitted or  denied,  if  the  facts  are  within  the  knowledge  of  the  respondent, 
and,  if  not,  he  ought  to  state  what  his  belief  is  upon  the  subject,  if  he  has 
any;  and  if  he  has  none,  and  cannot  form  any,  he  ought  to  say  so,i3  and 
call  upon  the  plaintiff  for  proof  of  the  alleged  facts  or  waive  that  branch 
of  the  controversy."  14     It  is  not  proper  to  ignore  allegations  of  the  bill  by 


15 Jackson  v.  Ashton,  11  Pet.  249, 
n  L.  ed.  698. 

leMonroe  C.  Co.  v.  Becker,  147  U. 
S.  47,  37  L.  ed.  72,  13  Sup.  Ct.  Rep. 
217. 

i7Bausman  v.  Dennv,   73  Fed.  69. 

isHolton  V.  Guinn,  "65  Fed.  450; 
Von  Schroder  v.  Brittain.  98  Fed. 
169. 

i9Farmers'  L.  &  T.  Co.  v.  Northern 
P.  R.  R.  76  Fed.  15. 

2  0Graham  v.  Mason,  4  Cliff.  88, 
Fed.  Cas.  No.  5,671:  and  not  intro- 
duced by  expanding  denials  of  alle- 
gations in  the  bill:  Osgood  v.  Oloe 
Co.  69  Fed.  291. 

lOzark  Co.  v.  Leonard,  24  Fed. 
660. 

2Davis  V.  Davidson,  4  McLean,  136, 
Fed.  Cas.  No.  3,631. 

sBailev  Co.  v.  Young,  12  Blatehf. 
199,  1  Ban.  &  A.  362,  Fed.  Cas.  No. 
751. 

4McCorray  v.  O'Connor,  87  Fed. 
586,  31  C.  C.  A.  114:  Osgood  v.  Aloe, 
etc.  Co.  69  Fed.  291. 


sBoyd  v.  Wyley,  18  Fed.  355. 

6 See  Comstock  v.  Herron.  45  Fed. 
660;  Prentiss  Co.  v.  Godchaux.  66 
Fed.  234,  13  C.  C.  A.  420. 

TAdams  v.  Bridge  Co.  6  Fed.  179; 
see  Gunnell  v.  Bird,  10  Wall.  308, 
19  L.  ed.  913;  Harrison  v.  Perea,  168 
U.  S.  311,  42  L.  ed.  478,  18  Sup.  Ct. 
Rep.  129;  Whittemore  v.  Patten,  84 
Fed.  51 ;  Florida  Co.  v.  Finlayson, 
74  Fed.  671;  Langdon  v.  Goddard,  3 
Story  13,  Fed.  Cas.  No.  8,061;  Os- 
good V.  Aloe  Co.  69  Fed.  291;  Bar- 
rett V.  Twin,  etc.  Co.  Ill  Fed.  45. 

sLangdon  v.  Goddard,  3  Story,  13, 
Fed.  Cas.  No.  8,061. 

9 See  Miller  v.  Buchanan.  5  Fed. 
366. 

10  Stokes  V.  Farnsworth,  99  Fed. 
836. 

isSee  In  re  Holladay.  27  Fed.  830. 

i4Brown  v.  Pierce,  7  Wall.  211.  19 
L.  ed.  136;  Peters  v.  Tonopali  M.  Co. 
120  Fed.  588;  Commonwealth  T.  Co. 
V.   Cummings,   83    Fed.   767;    Brooks 


952 


■ 


Procedui-eJ  THE    ANSWER — MATTERS    PLEADABLE,  §  996   [d] 

omitting  all  notice  of  them; is  nor  to  deny  generally  all  allegations  not  ad- 
mitted, ifi  Defendant  need  not  answer  every  detail  of  evidence  which  plain- 
tiff has  included  in  his  bill,  provided  he  meets  every  allegation  essential  to 
plaintiff's  case.i'  He  need  not  answer  immaterial  allegations.! s  A  general 
answer  is  sufficient  to  general  allegations.! »  An  averment  in  the  answer 
that  defendant  "does  not  admit"  certain  facts  has  been  held  not  ground  for 
exception. 20  A  denial  of  fraud  is  insuflicient  without  a  denial  of  the  facts 
from  which  fraud  is  inferred.!  Denial  upon  information  and  belief  is  suffi- 
cient if  defendant  has  no  personal  knowledge.2  Denial  according  to  "rec- 
ollection and  belief"  is  insufHcient  where  allegation  is  direct  that  the 
thing  was  done  by  defendant. 3  A  want  of  knowledge  of  allegations  as  to 
which  defendant's  knowledge,  if  any,  must  be  direct  and  personal,  must 
be  expressly  averred  and  denial  on  information  and  belief  is  insufficient. 4 
But  a  mere  statement  that  defendant  has  no  knowledge  is  neither  an  ad- 
mission nor  a  denial.s  An  answer  that  defendant  had  "no  knowledge,  in- 
formation and  belief"  is  insufficient  where  the  question  was  as  to  his 
knowledge,  remembrance,  information  and  belief."6  A  literal  denial  will 
not  be  taken  as  an  admission  at  the  hearing,  although  on  exception  it 
might  have  been  held  insufficient."  Answers  to  interrogatories  must  be 
responsive  ;S  and  if  responsive  cannot  be  impertinent. 9  Where  an  answer 
is  false  in  fact,  upon  a  material  fact  as  to  which  defendant  could  have 
made  no  mistake,  it  may  be  wholly  disregarded.! o  If  the  answer  is  not 
full  plaintiff's  remedy  is  by  exception;!!  and  if  after  repeated  exceptions 
the  defendant  still  fails  to  make  proper  disclosure,  the  bill  may  be  taken 
pro  confesso  as  to  that  portion.! 2 

[d]  —  answer  by  corporation. 

Although   a   corporation    cannot   be    required   to   answer   under   oath,   it 
can  be  required  to  answer  and  must  answer  fully ;!5    and  its  answer  may 

V.  Bvam,   1   Storv  296,  Fed.  Cas.  No.  sTavlor    v.     Luther,   2    Sum.    228, 

1,947.                     "  Fed.  Cas.  No.  13,796. 

isCommon wealth  T.  I.  Co.  v.  Cum-  4Kittredge   v.    Claremont   Bank.    1 

mings.  83  Fed.  767.  W.  &  ]\i.  244.  Fed.  Cas.  No.  7.S59. 

leField  v.  Hastings.  65  Fed.  279.  ^Brooks    v.    Byam,    1     Story.    206, 

iTHolton  V.  Guinn.  65  Fed.  450.  Fed.  Cas.  No.  1.947. 

!8Hardeman     v.     Harris,    7    How.  eBrooks    v.    Byam,    1    Story.    296, 

729,   12  L.  ed.   889:   Peters  v.  Tono-  Fed.  Cas.  No.  1,947. 

pah  M.  Co.  120  Fed.  588.  ^United  States  v.  Ferguson.  54  Fed. 

laParsons   v.   Cumming,   1   Woods,  28. 

461.  Fed.  Cas.  No.  10,775.  s Walker  v.  Derby,  5  Biss.  134,  Fed. 

20Sclniltz  v.  Phenix  I.  Co.  77  Fed.  Cas.  No.   17,068;   Sargent  v.  Larned, 

390.     Thiii  case  was  reversed  on  the  2  Curt.  340.  Fed.  Cas.  No.  12.364. 

merits:    Phenix   Ins.   Co.   v.   Schultz,  sLownsdale  v.  Portland,  Doady.  1, 

80  Fed.  337,  25  C.  C.  A.  453.  Fed.    Cas.    No.    8.578:     Chapman    v. 

iWormeley  v.  Wormelev,  1  Brock.  School    Dist.    Deady,    108,    Fed.    las. 

330,   Fed.   Cas.   No.   18.047.  No.  2.607. 

2Slater  v.  :\[axwell,  6  Wall.  274,  18  !oScammon  v.  Hobson,  1  Hask.  406. 

L.   ed.   796:    Bobinscm    v.    M.-nidell,   3  Fed.  Cas.  No.  12.4.34. 

Cliff.  169,  Fed.  Cas.  No    11.959.     But  !iSee  post.  §  1101. 

it  does  not  require  two  witnesses  in  !2Hale    v.    Con.    Ins.    Co.    20    Fed. 

rebuttal:      Earle    v.    Art    L.    P.    Co.  344. 

95  Fed.  544.  isGamewell    Co.   v.   New   York,  31 

953 


§  996   [e]  EQUITY   PROCEDURE.  [Code  Fed. 

be  excepted  to  for  insufliciency  in  that  respect. is  When  a  bill  requires 
answer  as  to  information  and  belief,  a  defendant  corporation  must  by  its 
officers  make  full  inquiries  before  answering. i"  A  corporation  cannot  any 
more  than  an  individual  defendant,  deny  merely  upon  information  and 
belief  where  knowledge  must  be  personal  and  direct  if  it  exist  at  all,  and 
want  of  knowledge  should  be  averred. 1 5,  Where  the  answer  of  a  corpora- 
tion is  upon  the  oath  of  an  officer  having  personal  knowledge  as  to  the 
matters  alleged,  it  is  evidence  within  the  rule  requiring  two  witnesses 
or  one  and  corroborating  circumstances  to  overcome  it;i9  otherwise  where 
the  officer  has  not  personal  knowledge. 20 

[e]     Where  full  answer  unnecessary. 

Under  rule  44,  interrogatories  which  are  improper  and  therefore  de- 
murrable, need  not  be  answered;  3  although  the  pleader  should  specify  the 
reasons  for  such  failure  to  answer.  Under  rule  3.9  supra,  defendant  is  ex- 
cused from  answering  fully  to  the  allegations  or  interrogatories  of  a  bill 
where  his  answer  sets  up  the  equivalent  of  a  plea  in  bar  or  to  the  merits. 
This  rule  takes  from  plaintiff  the  benefit  of  full  answer  and  leaves  him 
with  the  burden  of  proving  his  bill.  His  compensation  is  the  right  to 
summon  defendant  as  a  witness.  It  results  from  this  rule  that  where  the 
answer  sets  up  a  bar  to  the  bill,  it  is  no  longer  ground  of  exception  that 
it  does  not  fully  answer  the  whole  bill.*  However,  if  the  matter  set  up  in 
bar  is  at  variance  with  allegations  in  the  bill,  defendant  should  meet  those 
allegations  in  the  answer,  just  as  a  plea  in  bar  sometimes  requires  answer 
to  variant  allegations  of  th"  bill,  to  be  filed  in  support  of  the  plea. 5  Other- 
wise plaintiff"  might  set  down  the  ease  on  bill  and  answer,  whereupon  the 
allegations  of  the  bill  would  avail  against  the  answer  which  failed  to  meet 
them.  The  mode  of  proceeding  and  the  effect  of  different  modes,  where  a 
defendant  has  filed  other  than  a  full  answer  in  reliance  upon  rule  39,  is 
thus  stated  by  Mr.  Justice  Bradley :  "If  the  bar  set  up  and  claimed  as  such 
be  insufficient,  or  if  it  be  unsupported  by  proper  averments,  or  by  a  proper 
answer  to  rebut  allegations  of  the  bill  repugnant  to  the  bar,  the  com- 
plainant may  except  for  insufficiency,  set  the  cause  down  on  bill  and 
answer  only,  or  file  a  replication  and  proceed  to  proofs,  according  to  the 
exigency  of  the  case.     If  the  bar  set  up  should  be  insufficient  as  such,  I 

Fed.  312;  Colijato  V.  Compaarnie  Fran-  20Savings  &   L.   Soc.   v.   Davidson, 

caise,  23  Elatchf.   86,  23  Fed.  82.  97  Fed.  696,  38  C.  C.  A.  365. 

leXational.  etc.  Co.  v.  Interchange-  3Post.  §  999:  Fuller  v.  Knapp,  24 
able.  etc.  Co.  83  Fed.  26;  contra  Fed.  100;  Fed.  etc.  Co.  v.  Inter- 
United  States  V.  McLaughlin,  24  national,  etc.  Co.  119  Fed.  385; 
Fed.  S23.                                      "  Boyer  v.  Keller.  113  Fed.  580. 

I'Kittredge  v.  Claremont  Bank.  1  ^Gaines  v.  Agnellv.   1  Woods,  238. 

W.  &  M.  244,  Fed.  Cas.  No.  7.859!  Fed.  Cas.  No.  5,173 :' Samples  v.  City 

isBurpee   v.    First    Nat.    Bank.    5  Bank.   1    Woods,   523.   Fed.   Cas.   No. 

Biss.  405.   Fed.   Cas.  No.  2,185.  12,278. 

isGantt   V.    Cox.   etc.   Co.    199   Pa.  5See      ante.     §     97n[kl.      This     is 

St.    20s,    48    Atl.    992;    Carpenter   v.  obvious  from  the  wording  of  rule  39, 

Pro\"idence.  etc.  Ins.  Co.  4  How.  219,  supra. 
11    L.   ed.  931. 

'.154 


Procedure]  THE    ANSWER—MATTERS    PLEADABLE.  §   996    [g] 

think  the  complaint  would  he  entitled  to  except,,  a.s  for  want  of  a  full 
answer. 6  To  avoid  answering  the  exceptions,  the  defendant,  in  such  case, 
would  require  leave  of  the  court  before  he  could  amend  the  bar  set  up  in 
the  an.swer.  If,  instead  of  excepting,  the  complainant  should  go  to  proofs, 
the  burden  would  be  on  him  to  prove  his  bill,  and  on  the  defendant  to 
prove  his  bar,  each  being  entitled  to  examine  the  other  as  a  witness.  If 
on  the  other  hand,  he  should  set  the  cause  down  for  hearing  on  bill  and 
answer  only,  the  answer  would  have  to  be  taken  as  true  and  the  bar  tliere- 
in  as  proved;  and  though  insufficient  as  a  defense,  the  complainant  could 
not  haAe  a  decree  unless  the  answer  admitted  those  allegations  of  the  bill 
on  which  the  prayer  for  relief  was  founded.'"'  It  is  proper  practice  for 
a  defendant  answering  by  matter  in  bar  to  claim  it  in  his  answer  as  such 
bar  and  as  excuse  under  this  this  rule,  for  failure  to  answer  in  full.s 

It  had  been  held  that  this  rule  cannot  be  invoked  by  a  defendant  who 
by  answer  sets  upon  every  conceivable  matter  in  defense,  since  a  plea  sets 
up  some  single,  distinct  conclusive  defense. 9  Xor  does  the  rule  authorize 
the  raising  of  a  defense  in  the  answer  wliich  has  already  been  adjudged  bad 
on  plea.io 

[f]  Pleas  in  abatement — to  the  jurisdiction,  character  of  parties,  etc. 
Pleas  in  abatement  are  excluded  from  the  operation  of  the  39th  rule. 1 5 

It  was  formerly  the  rule  that  where  the  bill  averred  the  requisite  diverse 
citizenship  defendant  could  not  controvert  the  allegation  by  answer  but 
was  required  by  rule  39  to  file  a  special  plea. 1 6  But  this  rule  was  changed 
by  the  passage  of  an  act  of  1875.1"  A  defect  of  parties  may  be  taken  ad- 
vantage of  by  answer. IS 

[g]  Procedure  after  answer  filed — where  answer  insufficient. 

If  a7i  answer  is  defective  in  any  of  the  requisite  formalities,  plaintiflF 
may  move  to  strike  it  out  or  take  it  off  the  file.i  Plaintiff  may  set  the 
cause  for  hearing  on  bill  and  answer  if  of  opinion  that  by  the  uncontro- 
verted  allegations  of  the  bill,  the  admissions  of  the  answer,  and  the  legal 
insufficiency  of  any  affirmative  matter  therein,  he  is  entitled  to  a  decree. 2 

6E.   g.   see   McClaskev   v.   Barr,   40  i^See  Ante,   §   818;   Nashua  R.   R 

Fed.  563.                           "  v.  Lowell  R.  R.  136  U.  S.  373,  34  L 

TGaines  v.  Agnellv,  1    Woods.  238,  ed.    3G7,    10     Sup.     Ct.     Rep.    1,007 

Fed.  Cas.  No.  5,173.'  Bland  v.  Fleeman,  29  Fed.  672:  Edi 

8 See  Gaines  v.  Agnellv.   1    Woods,  son  Co.  v.  United  States  Co.  35  Fed 

238.  Fed.  Cas.  No.  5,173.'  136;    Simon   v.   House,  46   Fed.  319; 

sNational.  etc.  Co.  v.  Interchange-  Missouri  R.  R.  v.  ^Meeh,  69  Fed.  755, 

able,  etc.  Co.  83  Fed.  26.  16  C.  C.  A.  510,  .30  L.R.A.  250. 

loPentlarge  v.   Pentlarge,    22    Fed.  isSee  post.  ?  1025. 

412,   22   Blatchf.    120.  iSee  Bailev  W.  M.  Co.  v.  Young,  12 

isUnited  States  v.  Gillespie,  6  Fed.  Blatchf.  199,"  Fed.  Cas.  No.  751  :  Put- 

803,  nam  v.  New  Albany,  4  Biss.  365,  Fed. 

isWickliffe  V.  Owings,  17  How.  51,  Cas,    No.    11,481 :'  Allen    v.    Mayor, 

15  L.  ed.  44:   Pond  v.   Vermont,  etc.  etc.  18  Blatchf.  239,  7  Fed.  483. 

R.  R.  12  Blatch.f.  280,  Fed.  Cas.  No,  2See  post,  §  1005. 
11.265:   Holmes  v.  Oregon,  etc.  R.  R. 
9  Fed.  238,  7  Sawv.  380. 

955 


§   997  EQUITY   PROCEDURE.  [Code   Fed 

If  the  answer  is  not  full  or  contains  impertinent,  or  scandalous  matter  the 
proper  course  is  to  take  exceptions  thereto; 3  and  not  to  move  to  strike  out.< 
If  none  of  these  objections  are  available  plaintiff  should  proceed  to  rep- 
lication and  issue; 5  unless  he  desires  to  amend  his  bill. 6  Demurrer  to  an 
answer  is  never  proper. 7 

§  997.     Signing  and  verification  of  answer. 

Every  defendant  may  swear  to  his  answer  before  any  justice  or 
judge  of  any  court  of  the  United  States,  or  before  any  commis- 
sioner appointed  by  any  circuit  court  to  take  testimony  or  deposi- 
tions, or  before  any  master  in  chancery  appointed  by  any  circuit 
court,  or  before  any  judge  of  any  court  of  a  State  or  Territory,  or 
before  any  notary  public. 

59th  equity  rule,  as  amended  1889. 

The  amendment  of  March  5,  188910  to  the  rule  as  promulgated  in  March 
1842  consisted  in  the  addition  of  the  words  "or  before  any  notary  public." 
Answers  do  not  require  certificate  of  merits  by  the  counsel,  as  in  the  case 
i)f  demurrers  and  pleas.n  Since  the  amendment  of  1889  it  would  seem 
that  an  answer  may  be  verified  abroad  before  a  notary  public  duly  certi- 
fied by  a  United  States  consular  officer,  or  by  a  secretary  of  legation  or 
consular  officer  himself. 12  The  early  rule  was  that  an  answer  from  be- 
yond the  seas  must  be  taken  by  a  commissioner  under  a  dedimus  from  the 
court.is  By  rule  91  affirmation  in  lieu  of  oath  is  valid.i*  Plaintiff  may 
waive  the  requirement  of  answer  under  oath. is  An  answer  must  be  signed 
by  counsel  unless  taken  before  commissioners.! 6  The  general  rule  is 
that  an  answer  must  be  signed  by  the  party  as  well  as  by  counsel, 1 7  al- 
though the  equity  rules  do  not  expressly  require  it.  A  corporation  answer- 
ing a  bill  of  discovery  should  do  so  under  its  corporate  seal.is 

§  998.     Interrogatories  not  necessary  to  obtain  full  answer. 

It  shall  not  hereafter  be  necessary  to  interrogate  a  defendant 
specially  and  particul  irly  upon  any  statement  in  the  bill,  unless  the 
complainant  desires  to  do  so,  to  obtain  a  discovery. 

Order   of   Dec.    1850,   repealing   40th   equity   rule   promulgated   March, 
1842. 

3See  post.   §   1001.  335.   Fed.   Cas.  No.   11,607;    Herman 

4Stokes  V.  Farnsworth,  99  Fed.  837.  v.  Herman.  4  Wash.  C.  C.  555,  Fed. 

5 See  post,  §  1005.  Cas.  No.  6,407. 

6Ante.  §  957.  i^See  ante.  §  938. 

'See  ante,  §  979 [a].  isSee  post.  §  1000. 

lOSee  129  U.  S.  701.  leDavis    v.     Davidson.   4  McLean, 

iiMcGorrav  v.   O'Connor,   87   Fed  136,  Fed.  Cas.  Xo.  3.031. 
586.  31   C.  C.\\.  114.  i^Storv  Eq.   PI.    §   875;    Holton   v. 

i2See   R.    S.   §    1750,   U.    S.   Comp.  Guinn,   65  Fed.   450. 
Stat.  1901,  p.  1196.  isContinental  Xat.  Bank    v.  Heil- 

isRead  v.  Consequa,  4  Wash.  C.  C.  man,  66  Fed.   184. 

956 


Procedure]  ANSWER  NOT  EVIDENCE.  §   1000 

At  the  December  term  18501  it  was  "ordered  that  the  fortieth  rule 
.  .  .  be  and  the  same  is  hereby  repealed  and  annulled.  And  it  shall  not 
hereafter  be  necessary"  etc.,  as  stated  above.  The  40th  rule  originally  pro- 
vided that  "A  defendant  shall  not  be  bound  to  answer  any  statement  or 
charge  in  the  bill,  unless  especially  and  particularly  interrogated  there- 
to; and  a  defendant  shall  not  ue  bound  to  answer  any  interrogatory  in 
the  bill,  except  those  interrogatories  which  such  defendant  is  required  to 
answer:  and  where  a  defendant  shall  answer  any  statement  or  charge  in 
the  bill  to  which  he  is  not  interrogated,  only  by  stating  his  ignorance  of 
the  matter  so  stated  or  charged,  such  answer  shall  be  deemed  impertinent." 
There  was  no  similar  provision  in  the  rules  of  1822.2  The  rule  as  original- 
ly adopted  was  construed  in  several  eases. 3  T^Tiile  a  party  must  now, 
without  interrogatories,  answer  as  fully  as  the  rules  of  equity  pleading 
require,*  it  is  still  advisable  to  propound  interrogatories  especially  if 
discovery  is  part  of  the  purpose  of  the  bill.  5 

§  999.     What  interrogatories  need  not  be  answered. 

A  defendant  shall  be  at  liberty,  by  answer,  to  decline  answering 
any  interrogatory,  or  part  of  an  interrogatory,  from  answering 
which  he  might  have  protected  himself  by  demurrer;  and  he  shall 
be  at  liberty  so  to  decline,  notwithstanding  he  shall  answer  other 
parts  of  the  bill  from  which  he  might  have  protected  himself  by 
demurrer. 

44th  equity  rule  promulgated  IMarch,  1842. 

Where  a  defendant  declines  to  answer  some  of  the  interrogatories  he 
should  specify  each  and  state  the  reason  for  declining  to  answer  with  tin; 
same  distinctness  as  though  he  had  demurred.8  If  defendant  claims  that 
answer  to  an  interrogatory  would  disclose  trade  secrets  he  should  so  state.9 
It  is  of  course  also  proper  for  defendant  to  demur  specially  to  improper 
interrogatories,  i  o 

y 

§  1000.     Answer  not  evidence  where  answer  on  oath  waived. 

If  the  complainant,  in  his  bill,  shall  waive  an  answer  under  oath, 
or  shall  onlj^  require  an  answer  under  oath  with  regard  to  certain 
specified  interrogatories,  the  answer  of  the  defendant,  through  un- 
der oath,  except  such  part  thereof  as  sball  be  directly  responsive  to 

iSee  10  How.  V.  ev  W.  M.  Co.  v.  Young.  12  Blatchf. 

2See  7  ^Vheat.  V.  et  seq.  5  L.  ed.  199,  Fed.  Cas.  Xo.  751   (1874),  where 

375.  the    original    rule    40    is    apparently 

sSee  Treadwell  v.  Cleveland,  .3  Mc-  treated  as  in  force. 

Lean.    283.     Fed.     Cas.     No.    14.155;  sBoyer  v.  Keller.  113  Fed.  580. 

Langdon   v.    Goddard,    3     Story.   13,  'J Federal,  etc.  Co.  v.  International, 

Fed.  Cas.  Xo.  8,061.  etc.  Co.   119   Fed.  385. 

4 Ante.  §  996  [c].  loCoop     v.     Development    Inst.   47 

5 Parsons   v.   Cummings,   1    Woods,  Fed.  899,  901. 
461.  Fed.  Cas.  Xo.  10,  775.    See  Bail- 

957 


§   loOO 


EQTMTY    PROCEDURE. 


[Code  Fed. 


such  interrogatories,  shall  not  be  evidence  in  his  favor,  unless  the 
cause  be  set  down  for  hearing  on  bill  and  answer  only;  but  may 
nevertheless  be  used  as  an  affidavit,  with  the  same  effect  as  here- 
tofore, on  a  motion  to  grant  or  dissolve  an  injunction,  or  on  any 
other  incidental  motion  in  the  cause;  but  this  shall  not  prevent  a 
defendant  from  becoming  a  witness  in  his  own  behalf  under  section 
three  of  the  act  of  Congress  of  July  2,  1864.1^ 

Amendment  of  41st  equity  rule,  promulgated  at  ])ecember  term,  1871. 

The  original  rule  was  concerned  with  the  form  of  interrogatories  is  and 
is  not  affected  by  this  amendment.  Prior  to  the  amendment,  the  rules  of 
equity  pleading  made  the  answer  evidence  for  defendant,  even  a  defen- 
dant corporation  17  to  be  overcome  only  by  two  witnesses  or  one  witness  and 
corroborating  circumstances, is  unless  plaintiff  waived  answer  under  oalh 
and  defendant  accepted  the  waiver.iu  The  attempted  waiver  could  be 
thwarted  if  defendant  answered  under  oath  notwithstanding  it. 20  Hence 
complainant  could  not  prevail  where  defendant's  answer  was  under  oath 
and  uncontradicted  1  or  impugned  only  by  one  witness. 2  ^ 

This  rule  still  applies  where  plaintiff  fails  to  waive  answer  on  oath;  and 
he  must  produce  two  witnesses,  or  one  and  corroborating  circumstances  to 
overthrow  verified  answer.?  But  since  the  enactment  of  the  law  of  1864.4 
permitting  parties  to  be  summoned  as  witnesses  there  has  been  an  ob- 
vious propriety  in  recognizing  the  superior  value  of  testimony  procured  by 
oral  examination,  and  relegating  the  answer  to  the  rank  of  an  ordinary 
pleading.  Hence  by  waiving  answer  under  oath  plaintiff  can  now  de- 
stroy the  evidential  value  of  the  answer;    except  for  purposes  of  a  hearing 


isSee  post,  §  1735.  et  seq. 

16 See  ante,  §  951. 

i7See  ante,  §  99ti[d]. 

isTobey  v.  Leonard,  2  Cliff.  40, 
Fed.  Cas.^No.  14.067:  Oilman  v.  Lib- 
bev,  4  Cliff.  447.  Fed.  Cas.  Xo.  5,445; 
Hay  ward  v.  Nat.  Bank,  4  Cliff,  294, 
Fed.  Cas.  No.  6,273;  Ciernor  v. 
Boccaline,  2  Wash.  C.  C.  199.  Fed. 
Cas.  Xo.  5.366;  \^■nlker  v.  DeVbv,  5 
Biss.   134.  Fed.  Cas.  Xo.  17,068. 

19 Patterson  v.  Oaines,  6  How.  588, 
12  L.  ed.  553. 

20Holbrook  v.  Black.  18  L.  R.  89, 
Fed.  Cas.  Xo.  6.590;  Pleath  v.  Erie 
Ry.  8  Blatchf.  347.  Fed.  Cas.  Xo. 
6,300;  see  Amory  v.  Lawi'ence.  3 
Cliff.  524,  Fed.  Cas.  Xo.  330.  and 
Stewart  v.  Allen,  47  Fed.  400.  which 
fail  to  note  change  in  rule  since 
1871. 

iLenox  v.  Prout,  3  Wheat.  520,  4 
L.  ed.  449:   Union  Bank  v.  Gearv,  5 


Pet.  98,  8  L.  ed.  60;  Higbee  v.  Hop 
kins.  1  Wash.  C.  C.  230.  Fed.  Cas. 
Xo.  6,466;  Carpenter  v.  Prov.  W.  1. 
Co.  4  How.  185,  11  L.  ed.  931 ;  Hughes 
V.  Blake,  1  Mason,  515,  Fed.  Cas. 
No.  6.845;  Lanodon  v.  Goddard,  2 
Story,  267,  Fed.  Cas.  No.  8.060; 
Could  V.  Gould,  3  Story,  516,  Fed. 
Cas.  Xo.  5.637;  Creelev  v.  Smith.  3 
Storv,  659.  Fed.  Cas.  N"o.  6,722. 

2fowne  V.  Smith,  1  W.  &  M.  115, 
Fed.  Cas.  Xo.  14,115;  Delano  v. 
Winsor,  1  Cliff.  501,  Fed.  Cas.  Xo. 
3,754 :  Pomerov  v.  Manin,  2  Paine, 
476.  Fed.  Cas.  No.  11,260. 

3Slessinger  v.  Buckingham,  17  Feil. 
454.  8  Sawv.  469;  Latta  v.  Kilbonrn, 
150  U.  S.  524,  37  L.  ed.  1169.  14  Sup. 
Ct.  Rep.  201  ;  Monroe  C.  Co.  v.  Beck- 
er, 147  U.  S.  47,  37  L.  ed.  72,  13  Sup. 
Ct.  Rep.  217;  Walcott  v.  Watson,  5^ 
Fed.  429. 

4  Post  §  1735,  et  seq. 


958 


frocediire]  EXCEPTIONS  TO   AXSWER.  S   1001 

upon  bill  and  ans\ver,5  or  of  its  use,  if  verified,  as  an  affida.vit  upon  in- 
cidental interlocutory  motions. 6  Where  plaintiff  waived  answer  under  oath 
it  was  settled  prior  to  the  amendment  of  the  43rd  rule,  that  interrogatories 
might  be  ignored,  and  such  is  still  the  lavv.T  If  a  bill  seeks  discovery 
plaintiff  should  therefore  never  waive  answer  under  oath.  While  plaintiff 
has  no  right  to  have  interrogatories  answered  if  he  waives  oath,  it  would 
seem  that  he  has  a  right  to  have  his  bill  otherwise  fully  answereds  ac- 
cording to  the  rules  of  equity  pleading, !'  unless  defendant's  answer  comes 
within  the  exception  to  the  rule  requiring  full  answer ;io  and  that  exception 
will  be  to  an  answer  where  oath  is  waived,  for  insufficiency.!  i  The  amend- 
ment of  1871  permitting  plaintiff'  to  destroy  the  evidential  value  of  the 
answer,  nowhere  states  that  the  settled  equity  rule  as  to  full  answer  ia 
to  be  disregarded  in  such  a  case,  and  the  analogy  drawn  from  the  rule  as 
to  answers  by  corporations  which  though  not  under  oath  were  always  re- 
quired to  be  full,i2  is  against  the  contention.  There  is  convenience  and 
advantage  in  the  rule  that  unverified  answer  should  still  be  full  and  specific 
though  in  such  a  case  not  evidence  but  a  pleading  merely.is  Exception  for 
impertinence  may  lie  although  answer  tmder  oath  is  waived.i*  Though 
unverified  answer  is  no  longer  evidence  for  defendant,  the  burden  still 
rests  upon  plaintiff"  to  prove  the  allegations  of  his  bill,i5  just  as  in  the 
case  of  general  issue  at  law.is 

§  1001.     Exceptions  to  answer — time  for  taking- — formal  requi- 
sites. 

After  an  answer  is  filed  on  any  rule  day,  the  plaintiff  shall  bo 
allowed  until  the  next  succeeding  rule  day  to  file  in  the  clerk's 
office  exceptions  thereto  for  insufficiency,  and  no  longer,  unless  a 
longer  time  shall  be  allowed  for  the  purpose,  upon  cause  shown  to 
the  court  or  a  judge  thereof;  and  if  no  exceptions  shall  be  filed 
thereto  within  that  period,  tlio  answer  shall  be  deemed  and  taken 
to  be  sufficient. 

61st  equity   rule,  promulgated    March    1S42. 

5 See  post.  S  1005.  9 Ante.  5;  9fl0[c]. 

sUnited    States    v.  Workingman's,         loAnte.  §  99(i[e]. 
etc.  Co.  54  Fed.  994.  26  L.R.A.   158.         nWhittomore    v.    Patten.   81    Fed. 

"Union  Bank  v.  G^earv.  5  Pet.  99,  527;     National,     etc.     Co.     v.    Inter- 

112.     8     L.     ed.     60:    Huntington    v.  changeable,  etc.  Co.  83  Fed.  26.    But 

Saunders,  120  U.  S.  80.  30  L.  ed.  580,  see  contra:  Tillinghast  v.  Chace,  121 

7    Sup.    Ct.    Rep.    357:    Excelsior   W.  Fed.  435. 
P.  Co.  V.  Seattle.  117  Fed.  140.  55  C.         i2Antc.  ?;  996[d]. 
C.  A.  156;    Tillinghast  v.  Chace.  121         isSee    Whittemore    v.    Patten.   81 

Fed.  435.  Fed.  527. 

sl'lilmann  v.  Brewing  Cn.  41   Fed.         ^Barrett   v.   Twin   C.   P.    Co.   Ill 

369:    Whittemore  v.  Patten.   81    Fed.  Fed.  46. 

527,   and   cases   cited:    National,   etc.        i^Stewart  v.  Allen,  47  Fed.  400. 
Co.    V.    Interchangeable,    etc.    Co.    83         isSee     Union     Bank     v.    Geary,    5 

Fed.    26.      Bvit    see   contra:      Tilling-  Pet.  99.  112.  8  L.  ed.  60. 
hast  V.  Chace.  121  Fed.  435. 

959 


s    JOOl    la  I  KliLlTV     ruOCEDUUE.  [Code   Fed. 

[a]     The  rule  of  1822. 

Rule  14  of  the  equity  rules  of  1S22  provided  that  "If  the  plaiiitift's  at- 
torney or  solicitor  shall  except  against  any  answer  as  insufficient,  he  may 
lile  his  exceptions,  and  leave  rule  with  the  clerk  to  make  a  better  answer 
within  two  calendar  months."  The  defendant  could  then  amend  or  stand 
upon  the  suthciency  of  his  answer  and  set  if  for  argument  at  the  next  term.i 

LbJ     Remedy  by  exception  distinguished  from  others. 

The  different  courses  open  to  a  plaintiff  after  answer  filed  have  already 
been  stated. 2  One  of  them  is  the  filing  of  exceptions  where  the  answer  is 
insufficient.  "Insufficient"  in  this  sense  means  not  complete,  or  full,  or 
specific,  or  otherwise  in  conformity  with  the  rules  as  to  full  answer  else- 
where stated.3  "Insufficient"  is  also  applied  to  the  legal  insufficiency  of  the 
entire  answer  as  a  defense,  and  of  such  defect  plaintiff  will  usually  take 
advantage  by  setting  the  cause  down  on  bill  and  answer  ;'4  and  should  not 
do  so  by  exception. 5  So  if  the  answer  is  formally  defective,  as  in  being 
improperly  entitled  the  remedy  is  motion  to  strike  out  and  not  exeeption.6 
Answer  filed  in  support  of  a  plea  is  not  subject  to  exception,  but  plaintiff 
should  either  reply  or  set  down  the  plea  for  argument,  v  The  exception  for 
insufficiency  only  raises  the  questions  where  a  sufficient  discovery  has  been 
made  whether  averments  have  been  fulh^  answered  and  whether  averments 
excepted  to  are  scandalous  or  impci'tinent.s  A  demiu'rer  to  an  answer  is 
improper.  9 

[c]     Matters  for  exception. 

An  exception  that  allegations  which  support  the  equity  of  the  bill  are 
neither  answered,  admitted,  or  denied,  is  good,  and  will  be  sustained. is 
A  denial  on  information  and  belief  of  any  of  the  facts  in  the  bill,  is  a  good 
ground  of  exception  where  defendants  knowledge  must  be  direct  and  person- 
al.14  It  seems  the  better  rule  that  exception  lies  for  insufficiency  although 
answer  under  oath  is  waived. li^  An  early  case  held  that  after  exception  for 
impertinence  had  been  taken  and  allowed,  exception  for  insufficiency  could 

iTWheat.  VI.  et  seq.  5  L  ed.  376.  sPennsvlvania  Co.  v.  Bav.  1.38  Fed. 

2 Ante.  §  996  [g].  204. 

sBarrett   v.    Twin    C.    P.    Co.    Ill  9 Ibid. 

Fed.  46;  see  ante.  §  096  [c].  isHardeman  v.  Harris.  7  How.  726, 

^United   States   v.  McLaughlin.  24  12  L.  ed.   889;    Read  v.  Consequa.  4 

Fed.  823:  see  post,  §    1005.  Wash.   C.  C.  335.  Fed.   Cas.  No.   11,- 

sException     seems     not    a    proper  607. 

mode  of  taking  issue  as  to  the  legal  i^Bradford  v.  Geiss.  4  Wash.  C.  C. 

sufficiency    of    the    answer    as    a    de-  513.  Fed.  Cas.  No.  1.768. 

fense:     In   re   Sandford   F.   &  T.   Co.  isUhlmann  v.  Brewing  Co.  41  Fed. 

160  U.  S.  257,  40  L.  ed.  417,  16  Sup.  369;   Whittemore  v.  Patten,  81   Fed. 

Ct.  Rep.  293:   Barrett  v.  Twin  C.  P.  527:   National,  etc.  Co.  v.  Inter,  etc. 

Co.    Ill    Fed.    46;    Stokes    v.    Farns-  Co.  S3  Fed.  26:  contra  Tillinghast  v. 

worth  99  Fed.  837:  Walker  v.  -Tack,  Chace,   121   Fed.   435;    and  see  ante, 

88  Fed.  576.  31  C.  C.  A.  462.  §  1000  note. 

eOsgood  V.  Aloe  Co.   69   Fed.  291 : 

7Hatch   V.   Bancroft.   67   Fed.   802; 
ante.   §  996   [g]. 

960 


I> 


Procedure]  SETTING    EXCEPTIONS    FOR    HEARING.  §   1002 

then  be  filed; is  but  the  present  rule  seems  to  require  all  exceptions  to  be 
filed  at  the  same  time. 1 7  Neither  this  rule  nor  the  earlier  one  specifically 
recognizes  exception  to  an  answer  for  impertinence,  although  the  cases  have 
permitted  exception  upon  that  ground  where  matter  was  clearly  not  mate- 
rial or  relevant. 18 

[d]     Form  and  disposal  of  exceptions,  waiver  and  admission  thereof. 

An  exception  for  insufficiency  should  state  the  charges  in  the  bill  and 
the  answer  thereto,  verbatim,  that  the  court  may  properly  judge  it.i  The 
exceptions  may  be  amended  by  adding  a  prayer  thereto.2  In  deciding  upon 
exceptions  the  answer  will  be  liberally  construed,  having  regard  to  the  case 
made  by  the  bill; 3  and  if  the  allegations  of  the  bill  are  general  the  an- 
swer may  be  equally  so.*  Going  to  trial  on  the  merits  is  waiver  of  an  ex- 
ception; and  if  plaintiff  does  not  except  for  failure  to  deny  allegations  in 
the  bill,  the  allegations  are  not  deemed  admitted  but  he  must  prove 
them. 5 

§  1002.  —  setting  exceptions  for  hearing  unless  answer  amended. 

Where  exceptions  shall  be  filed  to  the  answer  for  insufficiency, 
within  the  period  prescribed  by  these  rules,  if  the  defendant  shall 
not  submit  to  the  same  and  file  an  amended  answer  on  the  next 
succeeding  rule  day,  the  plaintiff  shall  forthwith  set  them  down 
for  a  hearing  on  the  next  succeeding  rule  day  thereafter  before  a 
judge  of  the  court,  and  shall  enter,  as  of  course,  in  the  order  book, 
-an  order  for  that  purpose ;  and  if  he  shall  not  so  set  down  the  same 
for  a  hearing,  the  exceptions  shall  be  deemed  abandoned,  and  the 
answer  shall  be  deemed  sufficient;  provided,  however,  that  the  court, 
■or  any  judge  thereof,  may,  for  good  cause  shown,  enlarge  the  time 
for  filing  exceptions,  or  for  answering  the  same,  in  his  discretion, 
upon  such  terms  as  he  may  deem  reasonable. 
G3rd  equity  rule,  promulgated  March,  1842. 

Rule  14  of  the  equity  rules  of  1822  permitted  defendant  within  two 
months  after  exception  to  put  in  an  amended  answer  without  costs;  or  if 
he  deemed  his  answer  suflicient  or  neglected  to  amend,  permitted  plaintiff 
to  set  down  the  exceptions  for  argument  at  the  ne.xt  term.     But  after  the 

isPatriotic    Bank    v.   Washington  i Brooks    v.    Byara,    1    Story,    296, 

Bank,  .5  Cranch   C.  C.  G02.  Fed.  Cas.  Fed.    Cas.    No.    \,M~;    Bower' Co.    v. 

No.  10.806.  Wells   Co.    43    Fed.    301 :    Schultz   v. 

I'But  see  Barrett  v.  Twin  C.  P.  Co.  Phoenix  Ins.  Co.  77  Fed.  37.5. 

Ill    Fed.  46.  2\A-liittemorc  v.  Patten.  84  Fed.  51. 

isBarrett   v.   Twin   C.   P.    Co.    Ill  sCriswold    v.    Hill,    1    Paine,    390, 

Fed.    46:    Chapman    v.    School    Dist.  Fed.  Ca.s.  No.  5.8.35. 

Deady.  108.  Fed.  Cas.   No.  2.607;   see  4Parsons   v.   Cummiiigs.    1    Woods, 

Patriotic  Bank  v.  Washington  Bank,  461.  Fed.  Cas.  No.  10,77.'>. 

:5   Cranch   C.   C.   602,   Fed.   Cas.   No.  sLovell  v.  Johnson,  82  Fed.  206. 
10,806. 

Fed.  Proc— 61.  961 


?   1003  EQI'lTY    rHOrEDURE.  [Code  Fed. 

expiration  of  tAVO  months  "on  any  second  insuHicient  answer  put  in,"  no 
furtlier  or  otlier  answer  was  allowable  except  on  payment  of  costs. 8  Ex- 
ceptions should  be  set  for  hearing  on  the  rule  day  before  the  judge.9  Refer- 
ence to  a  master  before  that  time  is  a  waiver  of  them;io  and  plaintiff  may 
withdraw  them  upon  leave  obtained,  and  reply  forthwith.!!  If  the  excep- 
tions are  disallowed  plaintiff  has  a  right  to  file  a  replication  and  it  would 
be  improper  to  order  dismissal  without  according  that  right. 12 

§  1003.  —  answer  on  allowance  of  exceptions  and  penalty  for 
failure. 
If.  at  the  hearing,  the  execptions  shall  he  allowed,  tlie  defendant 
shall  be  bound  to  put  in  a  full  and  complete  answer  thereto  on  the 
next  succeeding  rule  day ;  otherwise  the  plaintiff  shall,  as  of  course, 
be  entitled  to  take  the  bill,  so  far  as  the  matter  of  such  exceptions 
is  concerned,  as  confessed,  or,  at  his  election,  he  may  have  a  writ  of 
attachment  to  compel  the  defendant  to  make  a  better  answer  to  the 
matter  of  the  exceptions;  and  the  defendant,  when  he  is  in  custody 
upon  such  writ,  shall  not  be  discharged  therefrom  but  by  an  order 
of  the  court,  or  of  a  judge  thereof,  upon  his  putting  in  such  answer 
and  complying  with  such  other  terms  as  the  court  or  judge  may 
direct. 

64th  equity  rule,  promulgated  March  1842. 

If  answers  to  interrogatories  are  evasive  defendant  will  be  ordered  to 
make  full  disclosure  and  pay  the  costs  of  the  hearing. is  Under  Eule  16 
of  the  equity  rules  of  1822  a  second  insufficient  answer  entailed  a  penalty  of 
double  costs  it  being  further  provided  that  "defendant  may  be  examined 
upon  interrogatories,  and  committed  until  he  or  she  answer  them;  or  the 
plaintiff  may  more  the  court  to  take  so  much  of  his  bill  as  is  not  answered 
as  confessed  and  may  file  his  replication,  obtain  commissions,  and  proceed 
to  hearing  in  the  usual  manner."i6  It  is  improper  for  the  court  to  enter 
final  decree  against  defendant  upon  the  sustaining  of  exceptions,  unless 
defendant  elect  to  stand  upon  his  answer.i7 

§  1004.     Payment  of  costs  upon  exceptions  allowed  or  overruled. 

If,  upon  argument,  the  plaintiff's  exceptions  to  the  answer  shall 
be  overruled,  or  the  answer  shall  be  adjudged  insufficient,  the  pre- 

sRule  14.    see  7  ^Ylleat.  VI.  et  seq.    U.  S.  258.  40  L.  ed.  417.  16  Sup.  Ct. 

5  L.  ed.  .370.  Rep.  29.3. 

9La  Vega  v.  LajisJev.  1  Woods,  428,        i^Langdon  v.  Coddard,  a  Story,  13, 

Fed.  Cas.  No.  8.123.    "  ^'^^-  fa^  >^o-  8-061. 

„-,  .-  iGSee  /  Wheat.  X.  et  seq.  5  L.  ed. 

lOIbid.  o-,^ 

di  (). 

iiPenn    v.    Butler,    Wall.    C.    C.   4.         it[„   ^o  Sandford  F.  &  T.  Co.   lf!0 

Fed.  Cas.  No.  10.931.  u.  S.  2.58.  40  L.  ed.  417,  IG  Sup.  Ct. 

I2ln  re  Sandford  F.  &  T.  Co.  160    Rep.  293. 

962 


3 


Procedure]  SETTING    CAUSE    FOR    HEARING.  I    1005 

vailing  party  shall  be  entitled  to  all  the  costs  occasioned  thereby, 
unless  otherwise  directed  by  the  court,  or  the  judge  thereof,  at  the 
hearing  upon  the  exceptions- 
Goth  equity  rule,  pronnilgated  March  1S42. 

Rule  15  of  the  equity  rules  of  1822  provided  similarly  for  payment  by 
one  party  to  the  other  of  "such  costs  as  shall  be  allowed  by  the  court."i9 

§  1005.     Setting  cause  for  hearing  on  bill  and  answer. 

Plaintiff  may  set  a  cause  down  for  hearing  upon  l)i]l  and  answer. 
The  effect  is  to  admit  the  truth  of  all  matter  well  ])leaded  in  the 
answer,  but  to  deny  its  legal  sufficiency.  It  is  conseciuently  a  proper 
proceeding  where  plaintiff  believes  that  an  answer  in  tlie  nature  of 
a  confession  and  avoidance  is  no  defense,  or  that  the  answer  con- 
tains enough  admissions,  either  express  or  because  of  insufficient 
denials,  to  entitle  him  to  the  relief  prayed:  and  sometimes  it  is 
proper  where  the  answer  is  in  the  nature  of  a  plea  in  bar  under  Rule 
30. 

Author's  section. 

While  the  equity  rules  contain  no  express  provision  for  setting  a  cause 
downi  upon  bill  and  answer  the  right  to  follow  that  course  is  deducible  from 
rule  60.  It  is  a  well  recognized  and  proper  mode  of  preceeding  under  cer- 
tain circumstances. 2  At  a  hearing  upon  bill  and  answer  the  averments  oi 
the  answer  are  to  be  taken  as  true.3  Allegations  of  fact  in  the  bill  denied 
in  due  form  in  the  answer  are  to  be  taken  as  disproved,  and  material  aver- 
ments of  fact  in  the  answer  stand  admitted:''  whether  responsive  or  not.'' 
But  legal  conclusions  in  the  answer  or  allegation  at  variance  with  facts  of 
which  the  court  takes  judicial  notice,  are  not  admitted. 6  It  raises  the  same 
(juestion  as  would  a  demurrer  to  the  answer,  which  however  is  never  prop- 
er." Sometimes  when  denuirrer  is  improperly  interjwsed  the  court  will 
treat  it  as  an  application  to  set  down  for  hearing  on  bill  and  answer; 8  or 
strike  it  out  and  give  leave  so  to  set  the  cause  down.s     The  question  at 

197  Wheat.  X.  et  seq.  5  L.  ed.  376.  Sup.    ft.    Rep.   .36:    United    States  v. 

iPost.  S   1006:    see  Banks   v.  Man-  Flournov.  etc.  Co.  71  Fed.  .577. 
chesier.  128  V.  S.  2.51.  :?2  L.  ed.  428.         4T'nit'ed  States  v.  Trans-M.   F.  A-- 

9  Sup.  Ct.  Rep.  .36.  soc.  .58  Fed.  77.  7  C.  C.  A.  1.5.  24  L. 

-See    instances:     T.ake    F.    Ry.    v.  R.A.  7.3. 
Iniiianapolis  Nat.  Bink.  6.5  Fed."  600:         sLake    E.     R.     R.     v.    Indianapolis 

United    States   v.    Trans-Missouri    F.  Bank.  6.5  Fed.  600. 
Assoc.  58  Fed.  58.  77.24  L.R.A.  73.7         sT'nited    States    v.    Flournoy.    etr'. 

r.  r.  A.  15:  Banks  v.  Manchester.  128  Co.  71   Fed.  577. 
T'.  S.  244.  32  L.  ed.  425.  9  Sup.   Ct.         'See  ante.   S   n7nr'il- 
Rep.  36.  sOrether  v.  Wright.  75  Fed.  744,  2.3 

"l/>eds  V.  Marine  Ins.  Co.  2  Wheat.  C.  C.  A.  498. 
3H4.  4  L.  ed.  268:  Banks  v.  Manches-        ^Crouch  v.  Kerr,  38  Fed.  .550. 
tcr.   128  U.    S.   4.51.   32  L.   ed.   428.   P 

963 


§  1006  EQUITY   PROCEDURE.  [Code  Fed. 

such  a  hearing  is  the  legal  siifliciejicy  of  the  answer.io  But  if  it  appear 
that  the  bill  itself  is  fatally  defective  decree  may  be  for  dismissal  of  the 
bill;ii  although  sometimes  it  would  seem  plaintiff  should  be  allowed  to 
file  a  replication  if  the  decision  is  against  him. 12  If  the  answer  be  held 
legally  insufficient,  it  will  generally  be  in  order  to  direct  decree  for  plain- 
tifl'  forthwith;  13  although  there  might  be  circumstances  under  which  de- 
fendant should  be  permitted  to  amend.i*  Where  the  answer  sets  up  matter 
5n  the  nature  of  plea  in  bar  or  to  the  merits  under  rule  39,i5  it  was 
intimated  by  Mr.  Justice  Bradley  in  a  ease  at  circuit  that  although  the  bar 
■was  legally  insufficient,  plaintiff  could  not  prevail  at  a  hearing,  upon  bill 
■and  answer  "unless  the  answer  admitted  those  allegations  of  the  bill  on 
which  the  prayer  for  relief  was  founded."i6 

§  1006.     Amendment  of  answer  and  supplemental  answer. 

After  an  answer  is  put  in,  it  may  be  amended  as  of  course,  in 
.any  matter  of  form,  or  by  filling  up  a  blank  or  correcting  a  date,  or 
reference  to  a  document  or  other  small  matter,  and  be  resworn  at 
any  time  before  a  replication  is  put  in  or  the  cause  is  set  down  for 
.•a  hearing  upon  bill  and  answer.  But  after  replication,  or  sueli 
setting  down  for  a  hearing,  it  shall  not  be  amended  in  any  material 
matters,  as  by  adding  new  facts  or  defenses  or  qualifying  or 
altering  the  original  statements  except  by  special  leave  of  the 
court  or  of  a  judge  thereof,  upon  motion  and  cause  shown,  after 
due  notice  to  the  adverse  party,  supported,  if  required,  by  affi- 
davit; and  in  every  case  where  leave  is  so  granted,  the  court 
or  the  judge  granting  the  same  may  in  his  discretion  require  that 
the  same  be  separately  engrossed  and  added  as  a  distinct  amendment 
to  the  original  answer,  so  as  to  be  distinguishable  therefrom. '^^^"^''^ 
fiOth  equity  rule  promulgated  March  1842. 

lOBanks  v.  Manchester.  128  U.   S.  isSee  Lake  Erie  Ry.  v.  Indianapo- 

L'51.  32  L.  ed.  429,  9  Sup.  Ct.  Rep.  .36;  lis  Bank.  60  Fd.  690';   United  States 

Tinited   States   v.   Flournoy,    71    Fed.  v.  Flournoy.  etc.  Co.  71  Fed.  579. 

577.  14 Where  exceptions   are   sustained 

11  See      Bullinger    v.     Mackey,     14  to  an  answer  the  right  to  amend  is 

Blatchf.    355.    Fed.    Cas.    No.    2,126:  absolute:      In   re    Sandford,   etc.   Co. 

United  States  v.  Trans-M.  F.  Assoc.  160  U.  S.  258,  40  L.'ed.  417,  16  Sup. 

.58  Fed.  58,  7  C.  C.  A.  15.  24  L.R.A.  Ct.  Rep.  293:   ante,   §    1003;    rule  60 

73,  where  that  was  done.  (post.  §  1006)   deals  with  amendment 

12 See  In  re  Sandford   F.  &  T.  Co.  after  the  case  is  set  down  upon  bill 

160  U.  S.  258,  40  L.  ed.  417,  16  Sup.  and  answer,  but  not  after  decision. 

Ct.    Rep.    293.    where,    however,    the  1 5 Ante.  §  996. 

answer  was  questioned  on  a  general  isdaines  v.  Agnelly,  1  Woods,  238, 
exception  to  its  sufficiency  and  not  by  Fed.    Cas.    No.    5.173.    quoted    in    ex- 
setting  down.   In  Bullinger  v.  Mackev.  tenso    ante,  §  996  [e]. 
14  Blatchf.  355.  Fed.  Cas.   No.  2.126. 
leave  to  file  replication  was  refused. 

964 


rrorediiie]  AMENDMENT    OF    ANSWER.  §    1006   [bl 

[a]  Rules  as  to  amendment  in  general. 

The  rules  of  1822  contained  no  provision  respecting  amendment  of  an- 
swers. There  is  a  Federal  statute  respecting  amendments  and  directing  the 
courts  to  disregard  mere  formal  defects,  which  applies  in  equity  as  well 
as  at  law;  and  the  above  rule  must  be  read  in  connection  therewith. i* 
Amendment  of  the  answer  after  exception  filed  is  governed  by  rules  63 
and  64.2  0  After  replication  or  the  setting  of  the  case  for  hearing  on  bill 
and  answer,  permission  to  amend  the  answer  is  a  matter  within  the  sound 
discretion  of  the  court.i  That  discretion  should  be  exercised  with  a  view 
to  promoting  substantial  justice. 2  Mistakes  of  dates,  matters  of  form, 
and  verbal  inaccuracies  may  generally  be  corrected  at  any  time,3  or  the 
defect  may  be  disregarded  under  the  provisions  of  the  Federal  statute.* 
But  other  amendments  are  less  easily  obtained  as  a  cause  approaches  its 
final  disposition; 5  especially  where  want  of  diligence  is  evident. 6  Yet  the 
granting  of  leave  to  amend  after  a  hearing  on  exceptions  to  the  master's 
report,  is  a  matter  of  discretion,  not  reviewable  on  appeal."  Amendment 
changing  the  character  of  the  answer  will  rarely  be  admitted  after  hear- 
ing:«  or  an  amendment  for  the  purpose  of  introducing  matter  known  to 
defendant,  when  the  answer  was  filed ;»  or  an  amendment  contrary  to 
an  express  stipulation  of  the  counsel. lo  "Where  the  party  relies  upon  new 
facts  which  have  come  to  his  knowledge  since  the  answer  was  put  in, 
or  where  it  is  manifest  that  he  has  been  taken  by  surprise,  or  where  the 
mistake  or  omission  is  manifestly  a  mere  inadvertence  and  oversight, 
there  is  generally  less  n  ason  to  object  to  the  amendment  than  there 
is  where  the  whole  bearing  of  the  facts  and  evidence  must  have  been  well 
known  before  the  answer  was  put  in.n 

[b]  New  or  supplemental  answer. 

The  strict  distinctions  drawn  between  amended  and  supplemental  liills,i4 
do  not  seem  to  prevail  in  the  nomenclature  of  answers.  A  supph'niental 
answer  seons  to  have  been  first  used  by  Lord  Thurlow  in  lieu  of  the  older 
method  of  taking  the  original  answer  from  the  files  and  substituting  a  new 

19 Ante,  §  813.  sGubbons  v.  Laughtenschlager,   75 

20Ante.  §  1002.  1003.  Fed.  61.5;   Schultz  v.  Phenix  Ins.  Co. 

1  Smith    V.    Babcock.    3    Sum.    583,  75  Fed.  375. 

Fed.   Pas.   Xo.   13.008.   per  Story.  J.;  eindia  R.  Co.  v.  Phelps.  S  Blatchf. 

Caster  v.  Wood.  1  Bald.  289.  Fed.  Cas.  85.  Fed.  Cas.  Xo.  7.025. 

Xo.    2.505;    Ritchie   v.   McMullen,   79  ^Hudson  v.  Randolph.  60  Fed.  216. 

Fed.  522.  25  C.  C.  A.  50;   Hudson  v.  13  C.  C.  A.  402. 

Randolph,   66   Fed.   216,   13   C.  C.  A.  nValdon  v.    Bradley.    14    Pet.    loO, 

402.  10  L.  ed.  308;  see  Sm'ith  v.  Bahcock. 

2Callowav  v.  Dobson.  1  Brock.  119,  3  Sum.  583.  Fed.  Cas.  No.   13.008. 

Fed.   Cas.  Xo.   2,325;   Smith   v.   Bab-  sSee  Suvdam  v.  Truesdale.  6   Mc- 

cock.  3  Sum.  583,  Fed.  Cas.  No.  13,-  Lean.   459,"  Fed.   Cas.   No.    13.656. 

008,  per  Storv  J.  loSthultz   v.    Phenix    Ins.    Co.    75 

3 Smith    V.'  Babcock.    3    Sum.    583,  Fed.  375. 

Fed.  Cas.  Xo.  13.008:  Rhode  Island  V.  nSmith    v.    Babcock,        Sum.    583, 

MassachusPtts,  13  Pet.  23,  10  L.  ed.  Fed.  Cas.  Xo.  13.008,  per  Story,  J. 

41.  nAnte,  §  9G1. 

4Ante,  §  813. 

965 


il 


§    1007  EQUITY     PROCKDURE.  [Code   Fed. 

one,  a  practice  which  sometimes  resulted  in  flat  contradiction  between  the 
two  sworn  documents.  On  filing  supplemental  answer  the  original  still 
stands  subject  to  the  explanations  contained  in  the  supplement. ^  5  Where 
the  original  contained  a  mistake  which  is  sought  to  be  corrected,  it  is  im- 
portant that  the  supplement  contain  an  explanation  of  the  suppo.sed  mis- 
take,! 6  and  in  such  cases  supplemental  answer  is  preferable  to  an  amend- 
ment of  the  original,  at  least  where  answer  is  under  oath.  Supplemental 
answer  is  also  proper  where  new  matter  of  defense  is  discovered  after  the 
putting  in  of  the  original;!'  new  matter  thereafter  arises  or  which  de- 
fendant desires  to  have  brought  to  the  courts  attention,! «  such  as  a  re- 
lease.! s  However,  if  a  less  formal  mode  of  introducing  such  matters  is 
not  objected  to  at  the  time,  it  is  no  ground  of  objection  on  appeal. 20  The 
practice  of  destroying  the  evidential  character  of  the  answer  by  waiver  of 
verification.! 

§  1007.     New  or  supplemental  answer  after  amendment  of  bill. 

In  every  case  where  an  auienduieiit  shall  be  made  after  an.swer 
filed,  the  defendant  shall  put  in  a  new  or  supplemental  answer 
on  or  before  the  next  succeeding  rule  day  after  that  on  wliich  the 
amendment  or  amended  bill  is  tiled,  unless  the  time  is  enlarged  or 
otherwise  ordered  by  a  judge  of  the  court ;  and  upon  his  default,  the 
like  proceedings  may  be  had  as  in  cases  of  an  omission  to  put  in  an 
answer. 

46th  equity  rule,  promulgated  March  1S42. 

The  use  "amendment"  and  ''supplemental  answer"  has  already  been  re- 
ferred to. 5  An  amended  answer  to  an  amended  bill  which  repeats  matter 
in  the  original  answer  has  been  held  so  far  impertinent. 6 

§  1008.     Full  costs  not  allowed  if  separate  answer  by  solicitor 
for  sc-eral  defendants  unnecessary. 

When  the  same  solicitor  is  employed  for  two  or  more  defendants, 
and  separate  answers  sliall  l)e  filed,  or  other  proceedings  had  by 
two  or  more  of  the  defendants  separately,  costs  shall  not  be  allowed 
for  such  separate  answers  or  other  proceedings,  unless  a  master, 
upon  reference  to  him.  shall  CL'rtii'y  that  such  separate  answers  and 

isSee  story  K.].  PI.  nOl.  I'^^ce  Kelsey  v.  Hobby.  10  Pet.  277. 

isSmith    V.    Babcock.   3    Sum.    583.  ^^  ^-  ^^-  '■^"■*- 

Fed.  Cas.  No.   13.008.  20Kelsey  v.  Hobby.  16  Pet.  277.  10 

^      ,              ,^             ,  L.  ed.  !)(i4;  Coburn  v.  Cedar  V.  L.  Co. 

!'Suydam  v.   rruesdule,  6  McLean,  j.-^s  V    S    I'lC    ■>>>    .34  I     ed    876    11 

459.  Fed.   Cas.   Xo.   U.Or^O:   Caster  v.  Sup    Ct    Pen  "•'''jh"' 

W_(hk1.    1     Bald.     28!1.     Fed.    Cas.    Xo.  '     {^nt^^  ^  jooo. 

-■^"■*-  5 Ante,  §  imWHol. 

!8See  Williams  v.  Gibbes.  20  How.  sCier  v.  Gr^gg,  4  McLean,  202,  Fed, 
535,  54L  15  L.  ed.  1013.  Ca^.  \o.  5,406. 

966 


■ 


Procedure]  REPLICATION.  S   1010   [a] 

other  proceedings  were  necessary  or  proper,  and  ought  not  to  have 

been  joined  together. 

§  62nd  equity  rule  promulgated  March,  1842. 

The  rules  of  1822  contained  no  similar  provision. 

§  1009.     Limit  of  taxable  costs  or  answer. 

In  order  to  prevent  unnecessary  costs  and  expenses,  and  to  pro- 
mote brevity,  succinctness,  and  directness  in  the  allegations  of  . 
.  .  answers,  the  regular  taxable  costs  for  every  .  .  .  answer 
shall  in  no  case  exceed  the  sum  which  is  allowed  in  the  State  court 
of  chancery  in  the  district,  if  any  there  be;  but  if  there  be  none, 
then  it  shall  not  exceed  the  sum  of  three  dollars  for  every  .  .  . 
answer. 

25th  equity  rule  promulgated  March,  1842. 

The  rule  also  includes  taxable  costs  on  bills.io 

§  1010.     Replication — time  of  filing — issue. 

Whenever  the  answer  of  the  defendant  shall  not  be  excepted  to, 
or  shall  be  adjudged  or  deemed  sufficient,  the  plaintiff  shall  file 
the  general  replication  tliei-eto  on  or  before  the  next  succeeding  rule 
day  thereafter  •S^'^  and  in  all  cases  where  the  general  replieati(m  is 
filed  the  causes  shall  be  deemed  to  all  intents  and  purposes  at  issue, 
without  any  rejoinder  or  other  pleading  on  eitlier  side.  If  the 
plaintifF  shall  omit  or  refuse  to  file  such  replication  within  the  pre- 
scribed period,  the  defendant  shall  ])e  entitled  to  an  order,  as  of 
course,  for  a  dismissal  of  the  suit;  and  the  suit  shall  thereupon 
stand  dismissed. f'^'  unless  the  court,  or  a  judge  thereof,  shall,  upon 
motion,  for  cause  shown,  allow  a  replication  to  be  filcl  nunc  ])ro  tunc, 
the  plaintiff  submitting  to  speed  the  cause,  and  to  such  other  terms 
as  may  be  directed. ^^^ 

6Gth  equity  rule,  promulgated  March,  1842. 

[a]     Replication  in  general. 

Replication  to  a  pica  is  elsewhere  considerodis  special  replication  for 
the  purpose  of  int  inducing  new  matter  in  avoidance  of  a  substantive  de- 
fense in  the  answer  or  plea  was  allowable  under  the  rules  of  1S22.  thotigh 
only  upon  leave  first  obtained. n  But  the  rules  of  1842  abolished  tlie  spe- 
cial  replication:'"'   aTid   if   filed   it   may  now   be  stricken    out    on    motion. I'l 

lOAnte.  §  !)t)4.  Fed.  Cas.  Xo.  4.18.">:  Vattier  v.  Hinde, 

I3.\nte.  §  nSlfcT.  7  Pet.  2rv2,  S  L.  ed.  070. 

i4Rule    II.   7   Wheat.  VT.   5   L.  ed.         ir.Ante.   §  OoS. 

370;    See    earlv    cases   thereon:     Du-         isMason    v.    Hartford,    etc.    R.    R. 

ponti   V.    Mussy.  4  Wash.   C.  C.   128.    10  Fed.  .^.34. 

067 


§  1010   [b] 


EQUITY    PROCEDURE. 


[Code  Fed, 


Plaintiff  need  only  file  general  replication  and  the  cause  is  then  deemed 
"to  all  intents  and  purposes  at  issue,  without  any  rejoinder  or  other  plead- 
ing on  either  side."  However,  there  are  various  other  courses  open  to  a 
plaintiff  after  the  filing  of  the  answer.iT  Replication  puts  in  issue  all 
matters  well  alleged  in  the  answer,i8  not  responsive  to  the  bill.is  If  none 
be  filed  the  answer  must  be  deemed  true  and  plaintiffs  can  offer  no  evidence 
to  contradict  facts  well  alleged  in  the  answer.20  New  matter  in  a  repli- 
cation may  now  be  treated  as  surplusage.  1  Where  defendant  has  filed  a 
plea,  and  answer  in  its  support,  it  is  irregular  for  plaintiff  to  file  a  replica- 
tion only  to  the  supporting  answer;  his  course  is  either  to  reply  to  the 
plea  and  answers  or  else  set  the  cause  for  arguments  on  the  bill,  plea,  and 
supporting  answer.*  Replication  is  unnecessary  after  answer  to  bill  of 
revivor.5  If  parties  proceed  to  final  hearing  without  objection  for  want 
of  a  replication,  the  defect  is  waived  and  not  available  on  appeal. 6  The 
replication  cannot  be  used  to  perform  the  office  of  exceptions.'? 


I 


[b]     Time  for  filing. 

Construing  this  rule  in  connection  with  the  Glst,io  it  has  recently  been 
held  that  plaintiff  has  until  the  second  rule  day  after  answer,  in  which  to  file 
his  replication.il  If  not  seasonably  filed  motion  to  dismiss  should  be 
granted;  12  as  of  course.  1 3  But  if  a  belated  replication  is  filed  without 
leave  the  court  has  discretion  to  permit  it  to  stand;'*  and  it  is  said  that 
the  filing  of  replication  out  of  time  is  and  should  be  indulged. is  Each 
answer  as  filed  must  be  sea.sonably  replied  to  regardless  of  the  state  of  the 
cause  as  to  other  defendants. 1 6  Where  motion  to  strike  the  answer  from 
the  files  is  pending  the  suit  will  not  be  dismissed  for  want  of  replication.! 7 
The  filing  of  replication  has  been  permitted  at  the  final  hearing  where 
testimony   has   been    taken   without   any   objection   for   want   thereof. is 


17 See  ante,  §  9f>6[g]. 

isBrown  v.  Pierce.  7  Wall,  212.  19 
L.  ed.  134. 

isHumes  v.  Scruggs,  94  U.  S.  24, 
24  L.  ed.  51. 

20Brow-n  v.  Pierce,  7  Wall.  212,  19 
L.  ed   134. 

iWarren  v.  Van  Brunt,  19  Wall. 
646.  22  L.  ed.  219. 

2See  ante,  §  981  [c]. 

sSee  ante.  §  981  [a]. 

4See  Beals  v.  Illinois,  etc.  R.  R. 
133  U.  S.  290,  33  L.  ed.  608.  10  Sup. 
rt.  Rep.  314. 

5Fretz  v.  Stover.  22  Wall.  204.  22 
L.  ed.  769;  Mason  v.  Hartford,  etc. 
R.  R.  19  Yea.  56. 

6Brown  v.  Pierce,  7  Wall.  212.  19 
L.  ed.  134;  Fretz  v.  Stover,  22  Wall. 
204,  22  L.  ed.  769;  Clements  v. 
Moore,  6  Wall.  299,  18  L.  ed.  786. 


^Robinson  v.  American,  etc.  Co.  ]'^5 
Fed.  603.  68  Fed.  331. 
lOAnte.  §  1001. 
iiHendrickson  v.  Bradley.  85  Fed. 

508.  29  C.  C.  A.  303;  but  see  Hevraan 
V.  Uhlman,  34  Fed.  686. 

i2Blue,  etc.  Co.  v.  Flovd- Jones.  26 
Fed.  817. 

isRobinson  v.  Satterlee.  3  Sawv. 
1.34.  Fed.  Cas.  No.  11.967. 

i4Fischer  v.  Hayes.  6  Fed.  76.  19 
Blatchf.  26:  see  Coleman  v.  Martin. 
6   Blatchf.   291,   Fed.   Cas.   No.   2.9S;). 

isHendriokson  v.  Bradley,  85  Fed. 

509,  510,  29  C.  C.  A.  303. 
isColeman    v.    Martin,    6   Blatchf. 

2»1,  Fed.  Cas.  No.  2.986. 

iTAllis  V.  Stowell,  5  Fed.  203.  10 
Biss.  57;  Fischer  v.  Wilson,  16 
Blatchf.  220,  Fed.  Cas.  No.  4.812. 

is.Tones  v.  Brittan.  1  Woods,  667, 
Fed.  Cas.  No.  7,455;  In  re  Thomas, 
45  Fed.  787. 


968 


CHAPTER  28. 

EQUITY  PROCEDURE  (CONTINUED)— PARTIES. 


§  1019.  When  nonjoinder  of  necessary  or  proper  parties  unobjectionable- 

§  1020.  If  very  numerous  all  parties  need  not  be  joined. 

§  1021.  When  trustees  may  be  sued  without  joining  beneficiaries. 

§  1022.  When  heir  at  law  a  proper  or  unnecessary  party. 

§   1023.  Joint  and  several  obligors  iray  be  severally  sued. 

S   1024.  Guardians  and  prochein  amis. 

§  1025.  Objection  for  defect  of  parties — hearing  where  objection  taken  in- 

the  answer. 

§  1026.  Objection  for  defect  of  parties  at  the  hearing. 

§  1019.     When  nonjoinder  of  necessary  or  proper  parties  unob- 
jectionable. 

In  all  cases  where  it  shall  appear  to  the  court  that  persons,  who- 
might  otherwise  be  deemed  necessary  or  proper  parties  to  the  suit, 
cannot  be  made  parties  by  reason  of  their  being  out  of  the  jurisdic- 
tion of  the  court,  or  incapable  otherwise  of  being  made  parties,  or 
because  their  joinder  would  oust  the  jurisdiction  of  the  court  as  to 
the  parties  before  the  court,  the  court  may  in  their  discretion  pro- 
ceed in  the  cause  without  making  such  persons  parties  \^^^  and  in 
such  cases  the  decree  shall  be  without  prejudice  to  the  rights  of  the 
absent  pa.rties.^^^ 

47th  equity  rule,  promulgated  March,  1842. 

[a]     In  general. 

This  rule  is  to  be  read  in  connection  with  R.  S.  §  7371  which  expressly 
excuses  the  joinder  of  parties  who  are  ''neither  inhabitants  of  nor  found 
w-ithin  the  district  in  which  suit  is  brought  and  do  not  voluntarily  appear.'* 
In  so  far  as  covering  the  same  ground  as  R.  S.  §  737  the  equity  rule  is 
of  course  subordinate  thereto;  although  it  better  expresses  what  is  actuai- 
1}'  intended  by  R.  S.  §  737.2  The  47th  rule  deals  also  with  nonjoinder  of 
persons  within  the  jurisdiction  who  lack  the  requisite  diversity  of  citizcn- 
aliip.3     The  Federal   courts  classify  parties  according  to  rules  of  their  own 

lAnte,  §  817.  S.  611.  37  L.  ed.  r)77.  13  Sup.  Ct.  Rep. 

2See  Swan  L.  Co.  v.  Frank,  148  U.    6fll . 

^See  ante,  §  S17[b]. 


§   1019   [a] 


EQUITY    PROCEDURE 


[Code  Fe. 


as  proper  or  formal,  necessary  and  indispensable;  and  the  words  "neces- 
sary or  proper  parties"  in  the  above  rule  have  a  meaning  which  has  become 
well  settled  in  Federal  jurisprudence. <  It  is  the  policy  of  the  Federal 
courts  to  orotect  the  constitutional  righto  of  resort  to  a  Federal  tribunal 
in  controversies  between  citizens  of  different  States  whenever  there  is  a 
controversy,  however,  involved  in  other  disputes,  that  cau  be  separated 
and  there  settled.  They  will  therefore  dispense  with  necessary  parties  who 
.should  be  joined,  but  cannot  without  ousting  their  jurisdiction; 6  although 
they  act  in  such  cases  in  the  exercise  of  discretion. ^^  They  never  allow  a 
contention  that  a  merely  formal  party  should  be  joined  where  the  result 
would  be  a  divestiture  of  their  jurisdiction. 8  But  this  does  not  mean  that 
ordinarily  and  where  no  question  of  such  divestiture  is  involved,  the  Fed- 
eral courts  will  disregard  the  usual  right  to  join  formal  parties  or  the 
usual  rule  that  all  persons  materially  interested  in  the  subject  matter  of  a 
suit  should  be  made  parties  in  order  to  prevent  multiplicity  of  suits  and 
insure  a  final  decree. 9  On  the  contrary  it  is  recognized  that  necessary  par- 
ties must  be  joined, lo  in  all  cases  where  such  joinder  will  not  oust  their 
jurisdiction.  They  will  also  range  parties  to  a  dispute  as  plaintiffs  or  de- 
fendants, according  to  their  essential  relation  to  a  controversy  so  that  the 
alignment  will  show  diverse  citizenship.il 

But  that  is  as  far  as  they  can  go.     If  joinder  of  an  indispensable  party 
without   whom  no  decree  could  be  made,  would  oust  the  jurisdiction,  the 


4lbid. 

sAnte,  §  2[q]  et  seq. 

sHunter  v.  Robbins.  117  Fed.  920; 
^Yilliams  v.  Crabb,  117  Fed.  193.  54 
C.  C.  A.  213.  59  L.R.A.  425;  Mallow 
V.  Hinde,  12  Wheat.  197.  6  L.  ed.  599; 
Harrison  v.  Urann,  1  Story  64,  Fed. 
Cas.  No.  6.146;  Jov  v.  Wirtz.  1  Wash. 
C.  C.  517,  Fed.  Cas.  >(o.  7.5.54:  Drake 
V.  Goodrigde.  6  Blatchf.  151,  Fed.  Cas. 
Xo.  4,062:  Tug  River  Co.  v.  Brigel. 
S6  Fed.  818.  30  C.  C.  A.  415:  Union, 
etc.  Co.  v.  Dangberg,  81  Fed.  73: 
Siou.x  C.  R.  R.  v.  Trust  Co.  of  North 
America,  82  Fed.  124,  27  C.  C.  A.  73; 
Insurance  Co.  v.  Svendsen,  74  Fed. 
346:  Elmendorf  V.  Tavlor,  10  Wheat. 
152,  6  L.  ed.  292;  Cameron  v.  Mc- 
Roberts,  3  Wheat.  591,  4  L.  ed.  467; 
Pavne  v.  Hook.  7  Wall.  425.  19  L.  ed. 
260:  McGahan  v.  Bank  156  U.  S.  236, 
39  L.  ed.  403,  15  Sup.  Ct.  Rep.  347. 

''California  v.  Southern  P.  Co.  157 
I^  S.  229,  39  L.  ed.  683,  15  Sup.  Ct. 
Rep.  591  ;  Mechanics'  Bank  v.  Seton, 
]  Pet.  306.  7  L.  ed.  152;  Elmendorf  v. 
Taylor.  10  Wheat.  152,  6  L.  ed.  292. 

sWormley  v.  Wormley,  8  Wheat. 
421,  5  L.  ed.  651  ;  Carneal  v.  Banks. 
10  Wheat.  181,  6  L.  ed.  297 ;  Ward  v. 


Arredondo,  1  Paine,  410,  Fed.  Cas. 
No.  17,148:  Anthonv  v.  Campbell,  112 
Fed.  212.  50  C.  C.  A.  195;  Cleveland 
T.  Co.  V.  Stone,  105  Fed.  794 ;  Mackay 
V.  Gabel.  117  Fed.  873:  Fisher  v. 
Shropshire,  147  U.  S.  133,  37  L.  ed. 
109.  13  Sup.  Ct.  Rep.  201. 

fllNIechanics'  Bank  v.  Seton,  1  Pet. 
306.  7  L.  ed.  1.52;  Ribon  v.  Railroad, 
16  Wall.  450.  21  L.  ed.  369;  Caldwell 
V.  Taggart.  4  Pet.  202,  7  L.  ed.  828. 

10 Caldwell  V.  Taggart,  4  Pet.  190,  7 
L.  ed.  828;  Morgan  v.  Morgan,  2 
Wheat.  298.  4  L.  ed.  245;  Williams 
V.  Bankhead,  19  Wall.  563.  22  L.  ed. 
184:  Mandeville  v.  Riggs,  2  Pet.  487, 
7  L.  ed.  493;  Van  Reinisavk  v.  Kane, 

1  Call.  371.  Fed.  Cas.  No.  16.871; 
West  v.  Randall,  2  Ma.ss.  181,  Fed. 
Cas.  No.  17.424;  Bowman  v.  Watlien, 

2  McLean.  379,  Fed.  Cas.  No.  1,740. 

iiSee  ante.  §  2[q]  ;Bunce  v.  (Jalla- 
gher,  5  Blatchf.  481,  Fed.  Cas.  No. 
2,133;  Parsons  v.  Lyman.  4  Blatchf. 
432,  Fed.  Cas.  No.  10,779:  Brown  v. 
Pac.  M.  S.  S.  Co.  5  Blatchf.  526, 
Fed.  Cas.  No.  2.  025;  Campbell  v. 
•Tames,  2  Fed.  338,  18  Blatchf.  92; 
Lalance  v.  Haberman  M.  Co.  93  Fed. 
197. 


970 


a 


Procedure]  NUMEROUS  PARTIES  NEED  NOT  BE   JOINED.  §    1020 

cause  must  be  dismissed  or  remanded  to  the  State  court  whence  it  came.i- 
Where  a  defect  of  parties  might  be  cured  by  amendment  it  will  not  be  prop- 
er to  order  dismissal  without  giving  opportunity  for  the  absent  party  to  bi' 
brought  in.  13  The  court  should  grant  leave  to  n  ake  new  parties  ;H  unles-^ 
it  is  apparent  that  the  new  party  would  oust  the  jurisdiction.! »  The  dis 
missal   when   made  should  be  without  prejudice.is 

[b]     Persons  not  parties  not  to  be  aftected  by  decree. 

This  proposition  was  well  settled  prior  to  the  adoption  of  the  above  rule 
or  of  the  act  of  1839  which  is  now  R.  S.  §  737.19  It  rests  upon  the  funda- 
mental principle  that  no  persons  rights  shall  be  adjudicated  unless  actually 
or  constructively  before  the  court. 20  The  rights  of  absent  parties  are  to 
be  reserved.! 

§  1020.     If  very  numerous  all  parties  need  not  be  joined. 

Where  the  partie.s  on  either  side  are  very  numerous,  and  cannot, 
witlioiit  manifest  inconvenience  and  oppressive  delays  in  the  suit, 
he  all  brought  before  it,  the  court  in  its  discretion  may  dispense 
with  making  all  of  them  parties,  and  may  proceed  in  the  suit,  hav- 
ing sufficient  parties  before  it  to  represent  all  the  adverse  interests 
of  the  plaintiffs  and  the  defendants  in  the  suit  properly  before  it.^^' 
But,  in  such  cases,  the  decree  shall  be  without  prejudice  to  the  rights 
and  claims  of  all  the  absent  parties. i^^^ 

48th  equity  rule,  promulgated  March,  1S42. 

i2T?iddlp  V.  Mandeville.  5   Cranch.  i4Hunt  v.  Wickliffe.  2  Pet.  201.  7 

322.  3  L.  ed.  114;  Ru:^sell  v.  Clark.  7  L.    ed.    3»7 :    Dandridge   v.   Washing- 

Cranch.  04.  3  L.  ed.  271:  Marshal  v.  ton's   Ex.   2   Pet.   370.   7   L.   ed.    4.54; 

Beverly.    .5     Wheat.     313,    5    L.    ed.  Bank    v.    Carrollton    R.    R.    11    Wall. 

fl7;    Connecticut    v.    Penn^vlvania.    o  024,  20  L.  ed.  82;   see  Hoe  v.  Wilson, 

Whrat.  424.  5  L.  ed.  125;  Harding  v.  !>  Wall.  .504,  10  L.  ed.  762:  see  Taylor 

ITandv,  11   Wheat.    132,   133.  6  L.  ed.  v.  Holmes,  14  Fed.  515;  Collins  Mfg. 

420:  Mellow  V.  Hinde,  12  Wheat.  108,  Co.   v.    Ferguson,   54   Fed.   722;    Con- 

{;  L.  ed.  .590:  Barney  v.  Baltinmre.  6  solidated  W.  Co.  v.  Babcock.  70  Fed. 

Wall.  2S0.  18  L.  ed.  825:  Herndon  v.  2.52:  Shields  v.  Barrow.  17  How.  145, 

Ridgway.    17    How.    425.    15    L.    ed.  15L.  ed.  158. 

100:       Bank    v.    Carrollton   R.  R.   11  i^See  Minnesota   v.   Northern   Sec. 

Wall.     024.     20    L.    ed.    82:    Traders'  Co.   184  T'.   S.   235.  40  L.  ed.  499,  22 

Bank  v.  Campbell.  14  Wall.  87,  20  L.  Sup.  Ct.  Rep.  308. 

e.l.  832:   Ribon  v.  Rnilroad.  10  Wall.  i«Dandridgp  v.  Was/hington.  2  Pet. 

440,  21   L.  ed.  307;  Young  v.  Cushing,  378.  7  L.  ed.  4.54. 

4    Biss.    450.    Fed.    Cas.Xo.    18.150:  i«See    ante.    §    817[d]:     Finley    v. 

First  Nat.  Bank  V.  Smith.  6  Fed.  215;  Bank  of   U.   S.    11    Wheat.   :!04.   0   L. 

Collins  Mfg.  Co.  V.  Ferguson.  54  Fed.  ed.    480;    Coiron     v.     Millaudon,     19 

721;    Shingleur  v.   .Jenkins.   Ill    Fed.  How.   113.  15  L.  ed.  575. 


4.)J. 


20 Ante,  ?   81710]. 
i:iMilligaii    v.    Milledge.   3   Cranch.         iCalhoun   v.  St.   Louis,  etc.  Co.   14 
228.     2  L.   ed.   417.    420;      Hoxie    v.    Fed.  9,  9  Biss.  330. 
Carr,  1  Sumn.  173.  Cas.  No.  6.802. 

971 


§  lo;io[a] 


EQUITY    PROCEDURE. 


[Code  l-ed.- 


[aj     In  general. 

In  an  early  case  at  circuit  the  learned  Story  thus  stated  the  rnlo: 
"Where  the  parties  are  very  numerous  and  the  court  perceives  that  it 
will  be  almost  impossible  to  bring  them  all  before  the  court;  or  where  the 
(juestion  is  of  general  interest,  anil  a  few  may  sue  for  the  benefit  of  the 
■whole;  or  where  the  parties  form  a  part  of  a  voluntary  association  lor 
public  or  private  purposes,  and  may  be  fairly  supposed  to  represent  the 
rights  and  interests  of  the  whole;  in  these  and  analogous  cases  if  the 
bill  pui-ports  to  be  not  merely  on  behalf  of  the  plaintiffs,  but  of  all  others 
interested,  the  plea  of  the  want  of  parties  will  be  repelled,  and  the  court 
will  proceed  to  a  decree."^  He  referred  to  it  also  in  an  early  supreme  court 
decision. 6  It  is  an  exception  to  the  rule  that  all  indispensable  parties  must 
be  joined."  It  is  applicable  where  the  parties  on  botli  sides  are  numerous,, 
as,  in  case  of  dispute  between  two  factions  of  a  church  body. 8  There  must 
be  some  interest  common  to  a  numerous  class ;»  and  each  .such  common 
interests  if  there  be  more  than  one,  must  be  represented.! "  There  must 
be  such  a  rejjrescntation  as  to  insure  a  fair  trial  in  behalf  of  all.n  And  the 
court  will  permit  other  parties  to  come  in  while  the  cause  is  in  fieri  and 
take  the  benefit  of  the  decree,  or  show  it  to  be  erroneous,  and  award  a  re- 
hearing; or  will  entertain  a  bill  or  petition  to  bring  the  rights  of  nonpar- 
ties more  distinctly  before  the  court  if  there  be  uncertainty  or  danger  of  in- 
jury or  injustice.i2  Under  this  rule  certain  stockholders  may  be  permitted 
to  sue  for  a  very  nimierous  class  similarly  interested; is  and  a  few  bond- 
holders may  sue  for  all;!'*  or  certain  creditors  may  maintain  creditor's  bill 
oil  behalf  of  all.i5     Strike  leaders  may  be  sued  in  order  to  reach  a  body  of 


r.West  V.  Randall,  2  Mason.  181, 
Fed.  Cas.  No.  17,424. 

sMandeville  v.  Riggs,  2  Pet.  487, 
7  L.  494 :  see  later  cases ;  Brown  v. 
Pacific  M.  S.  S.  Co.  5  Blatchf.  525 
Fed.  (^as.  Xo.  2.025;  Campbell  v. 
Railroad,  1  Woods,  368,  Fed.  Cas. 
No.  2,3()0,  per  Bradlej%  J. ;  Wilmer 
V.  Atlanta,  etc.  R.  R."  2  Woods,  447 
Fed.  Cns.  No.  17,776;  Mcintosh  v. 
Pittsburg.  112  Fed.  707:  Wood  v. 
Dinnnier,  3  Mason,  317,  Fed.  Cas. 
No.  17,044,  per  Story,  J.;  Stevens  v. 
Smith.   1^6  Fed.  71l'. 

'Ante.  §  8]7[b]-[c};  see  Mcintosh 
V.  Pittsburg.  112  Fed.  707;  West  v. 
Randall,  2  ]\Iason,  181,  Fed.  Cas.  No. 
17.424. 

sSniith  v.  Swormstedt.  16  Hoav. 
302,  14  L.  ed.  fl42 ;  see  Society  of 
Shakers  v.  Watson,  68  Fed.  730,  15 
C.  C.  A.  632.  641 ;  see  Wood  v.  Dum- 
mer.  3  Mason,  308.  Fed.  Cas.  Ao. 
17,944.  Where  some  creditors  sued 
some  stockholders. 

9 Scott   v.   Donald.    165   U.    S.    116. 


41   L.  ed.  648.   17  Sup.  Ct.  Rep.  262. 

lOSmitHi  V.  Swormstedt,  16  How. 
302.  14  L.  ed.  942. 

iiMcArthur  v.  Scott,  113  U.  S.  392,. 
28  L.  ed.  1015.  5  Sup.  Ct.  Rep.  652: 
Christian  v.  Atlantic,  etc.  R.  R.  133 
U.  S.  241,  33  L.  ed.  589,  10  Sup.  Ct. 
Rep.  260;  Stevens  v.  Smith,  126  Fed. 
711. 

12 West  V.  Randall,  2  Mason.  181,. 
Fed.  Cas.  No.  17.424:  Campbell  v. 
Railroad,  1  Woods.  368,  Fed.  Cas. 
No.  2,366;  Coann  v.  Atlanta,  etc.  Co. 
14  Fed.  4:  4  Woods.  503;  Alger  v. 
Anderson,  78  Fed.  733. 

13 Brown  v.  Pacific  M.  S.  S.  Co.. 
5  Blatchf.  525.  Fed.  Cas.  No.  2.025. 

14  Campbell  v.  Railroad  Co.  1 
Woods,  368.  Fed.  Cas.  No.  2,366; 
Coann  v.  Atlanta,  etc.  R.  R.  14  Fed. 
4,  4  Woods.  503:  Wilmer  v.  Atlanta, 
etc.  R.  R.  2  Woods,  447,  Fed.  Cas. 
No.   17.776. 

i5West  V.  Randall,  2  Mason.  ISl,. 
Fed.  Cas.  No.  17,424. 


972 


Procedure]  WHEN     TRUSTEES    MAY     BE     SUED.  §   1021 

.sti'ikers.16  There  are  also  cases  where  a  very  numerous  body  of  lieirs  may 
l)e  sued  by  joining  a  few  representatives.!"  A  suit  against  an  vuiincorpo- 
rated  association  of  dealers  which  names  the  association  together  with 
a  large  number  of  its  individual  members  and  it  officers,  is  sufficient. is 
Wliere  some  persons  who  should  be  named  defendants  are  unknown  to 
plaintiff,  as  in  the  case  of  unknown  heirs,  it  has  been  deemed  permissi- 
ble under  this  rule  to  join  those  known  and  allege  want  of  knowledge  as 
to  others. 19 

[b]  Decree  where  a  few  sue  or  defend  for  all  not  binding  on  non  parties. 
The  concluding  portion  of  the  above  seems  to  modify  the  general  doctrine 
that  parties  not  named  may  yet  be  bound,  on  the  principle  of  representa- 
tion, to  the  fullest  extent, 2  although  the  cases  have  sometimes  declared  that 
a  suit  by  or  against  some  in  behalf  of  all,  will  be  binding  upon  all,  not- 
withstanding this  rule. 3  This  provision  against  prejudicing  the  rights  of 
non  parties  in  the  decree  where  a  suit  is  by  or  against  some  in  behalf  of 
all,  certainlj'  does  not  prohibit  the  whole  class,  when  plaintiffs,  from  tak- 
ing the  benefit  of  a  decree  obtained  by  some  for  all;  nor  prevent  a  plain- 
tiff, obtaining  decree  against  some  representatives  of  a  numerous  class 
of  defendants,  from  bringing  in  others  than  the  individuals  named  by 
supplemental  proceedings,  and  making  his  decree  effective  against  them 
after  they  have  had  oppotrunity  to  defend  against  it. 4  It  permits  others 
of  the  class  to  come  in  while  the  cause  is  still  in  fieri  and  object  to  pro- 
ceedings taken  and  relief  sought  by  parties  claiming  to  represent  the 
classs  although  those  coming  in  and  seeking  the  benefits  of  a  decree  are 
imdoubtedly  bound  by  such  decree.^  It  seems  clear  that  this  rule  was  not 
intended  to  impair  the  binding  force  of  a  decree  upon  quasi  parties  such 
as  cestui  que  trust   who  are  duly  represented  in  court  by  their  trustee.? 

§  1021.     When  trustees  may  be   sued  without  joining  benefic- 
iaries. 

In  all  suits  concerning  real  estate  which  is  vested  in  trustees  by 
devise,  and  snch  trustees  are  competent  to  sell  and  give  discharges 
for  the  proceeds  of  the  sale,  and  for  the  rents  and  profits  of  the 
estate,  such  trustees  shall  represent  the  persons  beneficially  inter- 
ested in  the  estate  or  the  proceeds,  or  the  rents  and  profits,  in  the 

isAmerican.  etc.  Wire  Co.  v.  Wire.  Woods,  .^OS.  Fed.  Cas.  Xo.  2..366:  Mc- 

etc.  Union,  90  Fed.  OOii,  fiOT.  Tntosli  v.  Pittsburg.  112  Fed.  707. 

i^See   Stevens  v.   Smith,   126   Fed.        ■JAmerican.  etc.   Wire  Co.  v.  Wire 

■711.  Drawers'   Union.   90   Fed.   605. 

isUnited    States    v.    Coal    Dealers'        sCoann   v.   Atlanta   C.  Co.    14  Fed. 

Assn.     8.5     Fed.     2.52.    260:    compare  4,  4  Woods,  ii0.3. 

American,  etc.  W.   Co.   v.   Wire.   etc.         6Campl)eil    v.    Railroiul.    1    Woods, 

I'nion.  no  Fed.  606.  .368,   Fel.  Cas.  Xo.  2..Si;i! :   Calhoun  v. 

1  "Alger  v.   Anderson,  78   Fed.   744.  St.  Louis  Ry.  14  Fed.  10.  !)  Biss.  .330. 

2American.  etc.  Wire   Co.  v.  Wire         TSee  Kerrison  v.  Stewart.  !13  U.  S. 

Drawers"  Union.  90  Fed.  60.5.  15.").  23  U.  cd.  843. 

sSee      Cani[)l)ell      v.      TJailro.ul,      1 

973 


S   1021  EQUITY    rUOCEDURE.  (Code   Fed. 

same  jnanncr  and  to  the  same  extent  as  the  executors  or  adminis- 
trators in  suits  concerning  personal  estate  represent  the  persons 
beneficially  interested  in  such  personal  estate;  and  in  such  cases 
it  shall  not  be  necessary  to  make  the  persons  beneficially  interested 
in  such  real  estates,  or  rents  and  profits,  parties  to  the  suit ;  but  the 
court  may,  upon  consideration  of  the  matter  on  the  hearill,L^^  if  it 
shall  so  think  fit,  order  such  persons  to  be  made  paities. 
4!)th  equity  rule,  promulgated  March,  1842. 

There  seems  to  be  but  few  direct  references  to  the  foregoing  provision, 
among  the  reported  cases.  In  one  case  it  was  referred  to  for  an  analogy  re- 
specting cases  where  an  executor  may  be  sued  without  joining  the  devisees. « 
The  general  rule  is  that  in  suits  res])ecting  the  trust  property,  brought 
either  by  or  against  the  trustee,  the  cestui  que  trust  as  well  as  the  trustee, 
are  necessary  parties ;»  and  that  the  trustees  as  well  as  beneficiaries  are 
necessary  ])arties  to  a  suit  to  defeat  the  trust,  especially  where  they  have 
large  powers  respecting  the  trust  estate. lo  To  this  general  rule  there  are 
well-established  exceptions,  one  of  which  is  expressed  by  the  49th  rule 
supra.  The  cases  have  further  held  that  if  suit  is  brought  by  trustee  to 
recover  the  trust  property  or  to  reduce  it  to  possession  and  in  nowise  af- 
fects his  relation  with  his  cestui  que  trust,  It  is  unnecessary  to  make  the 
latter  parties.n  Nor  are  the  beneficiaries  necessary  parties  to  a  sait  by 
a  stranger  against  the  trustee,  to  defeat  the  trust,  or  by  the  trustee 
against  strangers  to  enforce  it. 12  This  is  true  where  the  trustee  has  such 
powers  or  is  under  such  obligations  in  the  execution  of  the  trust,  that 
the  beneficiaries  will  be  bound  by  what  is  done  by  and  against  him;i3 
but  is  subject  to  exception  where  the  trustee  holds  a  mere  naked  legal 
title  for  the  benefit  of  himself  and  another.^*  Bondhoklers  are  not  nec- 
essary parties  in  a  suit  by  or  against  the  trustee  and  yet  will  be  bound  by 
the  judgment  rendered. is      Creditors  are  bound   by  judgments  again.st  an 

>^See   Chew    v.   Hyman.   7    Fed.    14.  plaintiffs :   Kiiapp  v.  Railroad  00.  20 

10  Biss.  240.  holding  devisees  neces-  Wall.   123.  22  L.  ed.  328. 

sary    parties   in    foreclosing  a    mort-  i2Kerrison    v.    Stewart,    93    U.    S. 

gage  given   bv  the  testator.  160.    23    L.    ed.    843:    Talley   v.    Cur- 

sCarev  v.  Brown,  92  U.   S.  171,  23  tain.  .54  Fed.  48.  4  C.  C.  A*  177. 

L.   ed.    409:    Ross   v   .Ft.    Wavne,    63  i3Kerrison    v.    Stewart,    93   U.    S. 

Fed.  469,    11    C.   C.  A.    288:   Wescott  IfiO.    23    L.    ed.     843;     Vetterlein    v. 

V.    Wayne.    11    Fed.    303;    Smith    v.  Barnes.  124  U.  8.  172.  31  L.  ed.  401, 

Portland.   30    Fed.    737;    Griswold   v.  8    Sup.    Ct.     Rep.    441;     Richter      v. 

Bacheller.  75  Fed.  473.  Jerome.  123  V.  S.  246,  31  L.  ed.  137, 

lOO'Harra  v.   McConnell,  93   U.   S.  8  Sup.  Ct.  Rep.  112;  Rejall  v.  fireen- 

154.  23  L.  ed.  840:  McArthur  v.  Scott,  hood.  92  Fed.  945.   .35  C.  C.  A.  97. 

113  U.  S.  396.  28  L.  ed.  1015.  5  Sup.  i4See  Rand   v.    Walker.   117   U.   S. 

Ct.    Rep.    652;    Kerrison    v.    Stewart,  344.   29   L.   ed.   907.   6   Sui>.   Ct.   R-n. 

93  U.   S.    HiO,  23   L.  ed.   843;   Wood-  770:    Steinkulil  v.   York.  2  Flip.  .S«0. 

ward     v.     McConnaughc/,     106     Fed.  Fed.  Cas.  No.  13.356;  ChaflSn  v.  Hull, 

760,  45  C.  C.  A.  602.  49   Fed.   526. 

uCarev  v.  Brown,  92  U.  S.  171,  23  isRichter  v.  .Jerome.  123  U.  S.  246, 

L.    ed.    4'69:    Wescott   v.    Wayne,    11  31    L.   ed.   137,   8  Sup.   Ct.  Rep.   112; 

Fed.  303.     The  trustees  are  the  real  Reals  v.  Illinois,  etc.  R.  R.  133  U.  S. 

974 


I 


Procedure]  GUAHDIAXS    AND    PROCHEINS    AMIS.  §   1024 

assignee   for   their   benefit. is     An   assignee   of   a   patent   may   sue   for   in- 
fringement without  joining  the  assignor.iT 

The  court  may  in  its  discretion,  order  beneficiaries  to  be  made  parties;is 
and  in  suit  against  their  trustee,  they  may  be  admitted  as  parties  without 
amendment  of  tlie  complaint. 19 

§  1022.     When  heir  at  law  a  proper  or  unnecessary  party. 

In  suits  to  exec-ute  the  trusts  of  a  will,  it  shall  not  be  necessary 
to  make  the  heir-at-law  a  party;  but  the  plaintiff  shall  be  at  liberty 
to  make  the  heir-at-law  a  party  where  he  desires  to  have  the  will  es- 
tablished against  him. 

50th  equity  rule,  promulgated  March,  1842. 

§  1023.     Joint  and  several  obligors  may  be  severally  sued. 

In  all  eases  in  which  the  plaintiff  has  a  joint  and  several  demand 
against  several  persons,  either  as  principals  or  sureties,  it  shall 
not  be  necessary  to  bring  before  the  court  as  parties  to  a  suit  con- 
cerning such  denumd  all  the  persons  liable  thereto;  but  the  plaintiff 
may  proceed  against  one  or  more  of  the  persons  severally  liable. 
.51st  equity  rule  promulgated  March,   1842. 

If  an  obligation  or  liability  is  both  joint  and  several,  plaintiff  has  his 
o])tion  to  save  individually  or  jointly. 3  An  individual  defendant  has  no 
right  to  say  that  plaintifi'  must  sue  severally  if  he  has  elected  to  sue 
jointly. 4  But  if  plaintiff'  has  once  had  judgment  either  joint  or  several 
that  ends  his  right  of  election. 5  If  a  liability  is  only  joint  and  not  also 
several,  all  living  joint  obligees  must  be  joined. 6 

§  1024.     Guardians  and  prochein  amis. 

(iuardians  ad  litem  to  defend  a  suit  may  be  appointed  by  the 

29.5.  .'^3  L.  ed.  till.   10  Sup.  Ct.  Rep.         if'Edrington  v.  .Jefferson.  Ill  U.  S. 

31(i:    Kent    v.    Lake.  etc.   Co.    144   U.  774,   28   L.   cd.   504.   4   Sup.   Ct.   Rep. 

S.  no.  :m  L.  ed.  35a.  12  Sup.  ct.  Rep.  683. 

fi.55;   Credit  Co.  v.  Arkansas  R.  R.  15         ^Pirie    v.    Tvedt,    115    V.    S.    43.   20 

Fed.  52,  5  McCrarv  23;   Farmers'  L.  L.  ed.  331.  5  Sup.  ft.  Rep.  1034.  1101  : 

&    T.    Co.    v.    Kansas   R.    R.    53    Fed.  The  Beaconsfield.   1,58  U.     S.  307.  30 

1SI5:    Clvde   v.   Richmond,  etc.   R.  R.  L.    ed.    993,    15    Sup.    Ct.    Rep.    800; 

55  Fed.  448:  Woods  v.  Woodson,  100  Sessions  v.  .Tohnson.  95  U.  S.  347.  24 

Fed.  519,  40  C.  C.  A.  .525.  L.  ed.  596. 

i«Rejall  V.  Creenhood.  92  Fed.  947,         ^Louisville,   etc.   R.   R.   v.  Ide.   114 

.35  C.  C.  A.  97:  Vetterlein  v.  Barnes.  U.  S.  56.  29  L.  ed.  63.  5  Sup.  Ct.  Rop. 

124  r.  R.  172,' 31   L.  ed.  401.  8  Sup.  735. 
Ct.  Rep.  442.  sSessions  v.  Johnson.  95  I"  S.  347. 

i-rni(ni   T.   Co.   v.  Walker  E.   Co.  24  L.  ed  596. 
122  Fed.  815.  eFarni   v  Tesson,  1  Black,  315,   17 

isKerrison    v.    Stewart.    93    U.    S.  L.  ed.  C7. 
160.    23    L.    ed.    843;     Toler   v.    East 
Tennessee  Rv.  67   Fed.   171. 

975 


f  1024    [a]  EQUITY   PROCEDURE.  [Code  Fed. 

court,  or  b}'  any  judge  thereof,  for  infants  or  other  persons  who  are 
under  guardianship,  or  otherwise  incapable  to  sue  for  themselvesJ''^ 
All  infants  and  other  persons  so  incapable  may  sue  by  their  guar- 
dians, if  any,  or  by  their  prochein  ami;  subject,  however,  to  such 
orders  as  the  court  may  direct  for  the  protection  of  infants  and 
other  persons. f^^  ^'^^ 

87th  equity  rule  promulgated  March  1842. 

[a]  The  rule  in  general. 

In  the  ecjuity  rules  of  1822  the  only  provision  respecting  parties,  is  con- 
tained in  rule  27  and  concerned  with  guardians  ad  litem.  It  provides 
that:  "Orders  for  the  admission  of  a  guardian  ad  litem,  to  defend  a  suit, 
may  be  made  either  by  the  court  or  one  of  the  judges  thereof." 9  "In  prac- 
tice in  the  courts  of  law,"  observes  Judge  Story,  "an  infant  generally  sues 
by  his  prochein  ami;  but  in  all  cases  defends  by  his  guardian"  and  again 
"when  it  is  said  that  he  must  sue  and  be  sued  by  his  guardian,  it  is  not  to 
be  understood  as  of  course,  that  it  is  by  his  general  guardian,  but  by  his 
guardian  ad  litem,  admitted  by  the  court  for  this  purpose. "lo  It  would 
seem  that  the  87th  rule  supra,  is  designed  to  require  that  an  infant  or 
other  incompetent  shall  always  defend  by  guardian  ad  litem ;  and  that 
an  infant  or  other  incompetent  sue  either  by  prochein  ami  or  regular  guard- 
ian. The  language  used  is  susceptible  of  the  construction  that  such  per- 
son must  sue  by  guardian  rather  than  prochein  ami,  if  he  has  any.  But 
such  cannot  have  been  the  intent  since  the  suit  might  often  be  in  hostility 
to  the  regular  guardian,  and  hence  that  construction  would  be  inimical  to 
the  ward's  interests. 

[b]  Infants  or  other  incompetents  as  defendants. 

Since  it  is  error  to  proceed  to  decree  against  a  minor  defendant  or  other 
incompetenti2  without  appointment  of  guardian  ad  litem, is  it  is  not  only 
proper  but  necessary  to  have  such  guardian  appointed  by  the  court. 1 4 
In  practice  the  regular  guardian  may  often  be  appointed  also  guardian  ad 
litem.  15  It  is  improper  for  a  court  to  appoint  a  guardian  ad  litem  for  in- 
fant defendants  who  is  suggested  by  plaintiff's  counsel  and  without  no- 
tice to  the  infants  or  their  friends; 1 6  at  least  where  the  court  acts  entire- 
ly upon  the  suggestion  and  without  itself  becoming  satisfied  of  the  ap- 
pointee's fitness.  The  court  will  sometimes  in  case  of  suit  to  which  in- 
fants  are  joint    parties    plaintiff  by    their   next    friend,   order   them   to   be 

sSee  7  Wheat.  VI.  et  seq.,  5  L.  ed.        i4Bank  of  linited  States  v.  Ritchie, 

377.  S  Pet.  144,  8  L.  ed.  890. 

loStory  Eq.    PI.    §   .58.  note.  isSee  Simmons  v.  Baynard,  30  Fed. 

12E.  g.  a  lunatic:     See  Harrison  v.  5.32,  where  infants  held  bound  bv  ap- 

Rowan.  4  Wash.  C.  C.  202,  Fed.  Cas.  pearance   of   father    as   guardian   ad 

^^'^o.  0.143.  litem;   Story  Eq.  PI.  §  58.  note. 

130'Hara    v.    McConnell,   93   U.   S.        isBank  of  U.  S.  v.  Ritchie,  8  Pet. 

152,  23  L.  ed.  840.  144,  8  L.  ed.  890. 

976 


I 


Procedure]  OBJECTION   FOR   DEFECT  OF    PARTIES.  §   1025 

joined  as  defendants  instead,  and  appoint  guardian  ad  litem  for  tliem.i" 
The  guardian  ad  litem  cannot  by  admissions  or  stipulations  surrender 
rights  of  the  infant. is  It  has  been  held  error  to  decree  against  infants 
iipon  an  unsworn  answer  by  guardian  admitting  the  allegations  of  the 
bill,  and  without  any  evidence  being  taken. is  But  in  a  more  recent  case, 
a  consent  decree  has  been  held  binding  upon  infants. 20  Service  upon  a 
minor  is  not  absolutely  essential,  and  he  may  be  bound  if  properly  repre- 
sented in  court  by  a  guardian.  1  The  mere  weakness  or  ignorance  of  a 
guardian  ad  litem  will  not  invalidate  a  decree  where  his  interests  were 
protected  by  intelligent  counsel. 2 

[c]  —  suing  as  plaintiff  by  -next  friend  or  guardian. 

"When  an  infant  claims  a  riglit  or  suffers  an  injury  on  account  of  which 
it  is  necessary  to  resort  to  a  court  of  chancery  to  protect  his  rights,  his 
nearest  relation,  not  concerned  in  point  of  interest  in  the  matter  in 
question,  is  supposed  to  be  the  person  who  will  take  him  under  his  pro- 
tection and  institute  a  suit  to  asseri  Ms  rights  .  .  .  and  it  is  for  this 
reason  that  a  person  who  institutes  a  suit  on  behalf  of  an  infant  is  termed 
'his  next  friend.'  "5  It  is  improper  to  sue  by  a  next  friend  who  has  a 
personal  interest. 6  A  next  friend  cannot  by  admissions  or  stipulations  sur 
render  rights  of  the  infant;'  though  he  may  waive  formalities  of  procedure 
if  without  prejudice  to  the  infants  rights. 8  He  cannot  accept  a  release  not 
conformable  to  a  decree  secured  in  the  infant's  favor.?  The  next  friend 
■should  bring  the  suit  in  the  infant's  name  and  not  his  own;  10  but  he  need 
not   exhibit  with   the   bill,  evidence  of  special  authority  to  sue  as   such.u 

§  1025.     Objection  for  defect  of  parties — hearing  where  objec- 
jection  taken  in  the  answer. 
Where  the  defernlant  shall,  by  his  answer,  suggest  that  the  bill  is 
•defective  for  want  of  parties,  the  plaintiff  shall  be  at  liberty,  with- 

iTSee    Jarvis    v.    Crozier.    98    Fed.  Y.  5.31.  45  Am.  St.  Rep.  6.3.3.  40  N.  E. 

•75,3.  218.   28  L.R.A.   359. 

isKingsbury  v.  Buckner.  134  U.  S.  2Thompson  v.  Maxwell   L.  Co.   108 

080,  33  L.  ed.*1047,  10  Sup.  Ct.  Rep.  I'.  S.  407,  42  L.  ed.  .530.  18  Sup.  Ct. 

038:   White  v.  Miller.  158  U.   S.   128,  Rep.  121. 

30  L.  ed.  021.  15  Sup.  Ct.  Rep.  788.  sDaniell    Ch.     Pr.     00.    quoted    in 

Hi  Bank  of  U.  S.  v.  Ritchie.  8  Pet.  Jarvis  v.  Crozier.  08  Fed.  755. 

144.  8  L.  ed.   800.  e.Tarvis  v.  Crozier.  08  Fed.  755. 

20Thompson     v.     Maxwell,     L.     0.  TKingsburv  v.  Buckner.   134  U.   S. 

Co.  168  I'.   S.  460,  42  L.  ed.  530,  18  680.  33  L.  ed.  1047.  10  Sup.  Ct.  Rep. 

Sup,  Ci.  Rep.  121 ;  compare  White  v.  638. 

.Tovce.  158  U.   S.  140,  30  L.  ed.  021,  sibid. 

15' Sup.  Ct.  Rep.  788.  sMorris   v.  Harmer.   7    Pet.   563.  8 

iManson   v.   Duncanson.    166  U.  S.  L.  ed.  781. 

•533.  41  L.  ed.  1105.  17  Sup.  Ct.  Rep.  lOMorgan  v.  Potter,  1.57  U.  S.  108. 

047:    contra   Woolridse   v.   :\I(Kenna.  30  L.  ed.  070.   15  Sirp.  Ct.   Rep.  500. 

8  Fed.  600;  sec  Thaw  v.  Ritcliie.  136  nKingsliurv  v.  Buchner.  134  V.  S. 

V.  S.  548.  .34  L.  ed.  5.38.  10  Sup.  Ct.  070.  33  L.  ed.  1047,  10  Sup,  Ct.  Rep. 

-Rep.   1044:   Sloane  v.  Martin,  145  X.  038. 
T^ed.  Proc— 62.                                977 


i 


§   1026  EQUITY    PROCEDURE.  [Code   Fed. 

in  fourteen  days  after  answer  filed,  to  set  down  the  cause  foi'  argu- 
ment upon  that  objection  only ;  and  the  purpose  for  which  the  same 
is  so  set  down  shall  be  notified  by  an  entry,  to  be  made  in  the  clerk's 
order  book,  in  the  form  or  to  the  effect  following  (that  is  to  say:) 
"Set  down  upon  the  defendant's  objection  for  want  of  parties." 
And  where  the  plaintiff  shall  not  so  set  down  his  case,  but  shall  pro- 
ceed therewith  to  a  hearing,  notwithstanding  an  objection  for  want 
of  parties  taken  by  the  answer,  he  shall  not,  at  the  hearing  of  the 
cause,  if  the  defendant's  objection  shall  then  be  allowed,  be  entitled 
;is  of  course  to  an  order  for  liberty  to  amend  his  bill  by  adding 
uartics..  But  the  court,  if  it  thinko  fit,  shall  be  at  liberty  to  dismiss 
ilu'biil. 

52nd  equity  rule,  promulgated  March,  1842. 

A  defect  or  misjoinder  of  parties  may  be  taken  advantage  of  by  demurrer 
where  apparent  on  the  face  of  the  bill. 1 4  it  may  also  be  raised  by  plea,i& 
which  plaintiff'  may  set  down  for  argument  or  to  which  he  may  reply. is 
Under  the  foregoing  rule  it  may  also  be  taken  in  the  answer.  In  any  of 
these  cases  plaintiff  may  elect  to  amend  rather  than  to  stand  upon  his  bill.iT 
While  defendant  may  object  to  a  defect  of  parties  in  the  answer  it  is  not 
an  objection  which  will  under  rule  39i8  excuse  full  answer.  The  objection, 
however  taken,  should  specify  the  names,  description  and  necessity  for  the 
omitted  parties.  1 9  This  rule  provides  so  speedy  a  way  of  settling  an  issue 
as  to  defect  of  parties,  that  a  court  on  application  for  leave  to  file  several 
pleas  may  very  properly  refuse  leave  to  file  one  raising  the  question  of  the 
character  of  the  parties.2  0 

§  1026.     Objection  for  defect  of  parties  at  the  hearing. 

If  a  defendant  shall,  at  the  hearing  of  a  cause,  object  that  a  suit 
is  defective  for  want  of  parties  not  having  by  plea  or  answer  taken 
the  objection,  and  therein  specified  by  name  or  description  the  parties 
to  w^hom  the  objection  applies,  the  court  (if  it  shall  think  fit)  shall 
be  at  liberty  to  make  a  decree  saving  the  rights  of  the  absent  parties. 
53rd  equity  rule,  promulgated  March,  1842. 

The  usual  rule  is  that  objection  for  defect  of  parties  must  be  raised  by 
demurrer,  plea  or  answer ;<  and  that  it  comes  too  late  at  the  hearing.^ 
The  right  to  object  at  that  time  in  extreme  cases,  was,  however,  recognized 

i4Ante.  §  970[c].  20See  u- ited  States  v.  Gillespie,  6 

ir.Ante.  §  97n[h].  Fed.   803. 

i«Ante,  §  P81-.  ^Greenleaf  v.  Queen.  1  Pet.  138.  7 

17 Ante,  §§  fl57.  958.  L.  ed.  85. 

IS  Ante,  §  99<l[a].  sSegee  v.   Thomas,   3   Blatchf.    11, 

iJ'Segee  v.  Thomas,  3  Blatchf.  11,    Fed.  Cas.  No.  12,633. 
Fed.  Cas.  No.  12.633. 

978 


I 


I'loceduie]  OBJECTION    FOR  DEFECT  OF  PARTIES.  §   1026 

prior  to  the  above  rule; 6  and  if  the  court  find  that  it  cannot  make  any 
decree  without  affecting  the  rights  of  parties  not  before  it,  it  must  neces- 
sarily dismiss  if  they  cannot  be  brought  in. 7 

s^lechanics'  Bank  v.  Seton,  1  Pet.        "Wallace    v.    Holmes,   9    Blatchf. 
2<»9.  7  L.  ed.  152;  Story  v.  Livingston,    65,  Fed.  Cas.  No.  17,100. 
13  Pet.  359,  10  L.  ed.  201. 


979 


CHAPTER  29. 

EQUITY  PROCEDURE    (CONTINUED)— TAKING  OF  TESTIMONY. 


Mode  of  proof  in  equity. 

Taking  of  testimony  orally  before  examiner. 

-^parties  or  their  counsel  to  be  present — cross  examination. 

—how   testimony   to   be   reduced   to   writing. 

— to  be  transcribed  by  stenographer  or  typewriter  on  request. 

■ — signing  of  the  testimony  by  the  witness  or  examiner. 

— statement   by   examiner — objections    to    questions — penalty    for 
irrelevant   matters. 

— compulsory    attendance   of    witnesses. 

— notice  of  time  and  place  of  examination. 

—transmission  of  testimony  to  clerk  of  court. 

— court  may   prescribe  order  of  taking  and   time   for  completing 
oral  testimony. 

— wlio  to  pay  for  stenography  and  typewriting. 

— but  court  may  direct  a  commission  and  written  interrogatories. 

Taking  testimony  by  commission  upon  interrogatories. 

— naming  of  the  commissioners. 

— form  of  the  last  interrogatory. 

Taking  testimony  by  deposition  under  statutory  provisions. 

Taking  of  testimony  de  bene  esse. 

Taking  testimony  in  open  court  at  hearing. 

Testimony  to  be  taken  within  three  months. 

Publication  of  the  testimony. 

Summoning    and    compensation   of    witnesses — refusal    to    appear 
or  testify. 
§  1036.     Mode  of  proof  in  equity. 

The  mode  of  proof  in  causes  of  equity  .  .  .  shall  be  accord- 
ing to  rules  now  or  hereafter  prescribed  by  the  supreme  court,  ex- 
cept as  herein  especially  provided. 

R.  S.  §  862,  U.  S.  Comp.  Stat.  1901,  p.  G61. 
[a]     The  section  in  general. 

The  above  provision  also  applies  to  admiralty  prooedure.i  It  was  original- 
ly enacted  August  23,  1842,  just  five  months  after  the  adoption  of  the  equity 
rules   of    1842,   which   contain   various   provisions   respecting   the   mode   of 

iPost.  §  1281. 

9S0 


§ 

1036. 

§ 

1037. 

§ 

1038. 

§ 

1039. 

§ 

1040. 

§ 

1041. 

:§ 

1042. 

§ 

1043. 

§ 

1044. 

'§ 

1045. 

§ 

1046. 

§ 

1047. 

§ 

1048. 

§ 

1049. 

§ 

1050. 

§ 

1051. 

§ 

1052. 

§ 

1053. 

§ 

1054. 

§ 

1055. 

§ 

1056. 

§ 

1057. 

IToceduie]  MODE  OF  PROOF  IN  EQUITY.  S   1036   [b] 

jiFoof  in  equity,  and  are  still  in  force.  The  clause  "except  as  herein 
especially  provided,"  refers  to  chapter  17  of  title  xiii.  of  the  Revised 
Statutes,  which  deals  with  "Evidence."  It  has  jirecisc  reference  to  the  pro- 
visions for  the  taking  of  depositions  contained  in  the  chapter  on  evideuce.2 
The  power  of  Congress  to  authorize  the  courts  to  regulate  the  equity  and 
admiralty  practice  by  rules,  is  well  settled. 3  The  earliest  statute  respect- 
ing mode  of  proof  in  the  Federal  courts  declai-ed  that  it  should  be  by  "oral 
testimony  and  examination  of  witnesses  in  open  court"  just  as  at  common 
law.4  But  an  act  of  1802  left  it  in  the  discretion  of  the  courts  to  take 
testimony  by  depositions,  if  that  practice  was  allowed  in  equity  by  the  law 
of  the  State  where  the  court  was  sitting. 5  These  enactments  were  not 
carried  into  the  revised  statutes,  and  some  question  accordingly  arose  as  to 
the  right  to  examine  witnesses  in  open  court  in  equity  cases. 6 

[b]     How  evidence  is  adduced  in  equity. 

Borrowing  their  practice  from  the  ecclesiastical  courts,  the  equity  tri- 
bunals formerly  took  the  evidence  in  a  cause  secretly  and  kept  it  secret 
until  the  day  for  its  "publication,"  when  zhe  proofs  became  accessible  to 
counsel,  and  after  which  additional  evidence  could  rarely  be  adduced. 9 
Counsel  procuring  the  examination  of  a  witness  drew  up  certain  interrog- 
atories and  furnished  them  to  the  examiner,  who  elicited  the  answers  of 
the  witness  secretly  and  in  the  absence  of  the  counsel.  The  opposite  counsel 
could  propound  cross  interrogatories  to  be  similarly  answered  secretly. 
Neither  knew  the  questions  propounded  by  the  other  nor  any  of  the  answers 
obtained  until  the  day  of  publication.  The  taking  of  proofs  at  the  hearing 
was  unknown,! 0  except  perhaps  the  proving  of  exhibits.!!  In  modern 
times  this  ancient  practice  has  been  greatly  altered.  The  element  of 
seerec}'  has  been  altogether  eliminated!  2  and  the  day  of  publication  is  has 
lost  much  of  its  importance.  The  statutory  provisions  respecting  the  taking 
and  use  of  depositions,! »  and  the  submitting  of  interrogatories  and  cross 
interrogatories,  apply  to  equity  causes.  Witnesses  before  examiners  are 
subject  to  examination  and  cross  examination  by  opposing  counsel;! 6  and 
the  court  in  its  discretion  may  permit  the  testimony  of  one  or  more  wit- 
nesses to  be  adduced  oraly  in  open  court.! 7  The  usual  mode  of  proof  in 
equity  practice  where  witnesses  are  within  the  jurisdiction,  is  oral  examina- 
tion before  the  examiner.! 8     But  such  testimony  may  also  be  presented  by 

2See  post,  ?§  1761,  et  seq.  sWood  v.  Mar.n.  2  Sumn.  31(5,  Fed. 

sWliite    V.    Toledo,    etc.    R.    R.    79  Cas.  Xo.  ]7.n.53.  per  Storv,  J. 

Fed.   133.  24  C.  C.  A.  467;  see  ante,  loRoe  Wood  v.  Mann,  2  Sumn.  316, 

S  802   [a].  Fed.  ('as.  Xo.  17.9.53,  per  Storv-,  -J. 

4 Act  Sept.  24,  1780,  §  ,30.  !iDe  Butts  v.  Bacon,  1    Cra'nch   C. 

5Act  April  29.  1802.  §  25.  2  Stat.  C.  .569.  Fed.  Cas.  Xo.  3,717. 

166:   See  Connecticut  v.  Pennnsylva-  i2Sce  rule  67,  post  §  1038. 

nia,  .5  Wheat.  424.  5  L.   ed.  126*;  see  !3See  post.  ?  1056. 

also  White  v.  Toledo,  etc.   R.   R.   79  isPost.  §  1761. 

Fed.  134.  24  C.  C.  A.  407,  reviewing  lePost,  §  1038. 

the  statutes.  !-Post.  §   1054. 

6See  post,  §  1054.  !sPost,  §  1037. 

981 


§    1037  EQUITY    PROCEDUUE.  [Code  FoJ. 

deposition  under  statutory  provisions,! &  or  by  deposition  proeur;'  I  upon  a 
commission  with  written  interrogatories  in  case  neither  party  elects  to 
have  oral  examination, 20  or  if  the  court  in  its  discretion  and  upon  motion, 
so  directs.!  So  also  testimony  may  be  adduced  by  oral  examination  in 
open  court.-  Where  a  witness  is  beyond  the  jurisdiction  or  otherwise 
unable  to  appear  before  the  examiner  in  the  place  where  proceedings  are 
had,  his  testimony  may  be  procured  by  deposition  taken  pursuant  to  the 
acts  of  Congress; 3  or  upon  a  commission  under  a  dedimus  potestatem  pur- 
suant to  the  equity  rules;*  or,  if  in  a  foreign  country,  then  by  deposition 
or  letters  rogatory.s  By  consent,  a  witness  in  another  part  of  the  United 
States  may  be  examined  before  an  examiner  in  the  district  where  he  is 
found; 6  although  it  would  seem  that  the  court  has  no  power  to  compel  a 
substitution  of  this  mode  of  obtaining  testimony  for  the  regular  mode  by 
deposition  or  commission.  The  taking  of  testimony  before  a  master  on  a 
reference,  is  governed  by  equity  rule  77.7 

§  1037.     Taking  of  testimony  orally  before  examiner. 

Either  party  may  give  notice  to  the  other  that  he  desires  the  evi- 
dence to  be  adduced  in  the  cause  to  be  taken  orally,  and  thereupon 
all  the  witnesses  to  be  examined^*^]  shall  be  examined  before  one  of 
the  examiners^*^^  of  the  court,  or  before  an  examiner  to  be  specially 
appointed  by  the  court.  The  examiner,  if  he  so  request,  shall  be 
furnished  with  a  copy  of  the  pleadings. "^^^ 

Part  of  67th  equity  rule  as  amended  May  3,  1892. 

[a]     In  general. 

The  foregoing  varies  from  the  corresponding  part  of  an  amendment  adopt- 
ed at  the  December  term,  1861,  only  in  that  the  earlier  provision  required 
"the  examiner  to  be  furnished  with  a  copy  of  the  bill  and  answer,  if  any."  12 
As  originally  adopted  in  1842  the  rule  provided  for  oral  examination  in  lieu 
of  interrogatories  only  by  mutual  agreement. 1 3  In  the  equity  rules  of  1822 
it  was  provided  that  "All  testimony  taken  under  a  commission  shall  be 
taken  on  interrogatories  and  cross  interrogatories  filed  in  the  cause  unless 
the  parties  shall  dispense  therewith."! *  Notwithstanding  an  election  by 
either  party  to  take  proofs  on  oral  examination  the  court  may  on  motion 

!9Post.  §  1052.  sBisclioffsheim  v.   Baltzer.   10  Fed. 

20 Post,  5?  1049.  1.  4.  20  Blatchf.  229;  .see  post.  §  1760 

iPost,  S  1048.  et  seq. 

2Post.  §  10.54.  6See  In  re  Allis.  44  Fed.  216. 

3See   post.    §    \0ry2.      The    statutes  T.See  post.  §   1072. 

now    permit    deposition    to    be    taken  !2.See  I.'^O  U.  S.  707,  20  L.  ed.  016, 

in  the  nio(h>   nllovvod  bv  State  laws.  !3See    Van    Hook    v.    Pendleton.    2 

4  Post.    104n.      So.    riile    2.5    of    the  Blatclif.    S5.    Fed.    Cas.    Xo.    16,852; 

equity    rules    of    1822    provided    that  Bischofl'sc-lieim  v.  Baltzer,  10  Fed.  2, 

"Testimony   may  be  taken   according  20  Blatchf.  229. 

to  tl'.e   acts  of   Congress  or  under   a  i^Rule  26,  see  7  Wheat,  VI  et  seq. 

commission."     See   7   Wheat.   VI,   et  5  L.  ed.  377. 
soq,  ,5  L.  ed.  376. 

982 


1 


Proceduie]  TESTIMONY   ORALLY   BEFOUE    EXAMINER.  §   1037    [b] 

order  a  commission. is  Upon  motion  for  preliminary  injunction  a  party 
desiring  to  take  the  testimony  of  an  unwilling  witness  should  obtain  the 
appointment  of  an  examiner  by  the  court,  providing  for  due  notice  to  the 
opposite  party. 16  In  appointing  an  examiner  it  is  contrary  to  equity 
practice  to  limit  the  character  of  the  testimony  he  may  receive,i7  or  to 
deny  a  party  the  right  to  take  testimony  because  it  seems  irrelevant. i'* 
Scandalous  and  impertinent  testimony  is  penalized  by  the  imposition  of 
costs;  19  and  it  is  the  settled  practice  of  courts  of  equity  to  include  all  evi- 
dence, relevant  and  otherwise,  in  the  record,  so  that  the  trial  and  after- 
wards the  appellate  court  may  pass  finally  upon  the  cause. 20  If  parties 
agree  to  the  taking  of  testimony  before  any  officer  qualified  to  administer 
oaths  without  appointment  as  examiner,  the  deposition  so  taken  should  be 
filed  in  the  cause  and  may  not  be  suppressed  by  the  party  for  whom  it  was 
taken.  1  So  if  the  parties  agree  to  the  taking  of  the  testimony  by  a  type- 
writer in  counsel's  office  and  only  in  the  constructive  presence  of  the  ex- 
aminer, neither  has  a  right  to  abandon  that  agreement  and  compel  the 
further  proceeding  to  be  actually  before  the  examiner,  without  adequate 
cause. 2  A  Federal  court  has  no  jurisdiction  to  order  the  removal  of  docu- 
ments produced  before  an  examiner,  on  subpoena  duces  tecum  to  another 
district. 3 

[b]     Oral  examination  before  examiners  outside  the  district. 

There  is  some  question  whether  this  provision  is  to  be  interpreted  as  re- 
ferring only  to  testimony  adduced  from  witnesses  at  the  place  where  the 
proceedings  are  had,  or  as  including  also  the  taking  of  the  testimony  of 
witnesses  elsewhere.  It  is  not  in  terms  confined  to  "the  evidence  to  be 
adduced"  at  the  place  where  the  proceedings  are  had;  and  Mr.  Justice 
Bradley  in  a  case  at  circuit  thought  the  rule  should  be  liberally  interpreted 
as  permitting  the  taking  of  testimony  before  an  examiner  outside  the 
court's  jurisdiction  whenever  a  party  desires  it.7  Several  subsequent  cases 
have  sanctioned  the  practice  of  appointing  special  examiners  to  take  testi- 
mony orally  beyond  the  district  and  of  empowering  a  master  to  take  testi- 
mony orally  in  other  districts  ;8  though  recognizing  sometimes  the  need  for 
discretion  in  the  exercise  of  the  power,  to  avoid  unnecessary  hardship  and 

15 See  post,  §  1048.  niott  Iron  Works  v.  Standard  M. 

isHnmmerschlag  Mfg.  Co.  v.  Judd,  Co.  48  Fed.  34.'i. 

2G  Fed.  •2n2.  2Ballard    v.     McCluskcy.    rrl    Fed. 

1  "United    States    v.    American    B.  677. 

T.  Co.  .39  Fed.  -ZnO.  "Popper  v.  Rogers.  1.17   Fed.  173. 

isFayerweatilior   v.   Ritcli.    SO    Fed.  TRnilroad   v.   Drew.   3  WooiU.   m] , 

529;  see  Parisian  C.  Co.  v.  Kschwege,  Fed.  Cas.  Xo.  17.434;   In  re  Stewart. 

92  Fed.   721;    Whitehead,  etc.  Co.  v.  29  Fed.  813;  Johnson  Co.  v.  Steel  Co. 

O'Callahan.    130  Fed.   243.  48    Fed.    191.   approved    in    White    v. 

iflSee  post.  S  1042.  Toledo,   etc.  P.    R.   79    Fed.    13.1.    13(5. 

20Spe  Plensp   v.   Carlington.   02  U.  24   C.    C.    A.    407,   but    declaiing   the 

S.  7,  23  L.  ed.  521  ;   Faycrweather  v.  courts  should  be  cautious  in  excrcis- 

Ritch.  89  Fed.  529;  Lloyd  v.  Pennio.  ing   the   power   of  appointing  exam- 

50   Fed.   4;    Xelson   v.   United   States,  iners   elsewhere. 

201   U.  S.  92.  50  L.  ed.  G73,  20  Sup.  sM-ujone  v.  Colorado,  etc  :VIin.  Co. 

Ct.   Rep.    353.  135  Fed.  SoO;  In  re  Steward.  29  Fed. 

983 


§   1037   [c]  EQUITY    PROCEDURE.  [Code  Fed. 

expense. 9  The  propriety  of  so  doing  has  however  been  questioned  by  able 
juoijes,  who  have  pointed  out  the  unnecessary  expense  that  the  practice 
might  entail. 10  Undoubtedly  it  is  proper  and  in  accordance  with  the  spirit 
of  this  rule,  for  the  court  on  issuing  a  commission  to  take  testimony  else- 
where, to  permit  a  party  so  desiring,  to  examine  orally,  though  the  other 
submitted  interrogatories.il  So  parties  may  validly  agree  to  take  testi- 
mony elsewhere  in  the  United  States  orally  before  an  examiner.i2  But 
it  does  not  seem  to  the  writer  that  the  rule  was  intended  to  refer  to  any 
other  evidence  than  that  to  be  adduced  at  the  place  where  the  proceedings 
are  had.  Any  other  construction  gives  the  words  "thereupon  all  the  wit- 
nesses to  be  examined  shall  be  examined  before  one  of  the  examiners  of 
the  court"  a  sweeping  force  which  brings  them  into  direct  conflict  with  the 
statutory  provisions  permitting  the  use  of  depositions  of  witnesses  more 
than  one  hundred  miles  away  and  in  other  districts,  and  authorizes  them 
to  be  taken  before  other  than  Federal  court  examiners. 

[c]     Examiners  in  equity. 

Although  examiners  in  chancery  are  nowhere  provided  for  either  by 
Federal  statute  or  rule,  their  existence  as  an  adjunct  of  the  business  of  Fed- 
eral courts  of  equity  followed  naturally  from  the  adoption  of  customs  and 
practices  of  the  chancery  courts  of  England,  after  which  our  procedure  is 
modeled.15  They  are  referred  to  and  their  existence  is  assumed  in  the 
equity  rules  of  1822 ;i6  and  again  in  the  present  rules. 1 7  The  courts  are 
not  required  to  appoint  a  special  examiner  in  each  case,  but  may  appoint 
one  or  more  standing  examiners.  In  the  southern  district  of  New  York  the 
practice  of  appointing  standing  examiners  goes  back  to  1828  and  the  right 
to  appoint  a  standing  examiner  is  settled. is  It  is  not  uncommon  for  par- 
ties by  agreement  to  dispense  with  the  actual  presence  of  an  examiner,!* 
or  agree  upon  some  person  without  special  appointment  by  th>i  court.- o 

§  1038.  —  parties  or  their  counsel  to  be  present — cross  examina- 
tion. 

Such  examination  shall  take  place  in  the  presence  of  tlie  parties 

813:    Johnson,   etc.   Co.   v.   Steel   Co.  uSee  Bischoffschein  v.  Baltzer.  10 

48  Fed.  191:  Bate.  etc.  Co.  V.  Gillette,  Fed.    1.   20   Blatohf.   220:    Bate,   etc. 

28  Fed.  676:  White  v.  Toledo,  etc.  R.  Co.  v.  Gillette,  28  Fed.  676. 

R.  79  Fed.  133.  24  C.  C.  A.  467:   In  i2See  In  re  Allis,  44  Fed.  21G. 

re   Spoflford,  62  Fed.  443:   Consol.  F.  i5See  ante.  §   037. 

Co.  V.  Columb.  Co.  85  Fed.  54.  leSee    Rule    28.    7    \Mieat.    VI.    ct 

9See   White  v.   Toledo,   etc.   R.   R.  seq.  5  L.  ed.  377. 

79   Fed.   133.  24   C.   C.   A.   467;   Ma-  iTRule   78.     post   §   1057   and   ni^e 

gone  V.   Colorado,   etc.  Min.   Co.   135  67  ut  supra. 

Fed.  850.     The  court  may  require   a  is  Van      Hook      v.      Pendleton,      2 

commission  and  interrogatories  in  its  Blatchf.  8.5,  Fed.  Cas.  No.   16.852. 

discretion.     See  post  §  1048.  isS^e     Ballard    v.    McCluskey,    52 

lOLacombe     and     Blatchford.     .i.J.  Fed.  677. 

in  the  southern  district  of  New  York:  2o;Mott  Iron  Works  v.  Standard  M. 

Arnold  v.  Chee'^eborough.  35  Fed.  16.  Co.  48  Fed.  345, 
But  see  In  re  Spoflford,  62  Fed.  443. 

984 


ProcedureJ  TAKING   OF    TESTIMONY.  §   1040> 

or  their  agents,  by  their  counsel  or  solicitors,  and  the  witnesses  shall 
be  subject  to  cross-examination  and  reexamination,  all  of  which 
shall  be  conducted  as  near  as  may  be  in  the  mode  now  used  in  coin- 
mon-law  courts. 

Fart  of  §  67th  equity  rule  as  amended  ilay  3,  1892. 

The  above  provision  was  the  same  in  the  amendment  adopted  at  the- 
December  term,  1861. &  The  amendment  of  1892  merely  re-enacted  this 
particular  portion  of  the  rule. 6  If  a  party  refuses  to  produce  a  witness  for 
cross-examination,  his  testimony  in  chief  will  be  suppressed."  Upon  re- 
fusal to  continue  cross-examination  in  an  agreed  mode  dispensing  with  the 
actual  presence  of  an  examiner,  the  court  may  declare  the  witnesses  testi- 
mony closed  where  there  was  no  adequate  reason  for  departing  from  the 
agreement.  8 

§  1039.  —  how  testimony  to  be  reduced  to  writing. 

The  depositions  taken  upon  such  oral  examination  shall  be  re- 
duced to  writing  by  the  examiner,  in  the  form  of  question  put  and 
answer  given;  provided,  that,  by  consent  of  parties,  the  examiner 
may  take  down  the  testimony  of  any  witness  in  the  form  of  narrative. 
Part  of  67th  equity  rule  as  amended  May  3,  1892. 

The  earlier  amendment  adopted  at  the  December  term,  1861,  provided  that 
"the  depositions  taken'  upon  such  oral  examinations  shall  be  taken  down  in 
writing  by  the  examiner  in  the  form  of  narrative,  unless  he  determines  the- 
examination  shall  be  by  question  and  answer  in  special  instances."!  i 

§  1040.  —  to  be  transcribed  by  stenographer  or  typewriter  on  re- 
quest. 

At  the  request  of  either  party,  with  reasonable  notice,  the  depo- 
sition of  any  witness  shall,  under  the  direction  of  the  examiner,  be 
taken  down  either  by  a  skilful  stenographer  or  by  a  skilful  type- 
writer, as  the  examiner  may  elect,  and  when  taken  stenographically 
shall  be  put  into  typewriting  or  other  writing ;  provided,  that  such 
stenographer  or  typewriter  has  been  appointed  by  the  court,  or  is 
approved  by  both  parties. 

Part  of  67th  equity  rule  as  amended  ^lay  3,  1892. 

This  portion  of  the  amendment  of  1892  is  entirely  new.  There  is  no  of- 
ficial statutory  court  reporter  in  the  Federal  courts. 

5See  20  L.  ed.  U.  S.  917.  sBallard  v.  McCluskev.  52  Fed.  677. 

6Ree  1.39  U.  S.  707,  "See   20   L.   ed.    U.  "S.   p.   917;    1 

TSliapleigh  v.  Chester,  etc.  Ck).  47    Black,  6. 
Fed.  848. 

985 


S   1041  EQUITi'  PROCiODUKE.  L<  <>de    I'e>l. 

§  1041.  —  signing  of  the  testimony  by  the  witness  or  examiner. 
The  testimony  of  each  witness,  after  such  reduction  to  writing-, 
shall  be  read  over  to  him  and  signed  by  him  in  the  presence  of  the 
examiner  and  of  such  of  the  parties  or  counsel  as  may  attend ;  pro- 
vided, that  if  the  witness  shall  refuse  to  sign  his  deposition  so  taken, 
then  the  examiner  shall  sign  the  same,  stating  upon  the  record  the 
reasons,  if  any,  assigned  by  the  witness  for  such  refusal. 
Part  of  67th  equity  rule  as  amended  May  3,  1892. 

The  earliei  provis^ion  upon  this  subject  was  contained  in  an  amendment  of 
1861  and  provided  that  the  deposition  when  completed  "shall  be  read  over 
to  the  witness  and  signed  by  him  in  the  presence  of  the  parties  or  counsel, 
or  such  of  them  as  may  attend;  provided,  if  the  witness  shall  refuse  to 
sign  the  said  deposition,  then  the  examiner  shall  sign  the  same."i ' 

§  1042.  — statement    by    examiner — objections    to    questions — 
penalty  for  irrevelant  matters. 

The  examiner  may,  upon  all  examinations,  state  any  special  mat- 
ters to  the  court  as  he  shall  think  fit ;  and  any  que^stion  or  questions 
which  may  be  objected  to  shall  be  noted  by  the  examiner  upon  the 
deposition,  but  he  shall  not  have  power  to  decide  on  the  competency, 
materiality,  or  relevancy  of  the  questions;  and  the  court  shall  have 
power  to  deal  with  the  costs  of  incompetent,  immaterial,  or  irrele- 
vant depositions,  or  parts  of  them,  as  may  be  just. 
Part  of  §  67th  equity  rule  as  amended  May  3,  1892. 

As  respects  this  portion  of  the  amendment  of  1892,  it  merely  carries 
forward  the  earlier  amendment  adopted  at  the  December  term,  1861,  and  is 
to  this  extent  identical  therewith.i"  The  court  does  not  in  advance  limit 
the  testimony  to  be  taken,  to  any  particular  issue  or  issues. is  The  ex- 
aminer can  only  note  exceptions  and  not  pass  upon  their  validity.io  It  is 
for  the  court  to  protect  against  the  injection  of  scandalous  and  impertinent 
matters  into  the  testimony  by  the  imposition  of  costs. 20  Even  privileged 
matter  such  as  letters  between  husband  and  wife  should  be  produced  before 
the  examiner  and  made  part  of  the  record,  so  that  the  trial  and  appellate 
courts  may  pass  thereon. 1  It  is  not  the  practice  for  the  court  to  pass  upon 
questions  of  the  relevancy  of  evidence  during  an  examination  b^fo'-*^  the 

14 See   20    L.    ed   U.    S.    p.    917;    1        2oSoe  Kellev  v.  Boettcher.  8.5  Fed. 

Black,  6.  57.  29  C.  C.  A.'  14:  Brown  v.  Worster. 

iTSee   1   Black.  6.  113    Fed.    20;     Griffith    v.    Shaw,    89 

1820  L.  ed.  U.  S.  917;  United  States  Fed.    313;    Zunkel    v.    Litchfield.    21 

v.  American   B.  T.   Co.   39   Fed.   230.  Fed.  196.    Some  of  the  circuit  courts 

See  Parisian  C.  Co.  v.  Eschwege,  92  have  rules  UDon  this  subject. 
Fed.  721.  iLloyd  v  Pennie,  50  Fed.  4. 

iflBlease   v.    Garlington.   92    U.   S. 
7,  23  L.  ed.  521. 

986 


Proceduie]  TRANSMISSION  OF  TESTIMONY  TO  CLERK.  S    1043 

examiner,2  but  to  order  the  answer  taken  and  reserve  judgment  thereon 
to  the  hearing. 3  But  where  part  of  an  answer  is  stricken  out,  the  court  in 
another  district  where  evidence  is  being  taken,  will  on  application  exclude 
testimony  offered  on  that  part.*  Failure  to  object  when  the  evidence  is 
taken  will  not  forfeit  the  right  to  make  objection  at  the  hearing.5 

§  1043.  —  compulsory  attendance  of  witnesses, 
j  In  case  of  refusal  of  witnesses  to  attend,  to  be  sworn,  or  to 

answer  any  question  put  by  the  examiner,  or  by  counsel  or  solicitor, 
the  same  practice  shall  be  adopted  as  is  now  practised  with  respect 
to  witnesses  to  be  produced  on  examination  before  an  examiner  of 
said  court  on  written  interrogatories. 

Part  of  67th  equity  rule  as  amended  May,  3,  1892. 

This  portion  of  the  amendment  of  1892  merely  carries  forward  and  is 
identical  with  the  earlier  amendment  adopted  at  the  December  term, 
1861.8  The  penalty  for  refusal  to  appear  or  testify  is  prescribed  by  equity 
rule  78,9  and  by  R.  S.  §  868. lo  Where  by  consent,  testimony  in  another 
jurisdiction  is  taken  upon  oral  examination  before  an  examiner  instead  of 
deposition  or  commission,  the  court  having  jurisdiction  in  the  district  where 
the  examination  occurs,  is  the  one  having  power  to  punish  a  contumacious 
witness.!  1 

§  1044.  —  notice  of  time  and  place  of  examination. 

Xotiee  shall  be  given  by  the  respective  counsel  or  solicitors  to  the 
opposite  counsel  or  solicitors,  or  parties,  of  the  time  and  place  of  the 
examination,  for  such  reasonable  time  as  the  examiner  may  fix  by 
•order  in  each  cause. 

Part  of  G7lh  equity  rule  as  amended  May  3,  1892. 

This  portion  of  the  amendment  of  1892  merely  carries  forward  and  is 
identical  with  the  earlier  amendment  adopted  at  the  December  terra.  1861.1* 
The  taking  of  evidence  by  referees  without  the  giving  of  any  notice  has  been 
held  fatal  to  an  award.is 

§  1045.  —  transmission  of  testimony  to  clerk  of  court. 

When  tlie  examination  of  witnesses  before  the  examiner  is  con- 
cluded, tlio  original  depositions,  authenticated  by  the  signature  of 

zDowagiac    Mfg.  Co.    v.    Lochren,        sDiamond,  etc.   Co.  v.  Kelly  Bros. 

143   Fed.  211,   rule  applied   to  ancil-    120  Fed.  282. 

l:irv  court  before   whicl)   evidence   is        "See  1  Black  6.  20  L.  ed.  U.  S.  917. 

tnken.  9  See  post   §   10.57. 

^-KT     •          i./-i  /-.li-        in            lOSee  post.  §  1767. 

,n;  ?^'°";a     ''•  ""■            '                       iiTn  re  Allis.  44  Fed.  216. 

KM   hcd.  AJ.  i^j;,pg   ^    Black.    6.   20    L.   ed.   917. 

4  Independent,  etc.  Co.  v.  Boorman.        is  New   York   v.   Du   Bois,   86   Fed. 

137   Fed.  99.5.  S89. 

987 


§   1046  EQUITY    TUOCEDURE.  [Code   Fed. 

tlie  examiner,  shall  be  transmitted  by  him  to  the  clerk  of  the  court,, 
to  1)e  there  filed  of  record,  in  the  same  mode  as  prescribed  in  section 
805  of  the  revised  statutes. 

Part  of  07th  equity  rule  as  amended  May  3,  1892. 

The  portion  of  the  earlier  amendment  of  1802  superseded  by  the  above,., 
used  the  term  "deposition"  instead  of  "depositions,"  and  referred  to  §  30- 
of  the  act  of  1789,  instead  of  to  R.  S.  §  865  which  is  the  early  statute 
carried  forward  into  the  revision.  An  examiner  need  not  file  the  prtjofs^ 
until  his  fees  are  paid.iT 

§  1046.  —  court  may  prescribe  order  of  taking  and  time  for  com- 
pleting oral  testimony. 
Where  the  evidence  to  be  adduced  in  a  cause  is  to  be  taken  orally,, 
as  before  provided,  the  court  may,  on  motion  of  either  party,  assign 
a  time  within  which  the  complainant  shall  take  his  evidence  in 
support  of  the  bill,  and  a  time  thereafter  within  which  the  defend- 
ant shall  take  his  evidence  in  defense,  and  a  time  thereafter  within 
which  the  complainant  shall  take  his  evidence  in  reply;  and  no 
further  evidence  shall  be  taken  in  the  cause,  unless  by  agreement  of 
the  parties  or  by  leave  of  court  first  obtained,  on  motion  for  cause 
shown. 

Part  of  amendment  to  67th  equity  rule  promulgated  at  December  term, 
1869,  as  amended  May  3,  1892. 

The  amendment  of  1892  consists  merely  in  the  substitution  of  "as  before 
provided"  for  "as  provided  in  the  order  passed  at  the  December  term,  1861, 1 9 
aniendijig  the  67th  General  Rule."2o  The  matters  referred  to  by  "as  before 
provided"  are  the  preceding  nine  sections  of  this  text.i  By  rule  69  testi- 
mony is  to  be  taken  in  three  months  after  the  cause  is  at  issue.2  The  rules 
of  1822  gave  six  months  from  the  time  of  replication,  for  the  taking  of  evi- 
dence, and  permitted  either  party  at  the  expiration  of  that  time  to  set  the 
cause  for  hearing.  Depositions  taken  afterwards  unless  by  consent,  special 
order,  or  taken  out  of  the  district,  were  not  admissible.3  Prior  to  the 
above  amendment  it  was  the  practice  in  equity  for  parties  to  proceed  inde- 
pendently in  the  taking  of  their  proofs,  and  not  in  the  orderly  manner  of 
courts  of  law,  where  plaintiff's  proof,  defendant's  defense  and  plaintiff's- 
rebuttal  follow  in  regular  sequence.  Under  this  amendment,  and  that  of  1861, 
respecting  oral  examination  of  witnesses,*  a  party  may  now  hare  the  evi- 
dence adduced  in  a  mode  very  similar  to  that  prevailing  in  trials  at  law. 

iTFrosp   V.  Biedenfeld,   14    Blatchf.         zpost  §  1055. 
402.   Fed.   Cas.   No.   5,111.  3See  Paile  25,  7  Wheat.  VI,  et  scq. 

i^See    1    Black,  VI.  5  L.  ed.  376. 

2f^Spe  9  Wall.  VIT.   139  U.  S.  707.        4Ante,  §§   1037,  et  seq. 
lAnte,  g§  1037-1045. 

988 


a'rocedure]  TAKING  OF  TESTIMONY.  §    1048 

Leave  may  be  obtained  to  take  evidence  in  surrebuttal  upon  notice  setting 
up  tlie  precise  fact  which  applicant  desires  to  prove. 5 

§  1047.  —  who  to  pay  for  stenography  and  typewriting. 

The  expense  of  the  taking  down  of  depositions  by  a  stenographer 
and  of  putting  them  into  tA'pewriting  or  other  writing  shall  be  paid 
in  the  first  instance  by  the  party  calling  the  witness,  and  shall  be 
imposed  by  the  court,  as  part  of  the  costs,  upon  such  party  as  the 
•court  shall  adjudge  should  ultimately  bear  them. 

Part  of  amendment  of  G7th  equity  rule,  promulgated  May  2,  1892. 

§  1048.  —  but  court  may  direct  a  commission  and  written  inter- 
rogatories. 
Testimony  may  be  taken  on  commission  in  the  usual  way,  by 
written  interrogatories  and  cross-interrogatories,  on  motion  to  the 
court  in  term  time,  or  to  a  judge  in  vacation,  for  special  reasons, 
satisfactory  to  the  court  or  judge. 

Part  of  amendment  of  December  term,  1861,  of  67th  equity  rule. 

The  amendment  of  May  3,  1892,  merely  carried  forward  this  provision 
without  change,  although  modifying  the  amendment  of  1861  in  other  re- 
spectss  The  purpose  of  the  amendment  adopted  at  the  Decen-l.er  tes-n;. 
1861,  was  to  require  the  taking  of  the  testimony  of  witnesses  within  the 
jurisdiction,  orally  instead  of  by  written  interrogatories  where  either  party 
so  requested; 9  whereas  the  earlier  rule  only  permitted  that  practice  when 
both  consented  and  agreed  thereto.  The  amendment  concluded  with  this 
provision  for  written  interrogatories,  on  motion,  "for  special  reason  satis- 
factory to  the  court  or  judge."  While  not  altogether  clear,  the  intent  would 
seem  to  have  been  to  protect  against  possible  hardship  or  inconvenience  in 
tlie  working  of  the  new  practice,  and  to  reach  cases  where  oral  examination 
would  not  be  feasible  for  part  of  the  witnesses,  though  within  the  juris- 
diction.!«  It  seems  not  to  apply  to  the  taking  of  testimony  on  commis- 
sion outside  of  the  court's  jurisdiction,  since  that  is  covered  by  another  pro- 
vision of  the  same  rule.n  "In  the  usual  way"  refers  to  what  had  been  the 
ancient  and  customary  mode  of  taking  depositions  on  commission  in  courts 
of  equity  and  not  to  the  statutory  model  2  under  R.  S.  §  866.13  Since  the 
amendment  of  1861  that  way  has  become  the  exception  and  not  the  usual 
way.i^ 

5Rubber   T.    \V.    Co.   v.    Columbia.  nSee  post.  §   1049. 

etc.  Co.  89  Fed.  593.  laBisHioff-^cheim     v.     Baltzer,     10 

sSee   1   Black.  VI.  20  L.  ed.  IT.  S.  Fed.  3.  20  Blatchf.  229. 

•917,   1.39  U.  S.  707.  isSee  post,  §  1705. 

9 Ante.  §   1037.  uBischotfscheim     v.     Baltzer,     10 

loSee  Bi-^choffscheim  v.  Baltzer.  10  Fed.  3.  20  Blatchf.  229. 
Fed.  3,  20  Blatchf.  229. 

939 


§   1049 


EQUITY   TROCEDURE. 


[Code   Fed. 


§  1049.  Taking  testimony  by  commission  upon  interrogatories. 
x4fter  the  cause  is  at  issue,  commissions  to  take  testimony  mav  be 
taken  out  in  vacation  as  well  as  in  term,  jointly  by  both  parties,  or 
severally  by  either  party,  upon  interrogatories  filed  by  the  party 
taking  out  the  same  in  the  clerk's  office,  ten  days'  notice  thereof 
being  given  to  the  adverse  party  to  file  cross-interrogatories  Ijefore 
the  issuing  of  the  commission ;  and  if  no  cross-interrogatories  are 
filed  at  the  expiration  of  the  time  the  commission  may  issue 
ex  parte. 

Part  of  67th  equity  rule  promulgated  March,  1842.  , 

[a]     In  general. 

This  portion  of  the  67th  rule  has  been  unafl'ected  by  the  numerous  amend- 
ments since  made.  However,  since  the  amendment  permitting  either  party 
to  demand  oral  examination  of  witnesses  before  examiners. is  the  practice 
of  taking  the  testimony  of  witnesses  within  the  jurisdiction,  on  written 
interrogatories  is  infrequent.  Commission  is  still  a  convenient  mode  of  ob- 
taining testimony  outside  the  court's  jurisdiction.! 9  The  rules  of  1822  re- 
quired that  the  "interrogatories  shall  be  filed  in  the  clerk's  office  ten  days 
previous  to  a  rule  day,  after  which  the  defendant  shall  be  allowed  five  days 
to  iile  his  cross-interrogatories,  unless  he  waives  his  right."20 

[bj     Execution  of  commission. 

Tlii'  authority  of  commissioners  is  special  and  must  be  strictly  pursued.J 
It  must  be  executed  in  the  place  directed  and  none  other.4  Each  inter- 
rogatory must  be  separtely  answered  and  an  omission  is  faiaT  to  the 
whole  deposition; 5  especially  an  omission  to  answer  the  jTeiieral  inter- 
rogatory.6  All  must  be  substantially  answered."  The  cross,  as  wfll 
as  the  direct  interrogatories  must  be  put; 8  if  there  are  any.:'  Ifp^y. 
ever,  if  the  interrogatories  are  hypothetical,  or  to  be  asked  in  a  certain 
event  which  does  not  happen,  or  refer  to  records  which  speak  for  them- 
selves,  they  need  not  be  answered.io     It  is  no  objection  that  direct  and 


isAnt^.  §  1037. 

i9See  ante,  §   1036  [b]. 

2  0Rule  26.  see  7  Wheat.  VI,  et  seq. 
5  L.  ed.  377. 

3Armstrong  v.  Brown,  1  Wash.  C. 
C.  43,  Fed.  Cas.  No.  542;  Munns  v. 
De  Nemours,  3  Wash.  C.  C.  31.  Fed. 
Cas.  No.  9,926:  Willings  v.  Consequa. 
1  Pet.  C.  C.  301,  Fed.  Cas.  No.  17.- 
767 :  Lonsdale  v.  Brown,  3  Wash  C. 
C.  404,  Fed  Cas.  No.  8,492. 

■ipoudereau  v.  Montgomeiv  4 
Wash.  C.  C.  186.  Fed.  Cas.  No.  f,694; 
Phoades  V.  Selin.  4  Wash.  C.  C.  715. 
Fed.  Cas.  No.  11,740. 


BKetland  v.  Bissett,  1  Wash.  C.  C. 
144.  Fed.  Cas.  No.  7,742. 

ePichardson  v.  Golden.  3  Wash.  C. 
C.  109,  Fed.  Cas.  No.  11.782;  Phoades 
V.  Selin.  4  Wash.  C.  C.  715,  Fed.  Cas. 
No.   11,740. 

^Dodge  V.  Israel.  4  Wash.  C.  C. 
323.    Fed.   Cas.   No.   3.952. 

^Gilpins  V.  Consequa.  3  Wash.  C. 
C.  184.  Fed.  Cas.  No.  5.452. 

S'lf  not.  the  deposition  is  admiss- 
ible on  the  direct  interrogatories. 
Cass  V.  Stinson,  3  Sumn.  98,  Fed.  Ca-. 
No.  5.262. 

loBell  V.  Davidson.  3  Wash.  C.  C. 
328,   Fed.  Cas.  No.  1,248. 


990 


ii: 


I'roceduie]  FORM   OF   THE    LAST    INTERROGATORY.  §   1051 

cross-interrogatories  are  answered  at  different  times;  n  or  that  a  material 
part  of  the  evidence  is  elicited  in  the  answer  to  the  general  interrogatory.ii 
It  has  been  held  that  application  for  commission  to  take  testimony  abroad 
is  not  grantable  as  of  course,  but  only  in  the  court's  discretion  upon  a 
showing  of  the  materiality  of  the  evidence  to  be  adduced ;i3  although  this 
seems  at  variance  with  the  established  principle  that  a  party's  latitude  in 
the  taking  of  testimony  is  not  to  be  restricted  by  any  determination  of 
the  court  in  advance  as  to  what  is  relevant. i* 

§  1050.  —  naming  of  the  commissioners. 

In  all  cases  the  commissioner  or  commissioners  may  be  named  b}' 
the  court  or  by  a  judge  thereof;  and  the  presiding  judge  of  the 
coui't  exercising  jurisdiction  may,  either  in  term  time  or  in  vacation, 
vest  in  the  clerk  of  the  court  general  power  to  name  commissioners 
to  take  testimony. 

Part  of  67th  equity  rule  as  amended  December  term,  1854,  and  May 
3.  ]8<)2. 

The  proviso  enabling  a  judge  to  delegate  the  power  of  naming  commis- 
sioners, to  the  clerk  was  added  by  amendment  at  the  December  term,  1854; 
and  on  ]May  3,  1892,  the  paragraph  was  redrafted  as  given  abovs,  bv  em- 
bodying the  proviso  and  the  original  statement  in  one  sentence.i^  The  rules 
of  1822  provided  that  "Commissions  to  take  depositions  may  be  executed 
by  any  person  qualified  to  take  testimony  according  to  the  laws  of  the 
State,  or  by  any  person  or  persons,  not  exceeding  three,  appointed  or  named 
in  the  commission  by  order  of  the  court,  or  by  any  judge  thereof  in 
vacation."!  8  in  many  districts  the  authority  above  given  is  exercised  by 
a  standing  rule  empowering  the  clerk  to  name  commissioners. 

§  1051.  —  form  of  the  last  interrogatory. 

The  last  interrogatory  in  the  written  interrogatories  to  take  testi- 
mony now  commonly  in  use  shall  in  the  future  be  altered,  and 
stated  in  substance  thus :  "Do  you  know,  or  can  you  set  forth,  any 
other  matter  or  thing  which  may  be  a  benefit  or  advantage  to  the 
parties  at  issue  in  this  cause,  or  either  of  them,  or  that  may  be  ma- 
terial to  the  subject  of  this  your  examination,  or  the  matters  in 
question  in  this  cause?  If  yea,  set  forth  the  same  fully  and  at  large 
in  your  answer." 

71st  equity  rule,  promulgated  March,  1842. 

iiGilpins  V.  Consequa.  3  Wash.  C.  i^See  United  States  v.  American  B. 
C.  184,  Fed.  Cas.  No.  5.452.  T.  Co.  .?9  Fed.  230;   Fayerweather  v. 

]2Rhoadps  V.  Selin.  4  V.'ash.  C.  C.  Ritdi.  89  Fed.  529:  Parisian  C.  Co. 
715.   Fed.  Cas.  No.   11.740.  v.  Escliwege.  92  Fed.  721. 

isUnited   States  v.  Parrott,   1   '^\c-        iTSee  139  V.  S.  707. 
All.   447,   Fed.   Cas.  No.  15,999.  isRule  26,  see  7  AMieat.  VT,  et  seq. 

5   L.   ed.   377. 
991 


§   1052 


EQUITY     PROCEDURE. 


[Code  Fed. 


In  answer  to  this  question,  any  further  knowledge  witness  may  have 
material  to  the  cause  is  admissible.  If  there  is  no  answer  whatever  to  this 
interrogatory,  the  deposition  is  fatally  defective. 

§  1052.     Taking  testimony   by   deposition  under  statutory  pro- 
visions. 

Te.stiniony  may  also  be  taken  in  the  cause,  after  it  is  at  issue, 
by  deposition,  according  to  the  act  of  Congress.  But  in  such  case, 
if  no  notice  is  given  to  the  adverse  party  of  the  time  and  place  of 
taking  the  deposition,  he  shall,  upon  motion  and  affidavit  of  the  fact, 
be  entitled  to  a  cross  examination  of  the  witness,  either  under  a 
commission  or  by  a  new  deposition  taken  under  the  acts  of  Congress, 
if  a  court  or  a  judge  thereof  shall,  under  all  the  circumstances,  deem 
it  reasonable. 

68th  equity  rule,  promulgated  March,  1842. 

The  rules  of  1822,  provided  that  "Testimony  may  be  taken  according  to 
the  acts  of  Congress,  or  under  a  commission."!  There  are  a  number  of 
statutory  provisions  respecting  the  taking  of  depositions,  which  are  given 
elsewhere. 2  It  has  been  said  that  this  rule  permitting  deposition  only 
after  a  cause  is  at  issue,  in  effect  modifies  R.  S.  §  803,3  which  permits  de- 
position in  any  cause  "depending  in  a  district  or  circuit  court"  and  permits 
a  proceeding  under  R.  S.  §  863  only  if  the  cause  is  at  issue  as  well  as 
••'depending."^  This  reasoning  seems  unsatisfactory,  since  courts  are  on 
principle,  powerless  to  modify  statutes  by  rule,  and  R.  S.  §  862  expressly 
declares  the  mode  of  proof  in  equity  to  be  according  to  the  rules  "except  as 
herein  specially  provided.''^ 

§  1053.     Taking  of  testimony  de  bene  esse. 

After  any  bill  filed  and  before  the  defendant  hath  answered  the 
same,  upon  affidavit  made  that  any  of  the  plaintiff's  witnesses  are 
aged  and  infirm,  or  going  out  of  the  country,  or  that  any  one  of  them 
is  a  single  witness  to  a  material  fact,  the  clerk  of  the  court  shall,  as 
of  course,  upon  the  application  of  the  plaintiff,  issue  a  commission 
to  such  commissioner  or  commissioners,  as  the  judge  of  the  court 
may  direct,  to  take  the  examination  of  such  witness  or  witnesses  de 
bene  esse,  upon  giving  due  notice  to  the  adverse  party  of  the  time 
and  y)lace  of  taking  his  testimony. 

70th  equit}'  rule,  promulgated  March,  1842. 


iRule  25.  see  7  Wheat.  VI.  et  seq. 
5  L.  ed.   370. 

2Ree  post.  8  1,761,  et  seq.  See  Bis- 
chnffschoim  v.  Baltzer,  10  Fed.  3, 
■20  Blatchf.  229. 


sPost,   §   1,761. 

4  Stevens  v.  Missouri  K.  &  T.   Ry. 
104   Fed.   9.34. 

5  See  ante,   §   1036. 


992 


Procedure]  TAKING  OF  TESTIMONY.  §   105.1 

The  provision  of  the  rules  of  1822  was  very  similar  to  the  above. 7  Con- 
gress has  also  made  provision  for  the  taking  of  testimony  de  bene  esse.s 
A  party  may  not  have  his  own  testimony  taken  under  this  rule.9 

§  1054.     Taking  testimony  in  open  court  at  hearing. 

Upon  due  notice  given,  as  pre.scribed  by  previous  order,  the  court 
may  at  its  discretion  permit  the  whole  or  any  specific  part  of  the  evi- 
dence to  be  adduced  orally  in  open  court,  on  final  hearing. 
Amendment  of  67th  equity  rule,  promulgated  May  15,  1893.12 

The  promulgation  of  this  amendment  set  at  rest  whatever  doubt  may 
have  existed  after  the  adoption  of  the  Revised  Statutes, 1 3  as  to  die  pro- 
priety of  oral  examination  of  witnesses  in  open  court  in  equity  cases. i  ♦  The 
court  is  not,  however,  required  to  permit  oral  examination; i5  and  the 
general  practice  is  not  to  take  evidence  orallj^  in  open  court. is  To  be 
available  on  appeal,  testimony  taken  in  open  court  must  be  reduced  to 
writing  and  incorporated  in  the  record,  and  this  includes  testimony  that 
has  been  ruled  out. it  An  order  to  take  testimony  at  the  hearing  must  be 
obtained  upon  notice  and  not  ex  parte.is  Such  order  is  held  not  in  conflict 
with  a  subsequent  order  for  taking  testimony  by  deposition. 1 9 

§  1055.     Testimony  to  be  taken  within  three  months. 

Three  months  and  no  more  shall  be  allowed  for  the  taking  of  testi- 
mony after  the  cause  is  at  issue,  unless  the  court  or  a  judge  thereof 
shall,  upon  special  cause  shown  by  either  party,  enlarge  the  time ; 
and  no  testimony  taken  after  such  period  shall  be  allowed  to  be 
read  in  evidence  at  the  hearing. 

Part  of  69th  equity  rule,  promulgated  March,  1842. 

The  rules  of  1822  allowed  six  months  after  answer  and  replication,  lor 

7See  Rule  24,  7  Wheat.  6,  et  seq.,  rule  78    (post,   §   10.57)    also  infcren- 

5  L.  ed.  376.  tially  recognizes   the   practice. 

sSee   post   §    1.761.  isBlease  v.  Garlington.  92  U.  S.  1. 

sEslava    v.    IMazanges,    1     Woods,  23  L.  ed.  523. 
624,  Fed.  Cas.  No.  4,527.  isRauroad  Co.  v.  Dn-w.  3  Woods. 

12149  U.    S.   793.  692,  Fed.  Cas.  No.  17.434. 

i3See  ante,  §  1036  [a].    The  revised        it  Southern  B.  &  L.  Assn.  v.  Carey, 

statutes  omitted  earlv  enactments  on  117  Fed.  334;  In  re  De  Oottardi.  114 

the  subject.  '  Fed.  342;  In  re  Lip.=;ct.  119  Fed.  3S0; 

KPrior  to  the  revised  statutes  the  Massenberg  v.  Dennison.  107  Fi^l.  21, 
right  was  settled:  Sickles  v.  Glou-  46  C.  C.  A.  120:  MoWilliams  v.  Conn, 
cester  Co.  3  Wall.  .Ir.  186.  Fed.  Cas.  W.  Co.  119  Fed.  .509:  Blease  v.  Car- 
No.  12.840:  Van  Honk  v.  Poii'lle»>n,  lington,  92  U.  S.  I,  23  L.  ed.  52,3. 
2  Rlatchf.  85.  Fed.  Cas.  No.  16,852;  i^Mears  v.  i.ockhart.  94  Fed.  274. 
so-    F.le-a.se    v.    (Darlington,    92    I  .    S.  3ti  C.  C .  A.  2.39. 

1.   23    L.    ed.    .523:    In    re   Clarke.    9        laMagone    v.    Colorado,    etc.    Min. 

Blatchf.    372.    Fed.    Cas.    No.    2,801 ;  Co.  135  Fed.  846. 

.     Fed.  Proc— 63.  993 


§   1056 


EQUITY   PROCEDURE— (Continued). 


[Code   Fed. 


tiie  taking  of  the  depositions. 3  Where  either  party  has  elected  to  have  the 
testimony  taken  orally*  there  is  a  further  right  to  move  the  court  to  as- 
sign a  time  for  taking  plaintifl's  proof,  and  a  time  for  defendant's  defense 
thereafter  and  finally  for  taking  plaintilT's  reply. »  If  the  court  does  not 
direct  proofs  to  be  taken  in  that  mode,  then  each  party  proceeds  independ- 
ently to  take  his  proofs  and  has  the  full  period  of  three  months  in  which 
to  complete  it. 6  The  limitation  of  three  months  applies  both  to  defendant 
and  plaintiff.'  It  will  be  enforced  unless  the  parties,  otherwise  agree,  or 
the  court  grants  an  extension. «  A  cause  will  not  be  deemed  at  issue  within 
this  rule  until  at  issue  as  to  all  defendants,  or  else  confessed  as  to  those 
not  at  issue.9  But  a  defendant  as  to  whom  the  cause  is  at  issue  has  a 
right  to  proceed  to  take  testimony  and  if  plaintiff  wishes  to  wait  until  he  is 
at  issue  with  all,  it  is  better  practice  to  get  an  order  enlarging  his  time.io 
The  granting  of  further  time  for  taking  proofs  is  discretionary  and  its 
refusal  is  not  reversible  error  unless  a  flagrant  i)reaeh  of  discretion. n  Be- 
lated proofs  may  be  filed  nunc  pro  tunc  in  the  court's  discretion,!  2  or 
stricken  out. is  An  applicant  for  further  time  should  state  the  names  of 
proposed  witnesses  and  the  evidence  desired  to  be  taken,  with  the  reasons 
for  the  delay  in  taking  the  proofs. i*  Depositions  taken  after  the  time  has 
expired  cannot  be  read  in  evidence  where  timely  objection  is  made. is  A  plea 
at  issue  under  replication  will  be  overruled  where  evidence  is  not  taken  in 
its  support  within  the  allotted  three  months.ie  So  if  no  evidence  i.i  taken 
in  season  under  an  answer  filed  with  a  demurrer,  decree  may  go  for  plaintiff, 
on  the  overruling  of  the  demurrer.i'?  This  rule  does  not  apply  to  taking 
testimony  on  reference  to  a  master.is  A  party  should  move  to  suppress 
lielated  proofs  or  they  may  be  received. 1 9  An  order  enlarging  the  time 
should  be  sought  upon  notice  to  the  opposite  party.2  0 

§  1056.     Publication  of  the  testimony. 

Immediatel}'  upon  the  return  of  the  commissions  and  depositions 
containing  the  testimony  into  the  clerk's  office,  publication  thereof 
may  be  ordered  in  the  clerk's  office,  by  any  judge  of  the  court  upon 


3  See  Rule  25,  7  Wlieat.  VI.  et  seq. 
5  L.  ed.  376. 

4Ante,  §  1037. 

5 Ante.  §  1046. 

eingle  v.  Jones,  9  Wall.  486,  in  L. 
ed.  621. 

vingle  v.  Jones.  9  Wall.  486,  19 
L.  ed.  621. 

sErown    v.   Worst er,    113   Fed.   20. 

sGilbert  v.  Van  Arman,  1  Flipp. 
421,  Fed.  Cas.  No.  6,414. 

lOColeman  v.  Martin,  6  Blatchf. 
2i91.  Fed.  Cas.  No.  2.fl8fi. 

11  Ingle  V.  Jones,  9  Wall,  486.  19  L. 
ed.  G21 :  see  Wooster  v.  Howe  S.  !M. 
Co.  10  F<d.  06G;   Coon  v.  Abbott,  37 


Fed.  98:    Allington  etc.  Co.  v.  Globe 
Co.  73  Fed.  394" 

i2Fischer  v.  Hayes,   6  Fed.  76,   19 
Blatchf.  26. 

isWenham  v.  Switzer,  48  Fed.  612. 

i4Streal   v.   Steinam.   38    Fed.  548. 

isWestern  E.  Co  v.  Capital  T.  Co. 
86  Fed.  769. 

16  Sharon   v. 
Sawy.  394. 

1  'Orendorf  v. 

IS  Coosa  w   M. 
Co.  67  Fed.  31. 

miatthews 


Hill,    22    Fed.    28,    10 


Budlong,  12  Fed. 
Co.   v.   Farmers' 


19 


Spangenberg, 
Fed.  823,  20  Blatchf.  482. 

20Hunt  V.  Oliver.  3  Chi.  L.  N.  123, 
Fed.  Cas.  No.  6,894. 


994 


I 


I'roceduie]  TAKING    OF    TESTIMONY.  §   1057 

due  notice  to  the  parties,  or  it  may  be  enlarged,  as  he  may  deem  rea- 
sonable imder  all  the  circumstances;  but,  by  consent  of  the  parties 
publication  of  the  testimony  may  at  any  time  pass  in  the  clerk's  of- 
fice, such  consent  being  in  writing,  and  a  copy  thereof  entered  in  the 
order  books  or  indorsed  upon  the  deposition  or  testimony. 
Part  of  the  69th  equity  rule,  promulgated  March,  1842. 

The  passing  of  publication  is  now  of  very  much  less  importance  than 
formerlj'.  When  the  proofs  taken  were  unknown  to  counsel  until  publi- 
cation,3  there  were  strict  rules  forbidding  the  taking  of  any  further- 
proof,  upon  the  assumption  that  such  proofs  would  reflect  the  temptatioi! 
thereupon  arising,  to  manufacture  evidence  to  meet  that  already  in.*  The 
rule  suflfered  certain  exceptions  in  the  case  of  newly  discovered  evidence, 
evidence  attacking  the  credibility  of  witnesses,  and  other  belated  evidence 
which  might  safely  be  assumed  free  from  the  suspicion  of  perjury  and 
manufacture. 5  ]\loreover  exhibits  might  still  be  proved  after  publication 
r.nd  even  at  the  hearing.s  Under  this  rule  publication  has  been  ordered  of 
plaintiff's  testimony  taken  on  commission,  in  advance  of  the  taking  of 
any  testimony  by  defendant. 7 

§  1057.  Summoning  and  compensation  of  witnesses — refusal  to 
appear  or  testify. 
Witnesses  who  live  within  the  district  may,  upon  due  notice  to 
the  opposite  party,  be  summoned  to  appear  before  the  commissioner 
appointed  to  take  testimony,  or  before  a  ma.ster  or  examiner  ap- 
pointed in  any  cause,  by  subpoena  in  the  usual  form,  which  may  be 
issued  by  the  clerk  in  blank,  and  filled  itp  by  the  party  praying  the 
same,  or  by  the  commissioner,  master,  or  examiner,  requiring  the 
attendance  of  the  witnesses  at  the  time  and  place  specified,  who 
shall  be  allowed  for  attendance  the  same  compensation  as  for  at- 
tendance in  court:  and  if  any  witness  shall  refuse  to  appear  or  to 
give  evidence,  it  shall  be  deemed  a  contempt  of  the  court,  which, 
being  certified  to  the  clerk's  oflBce  by  the  commissioner,  master  or 
examiner,  an  attachment  may  issue  thereupon  by  order  of  the  court 
or  of  any  judge  thereof,  in  the  same  manner  as  if  the  contempt  were 
for  not  attending,  or  for  refusing  to  give  testimony  in  the  court. 
But  nothing  herein  contained  shall  prevent  the  examination  of  wit- 

3Se€     ante.     §     I036[bl ;    Bischoff-  sSee  Wood  v.  iMann,  2  Sumn.  316, 

cheim     v.    P.altzer.     10     Fed.     5,    20  Fed.  Ca^.   No.   1 7.033 :    Hass  v.   Stin- 

Blatchf.  220.  son.  2  Sumn.  60.5.  Fed.  Cas.  Ko.  ,5.261. 

4Sep  Wood  V.  Mann.  2  Sumn.  316,  sSee  De  Butts  v.  Bacon.  1  Cranch 

Fed.    Cas.    No.    17.953.   where   Judge  C.  C.  569.  Fed  Cas.  Xo.  3.717. 

Story  learnedly  discusses  the  law.  'Eillert  v  Craps,  44  Fed.  792. 

99.5 


§    1057 


EQUI'JY   PROCEDURE — (Continued). 


[Code  Fed. 


nes.scs  viva  voce  when  produced  in  open  court,  if  the  court  shall, 
in  its  discretion,  deem  it  advisable. 

78th  equity  rule,  promulgated  March,  1842. 

The  above  rule  is  identical  with  rule  28  of  the  equity  rules  of  1822,  except 
that  earlier  rule  uses  "commissioners"  throughout— not  "commissioner;" 
and  omits  the  final  clause  '"if  the  court  shall,  in  its  discretion,  deem  it  ad- 
visable." The  examination  of  witnesses  in  open  court  is  now  governed  by 
an  amendment  of  the  67th  rule.n  The  statutory  provisions  regarding  com- 
pensation of  witnesses,! 2  and  their  summoning  and  attendance,  appear 
elsewhere.13  Refusal  to  produce  books  or  papers  on  a  master's  order  is  a 
contempt  and  punishable  as  such.K  A  witness  is  not  to  be  excused  from 
answering  because  evidence  seems  immaterial,  since  a  party  is  entitled  to 
'lavp  all  evidence  in  the  record  that  the  appellate  court  may  pass  upon. is 
If  it  seems  probable  testimony  may  be  relevant,  a  witness  will  be  compelled 
a  answer;  16  and  the  objection  made  will  be  considered  at  the  hearing. 17 
If  a  party  after  examination  of  a  witness  and  adjournment  for  the  day, 
z^efuses  to  produce  him  for  cross-examination,  his  testimony  will  be  sup- 
pressed.! 8  A  witness  may  be  punished  for  contempt  under  this  rule  where 
the  subpoena  is  issued  to  compel  attendance  before  a  master  or  an  exami- 
neri9  acting  in  the  district  under  authoority  from  the  court  of  another  dis- 
trict. So  also  he  reay  be  compelled  by  the  court  of  the  district  to  produce 
books  or  papers,  before  the  special  examiner  appointed  by  a  court  else- 
where. 20 


iiAnte,  §  1054. 

12 Ante,  §  725,  et  seq. 

i3Post.  §  1742,  et  seq. 

KErie  Ry.  v.  Heath,  8  Blatchf.  413, 
Fed.  Cas.  No.  4,513. 

15 Parisian  C.  Co.  v.  Eschwege,  92 
Fed.  721. 

ifiRobinson  v.  Philadelphia,  etc.  R. 
R.  28  Fed.  340. 

i^Maxim,  etc.  Co.  v.  Colts,  etc.  Co. 


103  Fed.  39;   Brown  v.  Worster,  113 
Fed.  20. 

isShapleigh    v.    Chester,    etc.    Co. 

47  Fed.  848. 

19 In  re  Steward,  29  Fed.  813; 
White  V.  Toledo,  etc.  R.  R.  79  Fed. 
133,  24  C.  C.  A.  467;  In  re  Spofford, 
62  Fed.  443. 

2  O.Johnson,  etc.  Co.  v.  North  B.  Co. 

48  Fed.  191. 


998 


CHAPTEE  30. 

EQUITY   PROCEDURE    (CONTIXL' ED)— HEARING   AND    REFERENCE 

TO   MASTERS. 

Hearing  in  equity — references — jury. 

Power  to  refer  to  a  master  and  rcatters  referred. 

Appointment  and  compensation  of  masters. 

Time  when  matter  referred  must  be  brought  on  before  master. 

Time  and  place  for  hearing — adjournments — speeding  the  hearing. 

blaster  to  regulate  proceedings  before  him.  examine  witnesses, 
procure  evidence,  etc. 

Mode  of  producing  accounts — examination  of  accounting  party. 

Affidavits,  depositions  and  documents  already  in  evidence  may  be 
used. 

Creditors  and  claimants  may  be  examined — evidence  reduced  to 
writing. 

Reference  to  master  in  decree  for  accounting  of  decedent's  per- 
sonalty. 

Master's  report. 

Report  should  refer  to,  and  not  recite  affidavits,  depositions,  etc. 

Filing  of  report,  confirmation  and  exceptions  thereto. 

Costs  imposed  upon  overruling  and  allowing  of  exceptions. 

§  1067.     Hearing  in  equity — references — jury. 

After  a  cause  has  pa.ssed  the  preliminary  sta,i;:cs  in  which  hearings 
are  had  upon  the  pleadings,  as,  upon  demurrer,  and  plea,^  or  bill 
and  answer ,2  or  upon  exceptions  to  the  answer,-^  or  upon  a  defect  of 
parties  alleged  in  the  answer  ;•*  and  after  the  time  for  taking  testi- 
mony^ has  expired,  either  party  may  then  set  the  cause  for  hearing 
before  the  court.  The  general  equity  rules  contain  no  provision  as 
to  setting  a  cause  for  hearing  or  as  to  the  procedure  at  the  hearing, 
except  to  permit  testimony  then  to  be  taken  orally  in  the  discretion 
of  the  court.^  In  many  districts  there  are  circuit  court  rules  pre- 
scribing the  procedure  with  more  or  less  minuteness.  But  in  the 
absence  of  local  rule,  the  practice  is,  in  general,  for  the  solicitors 

iSee  Ante.  §  !)81,  <Ante.  §  102.5. 

«Ante.  g  1005.  SAnte,  §S  1046.  10.55. 

3Ante,  §  1002.  eAnte,  §  1054. 

997 


§ 

1067. 

§ 

1068. 

§ 

1069. 

§ 

1070. 

§ 

1071. 

§ 

1072 

g 

1073. 

§ 

1074 

§ 

1075 

§ 

1076 

§ 

1077 

§ 

1078 

§ 

1079 

§ 

1080 

§   lUO;    [a]  EQUITY   PROCEDURE— (Continued).  [Code  Fed, 

for  plaintiff  and  defendant  in  turn^  to  state  the  substance  of  their 
respective  pleadings  and  proof  and  argue  the  points  of  law  thereon, 
leaving  the  court  to  formulate  its  decision  from  an  examination 
of  the  proofs  in  detail,  and  of  points  or  briefs,  if  any,  submitted 
by  the  solicitors  in  typewritten  or  printed  formJ^^  It  niay  be 
necessary  before  final  decree  can  be  made  that  reference  to  a  iuaster 
be  ordered  to  state  an  account  or  for  other  purpose,  and  in  that 
event  the  decree  at  the  first  hearing  is  merely  interlocutory."  So  the 
court  may  desire  the  verdict  of  a  jury  upon  some  issue  of  fact  raised 
and  thereupon  empanel  a  jury  or  send  the  issue  to  the  law  side  of 
the  court J^^ 
.,        Author's  section. 

[aj     Proceedings  at  hearing. 

A  party  is  bound  at  the  argument  by  the  allegation  of  a  particular  fact 
in  his  pleading.  10  Ordinarily  plaintiff'  has  the  right  to  open  and  close. n 
The  granting  of  continuance  is  a  matter  of  sound  discretion,  and  may  be 
denied  if  a  party  had  ample  notice  and  opportunity  to  prepare.12 

[b]     Verdict  of  jury  in  equity  causes. 

In  equity  the  court  has  power  to  decide  both  law  and  fact.  The  sub- 
mission of  an  issue  of  fact  to  a  jury  is  entirely  discretionary, 1 3  and  usually 
will  not  be  ordered  unless  the  evidence  is  so  conflicting  or  evenly  balanced 
that  the  court  would  not  disturb  a  verdict  either  way.i^  So  the  jury's 
verdict  when  rendered,  is  nit-rely  advisory  and  not  binding  upon  the  court. is 
It  may  be  disregarded  entirely,  and  decree  at  variance  therewith  may  be 
entered  without  formally  setting  it  aside. is  It  may  be  adopted  in  part;i7 
and  if  satisfactory  is  to  be  treated  as  if  made  by  the  court  and,  if  general, 
as  covering  all  the  issues. is  Decree  may  be  founded  thereon.i9  Xew  trial 
may  be  directed  after  verdict  though  errors  at  the  trial  will  not  be  ground 

7See  post,  §  1090.  v.   Starke.   101   U.   S.   2.52.   2.5    L.   ed. 

loPrevost  v.  Gratz,  3  Wash.  C.  C.  826:  Quinbv  v.  Conlan.  104  V.  R.  424, 

434.  Fed.  Cas.  No.  11.407.  2G   L.   ed.  SfiD ;    Perego  v.   Dodge,  1C3 

11  Armstrong     v.     United     States,  U.  S.  165.  41    L.  ed.  113.  16  Sup.  Ct. 

Gilp.  399.  Fed.  Cas.  No.  548.  Rep.  971. 

i2Greigg  v.  Reade,  Crabbe  04,  Fed.         leldaho.  etc.  Co.  v.  Bradltiuv.  132 

Cas.  No.  .5.804.  U.  S.  516,  33  L.  ed.  433.  10  Sup.  Ct. 

isGarse!    v.    Boall,    92    U.    S.    695,  Rep.  177;    Kobn  v.  McXulta.   147  V. 

23  L.  ed.  686;  Wilson  v.  Riddle,  123  S.  240,  37  L.  ed.  1.50.  13  Sup.  Ct.  Rep. 

U.   S.  615.  31  L.  ed.  280.  8  Sup.   Ct.  298. 
Rep.  255.  i7Kohn  v.  :\bXiilta.  147  U.  S.  240. 

i-tHarding  v.  Handy,  11  Wheat  121,  37  L.  ed.  151),  13  Sup.  Ct.  Rep.  298. 
6  L.  ed.  429";  Earle  v.  McCartnev.  109         islTamnier  v.   Garfield   M.  Co.   130 

Fed.  13.  '  U.  S.  296,  32  L.  ed.  904.  9  Suo.  Ct. 

1 -^Harding  v.  Handy,  11  Wheat  121.  Rep.  548. 
G  L.  ed.  429;  Front  v.  Robv,  15  Wall.         iflGarsed  v.  Beall.  92  U.  S.  69o,  23 

475,  21   L.  ed.  58;   Little  V.  Alexan-  L.  ed.  686. 
der,  21  Wall  503.  22  L.  ed.  625 ;  Watt 

998 


rrocedure]  REFERENCE  TO  A  MASTER.  §    lOOb 

■unless  wrongful  verdict  resulted.^o  On  motion  for  new  trial  tlie  applicant 
must  provide  notes  of  the  proceedings  and  evidence  so  that  they  may  be 
made  part  of  the  record  on  appeal. i  Strictly  the  practice  requires  that  the 
■chancellor  order  a  jury  to  be  empanelled  on  the  law  side  of  the  court  and 
the  verdict  to  be  certified  by  the  clerk  to  the  equity  side,  but  less  formal 
mode  is  allowable. 2 

§  1088.     Power  to  refer  to  a  master  and  matters  referred. 

Courts  of  0(|iiity  have  powei-  to  refer  to  a  master  for  investiga- 
tion and  report,  the  taking  of  accounts,  tlie  making  of  computations 
or  tlie  investigation  of  the  facts  in  contempt  proceedings.  So  they 
may  direct  a  master  in  cliancery  to  inquire  into  the  appointment 
of  a  receiver,  or  trustee,  into  the  issue  of  an  injunction,  whether  a 
suit  is  for  an  infants  benefit,  or  a  consent  decree  would  be  beneficial 
to  an  infant-  Exceptions  to  an  answer.^  and  exceptions  to  any 
pleading  for  scandal  or  impertinence  may  be  referred  to  a  master 
for  investigation  and  report.  Reference  to  a  master  is  often  proper 
after  the  taking  of  a  bill  pro  confesso.  The  power  is  a  very  broad 
one  and  extends  in  general  to  the  investigation  of  any  question  or 
issue  of  fact  which  courts  of  equity  may  be  called  upon  to  make. 
Xor  is  it  uncommon  for  parties  to  agree  that  issues  of  law  as  well  as 
of  fact  be  submitted  to  a  master. 
Author's  section. 

Federal  courts  of  equity  have  inherent  power  to  order  reference  to  a 
master; 6  but  it  is  improper  to  refer  a  cause  in  advance  of  decree  settling 
the  issues  raised  by  the  pleadings.'  It  is  improper  to  refer  a  bill  for  ac- 
counting until  after  plaintiff  has  established  his  right  thereto. 8  It  is  dis- 
cretionary with  the  court  to  refer  the  ascertainment  of  an  amount  due,9  or 
to  refer  a  bill  in  intervention.! 0  If  the  court  can  ascertain  the  facts  from 
the  evidence,  it  will  not  order  a  reference:ii  unless  both  parties  desire  it.i- 
Where  the  litigation  has  already  been  very  long  further  reference  should, 
if  possible  be  avoided. is     Counsel  may  sometimes  stipulate  to  dispense  with 

20Watt  v.    Starke.    101    U.    S.  251.  ■"Tohinibian    Co.  v.  Mercantile   Co. 

■2-1  L.  ed.  <S2G.  113  Fed.  23,  51  C.  C.  A.  33. 

nVatt  V.  Starke.  101  U.  S.  251.  25  sBrown  v.  Orove,  80  Fed.  564.  2o 

L.   ed.   826:    Clvde  v.   Richmond,  etc.  C.  C.  A.  644. 

R.  R.  72  Fed.  121.  18  C.  C.  A.  467.  lOCentrnlT.  Co.  v.  "Madden.  70  Fd. 

2Wilson  V.  Riddle,   123  U.   S.  615,  451.  17  C.  C.   A.  236. 

31  L.  ed.  280.  8  Sup.  Ct.  Rep.  255.  11  Field  v.  Holland.  6  Cranoh.  S.  •; 

3 Ante,  §  1101.  T..   ed.     136:     Lawrence     v.    Dann.     ' 

6Thompson  v.  Smith.  2  Bond.  320.  Cliff.   6.   Fed.   Pas.    Xo.   S.1.36. 

Fed.  Cas.  No.  13,076.  i2.Te\vett  v.  Cunard.  3  W.  &  M.  27" 

7Ward    V.    Paducah.   etc.   R.   R.    4  Fed.  Cas.  Xo.  7,310. 

Fed.    862:    but    see    Briggs   v.    Xeul.  isCampbell  v.  New  York.  81   Fe!. 

120  Fed.  229.  56  C.  C.  A.  572.  182. 

099 


^    1009  EQUITY    rUOCEDURE— (Continued).  [Code  Fed. 

a  reference;  14  or  agree  upon  reference  as  to  both  fact  and  la>v.i-'^'  Hut  a 
reference  of  the  entire  decision  of  a  case  is  improper  except  by  the  consent 
of  both  parties.16  A  court  may  in  its  discretion  itself  state  an  account 
after  examining  the  testimony  taken  by  the  master.i"  Matters  of  -tompu- 
tation  and  account  are  a  common  subject  for  reference.is  Boundaries  may 
be  ascertained  by  reference ;  1 9  or  the  propriety  of  a  receiver's  petition  to 
reduce  wages; 20  or  the  amount  of  a  receiver's  compensation.!  After  order 
for  decree  pro  confesso  the  ascertainment  of  damages  suffered  by  phiintiff 
or  the  computation  of  an  account,  is  often  a  proper  preliminary  to  a  de- 
cree.2  Claims  of  all  sorts  against  a  fund  in  court  may  be  ordered  present- 
ed before  the  master. 3  Reference  is  proper  where  parties  are  unable  to 
settle  upon  interrogatories  and  some  are  questioned  as  irrelevant.'*  It  is 
often  proper  where  a  receiver  is  sued  upon  a  claim  for  damages ;«  or  to 
ascertain  the  proper  compensation  of  a  receiver's  counsel. 6  A  plea  of  res 
judicata  will  be  referred  unless  it  clearly  appears  that  the  causes  of  action 
were  not  the  same.'? 

§  1069.     Appointment  and  compensation  of  masters. 

The  circuit  courts  may  appoint  standing  masters  in  chancery  in 
their  respective  districts  (a  majority  of  all  the  judges  thereof, 
including  the  justice  of  the  Supreme  court,  the  circuit  judges,  and 
the  district  judge  for  the  district  concurring  in  the  appointment) 
and  they  may  also  appoint  a  master  pro  hoc  vice  in  any  particular 
case.^^^  The  compensation  to  be  allowed  to  every  master  in  chan- 
cery for  his  services  in  any  particular  case  shall  be  fixed  by  the 
circuit  court  in  its  discretion,  having  regard  to  all  the  circumstances 

i4Dumont  v.  Fry,  13  Fed.  423.  20United  States  T.  Co.  v.  Omaha, 

isSee  Kimberlev  v.   Arms,   12f)  U.    etc.  Ry.  63  Fed.  737. 
S.  512,  32  L.  ed.  764,  9  Sup.  Ct.  Rep.        iGasquet  v.  Crescent  C.  Co.  49  Fed. 
355:    United    States    T.    Co.    v.    Mer-    493. 

pantile  T.  Co.  88  Fed.  140,  31  C.  C.  2 See  Reedv  v.  Western  E.  Co.  83 
A.  427;  Third  Nat.  Bank  v.  National  Fed.  709,  28"  C.  C.  A.  27;  Thompson 
Bank,  86  Fed.  852,  30  C.  C.  A.  436;  v.  Wooster,  114  U.  S.  114,  29  L.  ed. 
Farrar  v.  Bemheim,  75  Fed.  136,  21  105,  5  Sup.  Ct.  Rep.  788;  Pendleton 
C.  C.  A.  264.  V.   Evans,   4   Wash.    C.   C.   391,   Fed. 

leKimberleyv.  Arms,  129  U.  S.  524,    Cas  No.  10,921. 
32  L.  ed.  764,*  9  Sup.  Ct.  Rep.  355.  3 See   Fidelity,   etc.   Co.  v.   Shenan- 

iTWheeler  v.  Billings.  72  Fed.  301,  doah  Co.  42  Fed.  372;  Central  T.  Co. 
1 8  C.  C.  A.  573.  V.  Texas  Ry.  32  Fed.  448  ;   post,  §— . 

i8St.  Colomhe  v.  United  States,  7  ^See  Zunkel  v.  Litchfield,  21  Fed. 
Pet.  625,  8  L.  ed.  807:   Hatch  v.  In-    196. 

dianapolis.  etc.  R.  R.  9  Fed.  856:  11        sSee    Central   T.    Co.    v.   Marietta, 
Biss.  138:   see  Wann  v.  Coe,  31    Fed.    etc.  Ry.  75  Fed.  41. 
369;    Harding  v.    Handy,    11    Wheat.        6 Walters  v.  Western  R.  R.  69  Fed. 
126,   6   L.   ed.  427:    Burns  v.   Rosen-    706. 

stein,  135  U.  S.  455,  34  L.  ed.  193,  10  ^Park,  etc.  Co.  v.  Bruen,  133  Fed. 
Sup.  Ct.   Rep.   817.  807. 

i«See  Murphy  v.  So.  Ry.   99   Fed. 
469. 

1000 


rrocedure]   APPOIN'TMENT  AND  COMPENSATION  OF  MASTERS.    §  10G9    [b] 

thereof,  and  the  compensation  shall  be  charged  upon  and  borne 
by  such  of  the  parties  in  the  cause  as  the  court  shall  direct.  The 
master  shall  not  retain  his  report  as  security  for  his  compensation ; 
but  when  the  compensation  is  allowed  by  the  court  he  shall  be  en- 
titled to  an  attachment  for  the  amount  against  the  party  who  is  or- 
dered to  pay  the  same,  if  upon  notice  thereof  he  does  not  pay  it 
within  the  time  prescribed  by  the  court. '^''^ 
82nd  equity  rule,  as  amended  April  16,  1894. 

[a]  In  general. 

The  amendment  of  April  16,  1894,io  consisted  in  substituting  the  portion 
of  the  above  rule  embraced  within  the  parenthesis  for  the  proviso,  "both  the 
judges  concurring  in  the  appointment,"  found  in  the  rule  as  originally 
adopted  in  1842.1 1  The  rules  of  1822  contained  no  provision  respecting  the 
appointment  of  masters.  The  appointment  of  both  standing  and  special 
masters  is  discretionary. 12  Such  appointments  should  be  made  by  the 
court,  as  a  master  is  an  officer  1 3  of  the  court,  and  no  notice  thereof  need 
be  given. 14  By  an  act  of  1879  Congress  made  clerks  and  other  deputies 
ineligible  for  the  position  except  for  special  reasons  to  be  assigned  by  the 
order  of  appointment; is  and  by  act  of  1887  relatives  of  the  judge  may  not 
be  appointed  officers  of  the  court.i^  It  is  not  essential  to  the  validitj'  of 
any  standing  appointment  that  the  master  give  a  bond  or  the  appointment 
be  recorded.!'?  it  has  been  held  that  a  party  cannot  raise  the  question  of 
the  disqualification  of  an  appointee  under  the  acts  of  Congress,  by  motion 
to  set  aside  a  sale  made,  because  such  an  attack  upon  the  appointment  is 
collateral. 18  Appointment  of  a  clerk  as  special  master  is  not  reversible 
error  where  the  order  of  appointment  inadvertently  omits  to  set  forth 
the  special  reason  therefor.  19  Erroneous  statements  in  a  final  report  re- 
produced inadvertently  from  an  earlier  report  at  which  time  the  state- 
ments were  true  is  not  ground  for  removal  of  the  master  for  bad  faith  and 
malice.2o 

[b]  Compensation  and  attachment  therefor. 

A  master  must  file  his  report  whether  his  fees  are  paid  or  not,  but  at- 
taclnnent  will  issue  if  they  are  not  paid;''  and  the  issuance  of  attachment 

lOSee  152  U.  S.  709.  i^Seaman     v.     Northwestern,     etc. 

11  Pee  17  Pet.  20  L.  ed.  p.  918.  Co.    86   Fed.   493,    30   C.   C.   A.   212; 

i2Van       Hook     v.      Pendleton.      2  isSeaman     v.     Northwestern,    etc. 

Blatchf.    So,    Fed.    Cas.    No.    16,852;  Co.    86    Fed.    492,    30   C.    C.    A.    212; 

isBate  F.  Co.  v.   Gillette,  28  Fed.  Elg\itter  v.  Northwestern,  etc.  Co.  86 

673.  Fed.  500.  30  C.  C.  A.  218. 

i^Finance  Com.  v.  Warren,  82  Fed.  isBriggs  v.  Neal.  120  Fed.  224.  50 

525:    27    C.    C.    A.    472;    Seaman    v.  C.  C.  A.  572. 

Northwestern   M.   L.   I.   Co.   86   Fed.  2oMason    v.    Pewabic   M.   Co.    100 

497.  30  C.  C.  A.  212.  Fed.  340. 

15 Ante,  §  603.  4Frese   v.    Biedenfeld.    14   Blatchf. 

16 Ante,  §  443.  402,  Fed.  Cas.  No.  5,111. 

1001 


§   lOTO  EQUITY   PROCEDURE — (Continued).  [Code   Ted. 

is  not  stayed  by  proceedings  for  appeal. 5  On  adjournment  of  a  lioaring 
a  master's  fee  should  be  paid  by  the  party  asking  the  adjournment  and 
properly  should  be  paid  at  the  tinie.6  Each  party  should  pay  liis  own  costs 
in  the  lirst  instance  anl  leave  their  final  disposition  to  be  determined  in  the 
decree."  A  master's  compensation  should  be  measured  by  the  work  done, 
time  employed  and  the  responsibility  assumed,  having  also  in  view  the 
magnitude  of  the  interest  involved.^  It  should  not  be  fixed  finally  until 
.after  the  services  are  rendered;  and  an  interlocutory  order  fixing  them  at  a 
sum  per  annum  may  afterwards  be  modified. 9  Where  a  special  master's 
fees  are  allowed  and  embodied  as  costs  in  a  decree  which  is  thereafter  re- 
versed so  that  the  costs  are  imposed  upon  the  other  party,  the  master  is 
entitled  to  interest  from  date  of  the  allowance  of  his  fees.io 

§  1070.     Time  when  matter  referred  must  be  brought  on  before 
master. 

Whenever  any  reference  of  any  matter  is  made  to  a  master  to 
examine  and  report  thereon,  the  party  at  whose  instance  and  for 
\yhose  benefit  the  reference  is  made  shall  cause  the  same  to  be  pre- 
sented to  the  master  for  a  hearing  on  or  before  the  next  rule  day 
.succeeding  the  time  when  the  reference  was  made;  if  he  shall  omit 
to  do  so,  the  adverse  party  shall  be  at  liberty  forthwith  to  cause 
proceedings  to  be  had  before  the  master,  at  the  costs  of  the  party 
procuring  the  reference. 

74th  equity  rule,  promulgated  march,  1842. 

The  rules  of  1S22  merely  required  the  master  to  assign  a  day  for  hear- 
ing whenever  a  matter  was  referred. is 

§  1071.     Time   and   place  for   hearing — adjournments — speeding 

the  hearing. 

Upon  every  such  reference  it  shall  be  the  duty  of  fchc  master, 

as  soon  as  he  reasonably  can,  after  the  same  is  brought  before  him, 

to  assign  a  time  and  place  for  proceedings  in  the  same,  and  to 

sMyers  v.  Dunbar,  12  Blatchf.  380,  4,-516;  Middleton  v.  Bankers,  etc.  Co. 

Fed.   Cas.   No.  f),!)!10:    compare  Jesup  32  Fed.  524;  Finance  Comm.  v.  War- 

V.  Wabash,  etc.  R.  R.  94  Fed.  20.  ren.  82  Fed.  525.  27  C.  C.  A.  472:  see 

6Brickill  V.  New  York.  55  Fed.  56.5.  Brown   v.   King.    62    Fed.   529.    10    C. 

^United  States  P  Co.  v.  American  C.  A.  541,  refusing  further  eompensa- 

P.    C.    Co.    81    Fed.    506:    Brickill    v.  tion    to    special    master    in    railroad 

New  York,  55  Fed.  565.     But  a  party  foreclosure. 

seeking  an  accounting  will  usiially  be        sPleasants  v.  Southern  Ry.  93  Fed. 

required    to    pay    the    compensation:  93.  35  C.  C.  A.  220. 
T/rner    v.    Kayt'on,    17    Fed.    539.    21         loJesup  v.  Waba.sh,  etc.  R.  R.   94 

Blatchf.  428.  Fed.  20 

sSee   Duuirhtv  v.   West.   S  Blatchf.        isSee  Rule  29,  7  Wheat.  VI.  et  seq. 

107.  Fed.  ("ns.  No.  4,030;  Erie  Rv.  v.  5  L.  ed.  377. 
Heath,  10  Blatdif.  214,  Fed.  Cas.' No. 

1002 


Piocerlure]  REFERENCES  TO  MASTERS.  §   1072 

give  due  notice  thereof  to  each  of  the  parties  or  their  solicitors; 
and  if  either  party  shall  fail  to  appear  at  the  time  and  place  ap- 
pointed, the  master  shall  be  at  liberty  to  proceed  ex  parte,  or,  in 
his  discretion,  to  adjourn  the  examination  and  proceedings,  to  a 
future  day,  giving  notice  to  the  absent  party  or  his  solicitor  of 
such  adjournment;  and  it  shall  be  the  duty  of  the  master  to 
proceed  with  all  reasonable  diligence  in  every  such  reference,  and 
with  the  least  practicable  delay,  and  either  party  shall  be  at  lil)- 
erty  to  apply  to  the  court,  or  a  judge  thereof,  for  an  order  to  tiic 
master  to  speed  the  proceedings  and  to  make  his  report,  and  to 
certify  to  the  court  or  judge  the  reason  for  any  delay. 
75th  equity  rule,  promulgated  March,  1842. 

By  rule  29  of  the  equity  rules  of  182216  it  was  provided  that  "When  a 
matter  is  referred  to  a  master  to  examine  and  report  thereon  he  shall 
assign  a  day  and  place  therefor,  and  give  reasonable  notice  thereof  to  the 
parties,  or  to  the  attorney  or  solicitor  of  such  party  as  may  not  reside  within 
the  district,  and  if  either  party  shall  fail  to  attend  at  the  time  and  placv-. 
the  master  may  adjourn  the  examination  of  the  matter  to  some  future  day 
and  give  notice  thereof  to  the  parties,  in  which  notice  it  shall  be  expresse.l 
that  if  the  party  fail  again  to  appear,  the  master  will  proceed  ex  parte;  anl 
if  after  receiving  such  notice  the  party  shall  again  fail  to  appear,  the  mas- 
ter may  proceed  to  examine  the  matter  to  him  referred,  and  to  report  the 
same  to  the  court,  that  such  proceedings  may  be  had  thereon  as  to  the 
court  shall  seem  equitable  and  right."  The  granting  of  adjournments!" 
and  of  leave  to  reopen  the  liearing  for  further  proofs  after  it  has  been  closed 
and  the  report  prepared,  is  largely  discretionary. is 

§  1072.  Master  to  regulate  proceedings  before  him,  examine  wit- 
nesses, procure  evidence,  etc. 
The  master  shall  regulate  all  the  proceedings  in  every  hearing 
before  him,  upon  every  such  reference;  and  he  shall  liave  full  au- 
thority to  examine  the  parties  in  the  cause,  upon  oath,  touching 
all  matters  contained  in  the  reference;  and  also  to  require  the 
production  of  all  books,  papers,  writings,  vouchers,  and  other  docu- 
ments applicable  thereto;  and  also  to  examine  on  oath,  viva  voce, 
.all  witnesses  produced  by  the  parties  before  him,  and  to  order 
the  examination  of  other  witnesses  to  be  taken,  imder  a  couiiui.s- 
sion  to  be  issued  upon  his  certificate  from  the  clerk's  ofTice.  or  by 

leSee  7  Wheat.  VI.  ct  seq.  5  L.  ed.         isfentral  T.  Co.  v.  Ricliniond.  etc. 
.•^77.  R.  R.  tin   Feil.  7l)l  :   Central  T.  Co.  v. 

iT'lliird     Xat.     Bank     v.    National     Marietta,  etc.  R.  R.  75  Fed.  41. 
-Bank.  BG  Fed.  852.  30  C.  C.  A.  -ir.C. 

1003 


§   1072  EQUITY   PROCEDURE— ( Continued).  [Coae  Fed. 

deposition,  according  to  the  act  of  Congress,  or  otherwise,  as  here- 
inafter provided ;  and  also  to  direct  the  mode  in  which  the  mat- 
ters requiring  evidence  shall  be  proved  before  him;  and  generally 
to  do  all  other  acts  and  direct  all  other  inquiries  and  proceedings 
in  the  matters  before  him,  which  he  may  deem  necessary  and 
proper  to  the  justice  and  merits  thereof  and  the  rights  of  the 
parties. 

77th  equity  rule,  promulgated  March,  1842. 

The  equity  rules  of  1S22  contained  no  provision  respecting  references 
other  than  that  elsewhere  quoted, 2  but  they  were  deen:ed  to  recognize  the 
propriety  of  the  examination  of  witnesses  before  master.s  When  rule  77 
was  adopted  parties  were  not  competent  witnesses  in  their  own  behalf  and 
the  authority  "to  examine  the  parties  in  the  cause,  upon  oath"  meant 
merely  the  usual  right  to  a  discovery  of  evidence  against  them  and  not  a 
right  in  either  party  to  make  himself  a  witness  in  his  own  behalf.^  Un- 
doubtedly the  provision  no  longer  has  so  narrow  a  meaning.  This  rule  gives 
the  master  discretion  as  to  the  order  of  proof,a  the  granting  of  adjourn- 
ments,6  or  the  opening  of  the  cause  after  report  drafted,  for  further  proofs, ^ 
It  has  been  held  to  permit  him  to  require  the  production  of  correspondence 
leading  up  to  contract  on  an  accounting  in  an  infringement  suit.s  The  evi- 
dence already  taken  in  a  cause  is  properly  before  the  master; 9  including 
evidence  at  a  former  accounting.io  A  witness  whose  testimony  has  previ- 
ously been  taken  cannot  be  again  examined  before  the  master  upon  the  same 
matters,  without  special  order  of  court,  though  he  may  be  examined  upon 
collateral  or  independent  matters. n  The  master  may  use  book  entries  of 
accounts  without  vitiating  his  report  on  an  accounting,  though  the  books 
themselves  had  previously  been  ruled  out  as  not  books  of  original  entry. i2 
It  is  proper  for  him  to  refuse  newly  discovered  evidence  on  an  issue  al- 
ready adjudged  by  interlocutory  decree. 1 3  Where  evidence  offered  is  ob- 
jected to,  the  master  should  receive  it  subject  to  the  objection,  so  that  the 
court  may  thereafter  review  the  matter.i^  It  is  proper  also  to  request 
the  master  to  report  specially,  such  evidence  as  furnishes  ground  of  excep- 

2Ante,  §  1071,  note.  sGass  v.  Stinson.  2  Sum.  605.  Fed. 

3Story  v.  Livingston,   13  Pet.  368,  Cas.    No.    5,261  ;    see    rule    SO.    post, 

10  L.  ed.  200.  §   1074. 

4Foote    V.    Silsbv,    3    Blatchf.    507,         lOReed  v.  Lawrence,  29  Fed.  915. 
Fed.  Cas.  No.  4.920.  uGass  v.  Stinson,  2  Sum.  605,  Fed. 

sWooster  v.   Gumbirnner,   20    Fed.  Cas.  No.  5.  261  :  Jenkins  v.  Eldridge, 

167.  .3  Story,  299,  Fed.  Cas.  No.  7,267. 

fiThird     Nat.     Bank     v.     National        i2Robinson    v.    Alabama    INIfg.    Co. 

Bank,  86  Fed,  852,  30  C.  C.  A.  430.  89  Fed.  218. 

^Central    T.    Co.    v.    Richmond,    69         isDeitch  v.  Staub,  115  Fed.  309,  53 

Fed.  761;  Central  T.  Co.  v.  Marietta  C.  C.  A.  137. 

R.   R.   75   Fed.   41:   Piper   v.   Brown,        i^Kansas,  etc.  Co.  v.  Electric,  etc. 

Holmes,  196,  Fed.  Cas.  No.   11.181.  Ry.   108   Fed.   702. 

sGoss  Co.  V.  Scott,  119  Fed.  941. 

1004 


Procedure]  PROCEEDINGS  ON  REFERENCE.  §    1075 

tion.ia  It  is  not  a  proper  practice  to  move  the  court  to  instruct  the  mas- 
ter while  making  his  investigations,  but  a  party  aggrieved  has  his  remedy 
by  exception  to  the  report.is  But  the  fact  that  execution  of  the  master's 
orders  will  involve  considerable  expense  of  time  and  money,  may  justify 
the  hearing  of  an  application  to  modify  or  vacate  them. 1 7  The  authorities 
have  frequently  sanctioned  the  right  of  a  master  in  his  discretion  to  proceed 
beyond  the  district  to  take  testimony,! 8  and  even  abroad.i» 

§  1073.  Mode  of  producing  accounts — examination  of  account- 
ing party. 
All  parties  accounting  before  a  master  shall  bring  in  their 
respective  accounts  in  the  form  of  debtor  and  creditor ;  and  any  of 
the  other  parties  who  shall  not  be  satisfied  with  the  accounts  so 
brought  in  shall  be  at  liberty  to  examine  the  accounting  party,  %dva 
voce,  or  upon  interrogatories  in  the  master's  office,  or  by  deposition, 
as  the  master  shall  direct. 

79th  equity  rules,  promulgated  March,  1842. 

§  1074.     Affidavits,  depositions  and  documents  already  in  evidence 
may  be  used. 

All  affidavits,  depositions  and  documents  which  have  been  pre- 
viously made,  read  or  used  in  the  court,  upon  any  proceeding  in 
any  cause  or  matter,  may  be  used  before  the  master. 
80th  equity  rule,  promulgated  March,  1842. 

This  rule  means  that  testimony  in  any  cause2  may  be  brought  before  the 
examiner  without  being  retaken,  by  calling  his  attention  to  the  parts  relied 
upon,  in  making  up  the  case;  but  does  not  authorize  the  using  of  it  in 
argument  after  the  case  made,  when  the  opposite  party  no  longer  has  op- 
port\iiuty  to  answer  or  explain  it. 3 

§  1G75.     Creditors  and  claimants  may  be  examined — evidence  re- 
duced to  writing. 
The  niaslor  shall  be  at  liberty  to  examine  any  creditor  or  other 
person  coining  in  to  claim  before  him,  either  upon  written  inter- 
rogatories or  viva  voce,  or  both  modes,  as  the  nature  of  tiie  case  may 

isDonnell   v.   Columbian  Tns  Co.  2  Toledo,  etc.  R.  R.  70  Fed.  133,  24  C. 

Sumn.  :?()(;,  Fed.  Cas.  No.  3.0S7.  C.    A.    4G7:     Dowagiac    Mfg.    Co.    v. 

isLull  v.  Clark,  20  Fed.  4.54;   post.  Loehren.   143   Fed.   214. 
^  107!).    But  in  case  of  extreme  hard-        isBate,  etc.  Co.  v.  Gillette,  28  Fed. 

ship  i^  ma"  be  done:    Welling  v.  La  G73. 
Bau.  32  Fed.  2!)3,  23  Blalchf.  .305.  2See   Cimiotti   U.    Co.    v.    Bowsky. 

i"Bate,  etc.  Co.  v.  (lillette.  28  Fed.  113  Fed.  699. 
673.  3 Bell    V.   United   States   S.    Co.   32 

18 See    Cons.nidnted    F.    Co.    v.    Co-  Fed.  550. 
lumbian    Co.    85    Fed.    54;    White    v. 

1005 


I    lore  EQUITY   rUOCEDUKE— (Coutinued).  LCoJe   Fed^ 

appear  to  him  to  ro(|uii'e.     The  evidence  upon  .such  examinnritiii 
shall  be  taken  down  by  the  master,  or  by  some  other  person  !)y  his 
order  and  in  his  presence,  if  either  party  requires  it,  in  order  that, 
the  same  may  be  iised  by  the  court  if  necessary. 
81  st  equity  rule,  promuloated  March.  1842. 

§  1076.  Reference  to  master  in  decree  for  accounting  of  de- 
cedent's personalty. 
Every  decree  for  an  account  of  the  personal  estate  of  a  testator  or 
intestate  sliall  contain  a  direction  to  the  master,  to  whom  it  is  re- 
ferred to  take  the  same,  to  inquire  and  state  to  the  court  what  parts, 
if  any,  of  such  pei-sonal  estate  are  outstanding  or  undisposed  of,, 
unless  the  court  sliall  otherwise  direct. 

73rcl  equity  rule,   promulgated  March   1842. 

§  1077.     Master's  report. 

At  the  conclusion  oi'  the  investigations  made  by  the  master  pur- 
suant to  the  order  of  reference  it  is  his  duty  to  report  to  the  court 
concerning  the  premises.  The  report  should  be  returned  into  the- 
clerk's  office  and  a  dissatisfied  party  may  then  except  thereto  pur- 
suant to  rule  83.'^ 
Author's  section. 

A  master  may  be  permitted  to  withdraw  his  report  for  correction,  but 
should  not  then  reverse  his  former  findings  except  upon  notice  to  the  par- 
ties.8  The  master  after  preparing  a  draft  of  his  report  should  submit  it  to 
the  solicitors  and  have  a  hearing  upon  their  objections  before  filing  it.9 
though  in  some  districts  this  practice  is  not  followed  where  there  has  been 
full  argument  by  counsel  on  both  sides  prior  to  the  draft  of  the  report,  lo 
So  it  is  not  as  essential  where  the  objection  is  to  the  principal  finding  which 
probably  would  not  have  been  changed  as  a  result  of  the  objection. n  All 
the  evidence  should  be  included  in  the  report,  although  in  making  his  find- 
ings, the  master  may  disregard  immaterial  evidence.  12 

§  1078.     Report  should  refer  to,  and  not  recite  affidavits,  deposi- 
tions, etc. 

In  the  reports  made  by  the  master  to  the  court  no  part  of  any 
state  of  facts,  charge,  affidavit,  deposition,  examination,  or  answer 

TPost,  §  1079.  Gav  Co.  v.  Camp.  68  Fed.  68,  15  C.  C. 

^National,    etc.    Co.    v.    Davton,    9    A.  226. 
Fed-  822.  ■  loHatp]!    v.   Indianapolis,   etc.    Rv.. 

i<Troy  V.    Corning,   6   Blatchf.   .328,    9  Fed.  S.jO.  11  Biss.  13S. 
Fed.  Cas.  No.  14,19"6;  Gaines  v.  New         nCelluloid     Co     v.     Cellonite     Co. 
Orleans,  1   Vv'oods.  104,  Fed.  Cas.  Xo.     40  Fed.  476. 

5,177;  Fischer  V.  Hayes,  16  Fed.  4C:-         i2Huttig,    etc.    Co.    v.    Fuelle,    143^^ 

7ed.  363. 
1006 


Procedure]  MASTER'S   REPORT.  §   1070    [a] 

brought  in  or  used  before  tliem  shall  be  stated  or  recited.  But 
such  state  of  facts^  charge,  affidavit,  deposition,  examination,  or 
answer  shall  be  identified,  specified,  and  referred  to,  so  as  to  inforiu 
the  court  what  state  of  facts,  charge,  afiidavit,  deposition,  examina- 
tion or  answer  were  so  brought  in  or  used. 
TGth  equity  rule,  promulgated  March.  1842. 

A  master's  report  need  not  state  the  facts  he  considers  proved  by  the 
evidence.15  Under  the  order  of  reference  requires  it,  all  the  testimony 
taken  before  a  master  need  not  be  annexed  to  the  report;  and  on  appeal  in 
the  absence  of  such  requirement  it  will  be  presumed  that  other  evidence 
than  that  attached  may  have  been  submitted,  when  the  report  doos  not  pur- 
port to  contain  all.ie  AYhere  a  party  excepts  to  evidence  offered,  he  should 
reijuire  the  evidence  upon  which  the  exception  is  grounded  to  be  stated  by 
the  master. IT 

§  1079.     Filing  cf  report,  confirmation  and  exceptions  thereto. 

The  master,  as  soon  as  his  report  is  read}',  shall  return  the  same 
into  the  clerk's  office,  and  the  day  of  the  return  shall  be  entered  by 
the  clerk  in  the  order  book.  The  parties  shall  havB  one  month 
from  the  time  of  filing  the  report  to  file  exceptions  thereto  •,^^^  and 
if  no  exceptions  are  within  that  period  filed  by  either  party,  the 
report  shall  stand  confirmed  on  the  next  rule-day  after  the  month 
is  expired.  If  exceptions  are  filed  they  shall  stand  for  hearingi*^^ 
before  the  court,  if  the  court  is  then  in  session;  or,  if  not,  then 
at  the  next  sitting  of  the  court  which  shall  be  held  thereafter,  by 
adjournment  or  otherwise.  "^^^'^^^ 

83rd  equitj'  rule,  promulgated  March,  1842. 

[a]     Report  not  couclusive  on  court. 

A  masters'  report  does  not  conclude  the  court. i  It  settles  no  ri^^hts,  but 
merely  presents  the  case  to  the  court  in  such  manner  that  intelligent  ac- 
tion may  be  taken  by  it. 2  The  report  is  simply  advisory  and  may  be  ac- 
cepted or  disregarded.3  This  is  especially  true  where  the  order  of  refer- 
ence excludes  any  determination  of  the  issues  by  the  master,^  or  when  it 
is  not  entered  by  agreement. »     Hence  it  is  not  error  to  enter  a  decree  at 

i5McCormack    v.    James.   36   Fed.        2Railroad  v.  Swiisev.  23  Wall.  410. 

14.  23  L.  ed.  1.36. 

leSheffield.  etc.  Rv.  v.  Gordon,  151        sKimbcrlev  v.  Arms,  129  U.  S.  523, 

U.  S.  2fl3,  38  L.  eil."  164,  14  Sup.  Ct.  32  L.  ed.  764.  9  Sup.  Ct.  Rep.  355; 

Rep.  343.  Boesch  v.  Gaff,  133  U.  S.  705.  33  L. 

iTGreene   v.   Bishop,    1    Cliff.    186.  ed.  787,  10  Sup.  Ct.  Rep.  .378. 
Fed.  Cas.  Xn.  5.763.  4B]vt.hc  v.  Thomas.  45  Fed.  78-1. 

1  Field  V.  Holland.  6  Cranch.  22,  3        sBo^wortli    v.    Hook,    77    Fed.    GS3, 

L.  ed.   136:    United  States  T.  Co.  v.  23  C.  C.  A.  404. 
Omaha  Rv.  63  Fed.  737. 

1007 


§   1079    [b] 


EQUITY    PROCEDURE— (Continued.). 


[Code  Fed. 


variance  with  the  master's  conchisions;6  and  the  court  may  correct  an  error 
in  the  report."  But  where  by  consent  of  parties,  the  entire  cause,  both  law 
and  fact,  is  submitted  to  a  master  for  decision,  the  court  should  deerei?  ia 
conformity  with  the  master's  conclusions,  except  for  manifest  error  therein.s 
or  unless  further  evidence  is  received  before  the  court,  and  one  of  the  ques- 
tions is  the  legal  effect  of  documentary  evidence; 9  or  unless  his  findings  are 
clearly  against  the  evidence,io  or  essentially  defective.!! 

[b]  Necessity  for  objection  before  master. 

Questions  raised  before  the  master  are  deemed  waived  if  not  made  mat- 
ter of  exception,  unless  on  its  face  the  report  shows  error.  The  general 
rule  is  thafi*  a  party  is  entitled  to  no  exception  before  the  court  which  he 
has  not  made  before  the  master,  since  the  latter  should  have  been  given  au 
opportunity  to  correct  the  error,  if  any.i5  But  error  of  law  in  the  report 
may  be  challenged  in  the  absence  of  exception  before  the  master.! 6  The 
master  should  submit  a  draft  of  the  report  tn  the  counsel,  and  havo  a 
hearing  there  to  enable  objections  to  be  taken;!'  although  in  some  circuits 
cults  this  is  dispensed  with  where  the  report  is  drawn  after  full  argument 
by  counsel  upon  both  sides.  !S 

[c]  Necessity  for  specific  exceptions. 

An  exception  should  distinctly  and  specifically  point  out  the  finding  and 
conclusion  of  the  master  which  it  seeks  to  reverse.!  A  general  assignment 
of  error  is  insufficient. 2     If  specific,  exceptions  may  be  sufficient,  though 


eOteri  v.  Sealzo,  Uri  U.  S.  .589, 
590,  36  L.  ed.  824,  12  Sup.  Ct.  Rep. 
895. 

TSheffield.  etc.  Rv.  v.  Gordon.  151 
U.  S.  291.  .38  L.  ed.  164.  14  Sup.  Ct. 
Eep.   343. 

sWestern  U.  T.  Co.  v.  iVmerican  B. 
T.  Co.  105  Fed.  684;  Kimberlev  v. 
Arms,   129  U.  S.  524,  ,32   L.  ed.  "764, 

9  Sup.  Ct.  Rep.   ,355. 

sUnited  States  T.  Co.  v.  Mercan- 
tile T  Co.  88  Fed.  140,  31  C.  C.  A. 
427. 

JoThird  Nat  Bank  v.  National 
Bank.  86  Fed.  852,  30  C.  C.  A.  436. 

!!Farrer  v.  Bernheim,  75  Fed.  136, 
21  C.  C.  A.  264. 

!  4 Gordon  v.  Lewis,  2  Sum.  143, 
Fed.  Cas.  No.  5,613. 

isStory  V.  Livingston,  13  Pet.  30G, 

10  L.  ed.  200;  McMicken  v.  Perin, 
IS  How.  .507,  15  L  ed.  504;  Trov  Co. 
v.  Corning,  6  Blatehf.  333,  Fed."  Cas. 
No.  14.196;  Gaines  v.  New  Orleans, 
1  Woods,  104,  Fed.  Cas.  No.  5,177; 
Fischer  v.  Hayes,  16  Fed.  469;  Mc- 
Namara   v.  Home,  etc.   Co.   105   Fed. 


202;  Gav  Mfg.  Co.  v.  Camp,  68  Fed. 
OS,   15  C.  C.   A.  226,  and  cases  cited. 

isCelluloid  M.  Co.  v.  Cellonite  M. 
Co.  40  Fed.  476:  Home,  etc.  Co.  v. 
McNamara,  111  Fed.  822,  49  C.  C.  A. 
642. 

!^Troy  V.  Corning,  6  Blatehf.  328, 
Fed.  Cas.  No.  14,196:  Gaines  v.  New 
Orleans.  1  Woods,  104,  Fed.  Cas.  No. 
5,177;  Fischer  v.  Hayes,  10  Fed.  469. 

!sHatch  v.  Railroad,  9  Fed.  856; 
11  Biss.  138;  -Jennings  v.  Dolan,  29 
Fed.  861. 

!Nenl  V.  Briggs,  110  Fed.  477; 
Appeal  of  Columbus,  etc.  R.  R.  109 
Fed.  177,  48  C.  C.  A.  275;  Foster  v. 
Goddard,  1  Black.  509.  17  L.  ed.  228; 
Sheffield,  etc.  Rv.  v.  Gordon,  151  U. 
S.  290,  38  L.  ed."l64,  14  Sup.  Ct.  Rep. 
343;  General  Fire,  etc.  Co.  v.  Lamar, 
141   Fed.  353,   (C.  C.  A.) 

2Dexter  v.  Arnold,  2  Sum.  108,  Fed. 
Cas.  No.  3.858;  Greene  v.  Bishop,  1 
Cliff.  186,  Fed.  Cas.  No.  5.763;  Stan- 
ton V.  Alabama,  etc.  R.  R.  2  Woods, 
506,  Fed.  Cas.  No.  13,296. 


1008 


Procedurie] 


MASTER'S  REPORT. 


§   1079   [e] 


not  technically  drawn. 3  The  verbal  objections  to  the  draft  of  the  report 
may  suffice  for  exceptions  thereto. <  And  where  the  evidence  accompanies 
the  report  and  shows  the  objections  interposed  thereto,  those  objections  are 
sufficient  without  enumerating  them  further  in  the  exceptions  taken  to  the 
report. 5  Where  the  evidence  does  not  accompany  the  report,  the  party 
must  require  that  the  evidence  on  which  an  exception  is  grounded  be  stated 
by  the  master,6  and  where  there  is  no  evidence  at  all  before  the  court  ex- 
cept exhibits  the  master's  findings  will  be  taken  as  true. 7  An  exception  to 
allowance  of  claims  in  a  master's  rejwrt  based  upon  an  invalid  statute,  need 
not  allege  that  invalidity.*  If  no  exceptions  at  all  are  taken,  a  party  can- 
not on  appeal  then  first  challenge  the  master's  report. 9 

[d]  Time  for  exceptions. 

The  requirement  for  exception  within  one  month  applies  to  report  upon 
a  receiver's  compensation; i^  but  not  to  the  master's  ministerial  acts,  such 
as  a  sale,  and  it  is  not  premature  to  confirm  a  sale  within  one  month. is 
"One  month"  means  a  calendar  and  not  a  lunar  month. i*  The  exceptions 
may  be  filed  any  time  within  the  month. is  Amended  exceptions  filed  after 
the  prescribed  time  will  be  overruled  on  motion. is 

[e]  Grounds  of  exception  and  persons  entitled  to  except. 

It  is  no  ground  of  objection  that  the  master  was  not  sworn,  when  the 
•order  of  reference  did  not  so  require.is  Xor  is  it  ground  of  exception  that 
on  an  accounting  the  master  reports  more  due  than  the  bill  claimed, 20  nor 
that  he  awarded  interest  pursuant  to  an  interlocutory  decree  and  the  order 
of  reference.  1  A  new  defense  is  not  proper  in  the  form  of  exception  to  the 
master's  report,  after  decree  determining  the  merits. 2  Report  upon  a  mat- 
ter not  referred  to  the  master  may  be  e.xcepted  to.3  An  exception  based  on 
matters  of  fact  not  taken  before  the  master  will  not  be  considered.*     An 


sCentral   T.   Co.  v.   Wabash   R.   R.  isPewabic   M.    Co.    v.   Mason,    14.5 

57  Fed.  441.  U.  S.  36.3,  36  L.  ed.  732,  12  Sup.  Ct. 

4 Fischer  v.  Hayes,  16  Fed.  469.  Rep.  887. 

sMarks   v.    Fox,    18    Fed.    713.  i^Qasquet  v.  Crescent  C.  B.  Co.  49 

sDonncll   v.    Coiumbian   Ins.   Co.   2  Fed.  493. 

Sumn.     .366.     Fed.     Cas.     No      3.9S7;  i^Fidelitv.  etc.  Co.  v.  Shcnan.loah 

Greene   v.   Bishop,   1    Cliff.    186.    Fed.  Co.  42  Fed."  372. 

■Cas.  No.  5,763.  leSyz  v.  Redfield.  11  Fed.  799. 

vAtlas.    etc.    Bank    v.    French,    etc.  isThompson  v.  Smith.  2  Bond.  320, 

Co.   134  Fed.  746.  Fed.  Cas.  No.  13.976. 

^Fidelity  Co.  v.  Shenandoah  Co.  42  20Nashua.  etc.  R.  R.  v.  Boston,  etc. 

Fe.l.  372.  R.  R.  49  Fed.  774. 

■'Burnes   v.  Rosenstein,    135   U.   S.  iNashua.  etc.  R.  R.  v.  Boston,  etc. 

4.');i,  34  L.  ed.  193,   10  Sup.  Ct.  Rep.  R.  R.  49  Fed.  774. 

817;  Medsker  V.  Bonebrake,  108  U.  S.  2Ne\v   Orleans   v.    Warner.    180   U. 

71.  72.  27  L.  ed.  654.  2  Sup.  Ct.  Rep.  S.  199.  45  L.  ed.  493,  21  Sup.  Ct.  Rep. 

351  ;    Pleasant    v.    Beckwitli,    100    U.  353. 

S.  528,  25  L.  ed.  702;  Topliff  v.  Top-  sTavlor  v.  Roberts-on.  27  Fed.  537. 

liff.  145  V.  S.   173.  36  L.  ed.  665,  12  Hinx  Co.  V.  Camp.  6S   Fed.  07,   15 

f^up.  Ct.  Rep.  832.  C.  C.  A.  220. 

i2Gasquet  v.  Crescent  C.  B.  Co.  49 
Fed.  493. 

Fed.   I'roc— 64.  1009 


§  1079   [f] 


EQUITY  PROCEDURE— (Continued). 


[Code  Fed. 


intervener  who  fails  to  make  his  case  and  the  amount  of  his  claim  reason- 
ably certain  cannot  except  to  the  master's  finding  aginst  him. 5 

[f]  Waiver  and  withdrawal  of  exceptions. 

A  waiver  of  right  to  except  to  a  report  does  not  concede  the  correctness 
of  a  decree  thereafter  entered  thereon. s  Withdrawal  of  exceptions  in  the 
order  book  and  in  a  paper  filed  in  the  cause  is  sufficient. 9 

[g]  Report  presumed  correct — disposition  of  exceptions. 

Every  reasonable  presumption  is  indulged  in  favor  of  a  master's  report 
upon  matters  of  fact,  especially  where  the  testimony  is  seriously  conflict- 
ing; 12  and  it  will  not  be  set  aside  or  modified  in  the  absence  of  some  clear 
error  or  mistake.i3  The  presumption  in  favor  of  a  master's  findings  are- 
especialh'  strong  where  the  reference  is  by  consent. i^  Harmless  or  incon- 
sequential error  is  no  ground  for  setting  a  report  aside.iB  A  report  as  to 
damages  will  not  be  set  aside  unless  clearly  inadequate  or  excessive. 1 6 
But  where  a  report  is  withdrawn  and  the  original  findings  are  reversed 
without  notice  or  hearing,  presumptions  in  favor  of  its  correctness  are  de- 
stroyed.i"  Exceptions  must  be  founded  upon  the  facts  stated  in  the  report 
or  in  accompanying  documents. is  They  are  to  be  regarded  only  so  far  as 
supported  by  the  special  statements  of  tlie  master  or  by  particular  testimniiT 
in  the  cause  upon  which  the  exceptor  relies. 1 9  ^'^liere  the  exceptions  make 
no  allusion  to  the  evidence  and  the  statement  of  the  master  does  not  sup- 
port them,  but  supports  his  findings,  the  report  must  be  confirmed. 20  Upon 
appeal  a  master's  report  concurred  in  by  the  court  below,  will  be  adhered 
to  unless  for  obvious  error  or  mistake.i    If  there  are  sufficient  facts  in  the 


sMissouri.  etc.  Rv.  v.  Texas,  etc. 
Ry.  33  Fed.  376. 

sWaterman  v.  Banks.  144  U.  S. 
394,  36  L.  ed.  479,  12  Sup.  Ct.  Rep. 
646. 

9Gasquet  v.  Crescent  C.  B.  Co.  49 
Fed.  493. 

12 Appeal  of  Columbus,  etc.  R.  R. 
109  Fed.  117,  48  C.  C.  A.  275;  Mis- 
souri, etc.  Ry.  V.  Texas  Rv.  33  Fed. 
803:  Callaghan  v.  Myers, "^128  U.  S. 
666,  667,  32  L.  ed.  547,  9  Sup.  Ct. 
Rep.  177;  Davis  v.  Schwarz,  155  U.  S. 
636.  39  L.  ed.  289.  15  Sup.  Ct.  Rep. 
237:  Camden  v.  Stuart,  144  U.  S.  104, 
36  L.  ed.  363.  12  Sup.  Ct.  Rep.  585; 
Chandler  v.  Pomeroy,  87  Fed.  262. 

isGirard  Ins.  Co.'v.  Cooper,  162  U. 
S.  538.  40  L.  ed.  1062.  16  Sup.  Ct. 
Rep.  879:  Jaffrev  v.  Brown.  29  Fed. 
476:  Taintor  v.  Franklin  Bank,  107 
Fed.  825:  Lake.  etc.  Rv.  v.  Fremont, 
92  Fed.  721.  34  C.  C.  A*.  625:  Stanton 
V.  Alabama,  etc.  Ry.  31  Fed.  585; 
Kilgour  V.  National  Bank,  97  Fed. 
693. 


14  See  Walker  v.  Kinnare,  76  Fed. 
101.  22  C.  C.  A.  75;  Walters  v.  Rail- 
road, 69  Fed.  706. 

isMason  v.  Crosby,  3  Woodb.  &  M. 
258,  Fed  Cas.  No.  9.236;  Gottfried  v.. 
Crescent  B.  Co.  22  Fed.  433. 

i6]Murphy  v.  Southern  Rv.  99  Fed. 
469. 

1  "National,  etc.  Co.  v.  Dayton  Co. 
91   Fed.  822. 

isDexter  v.  Arnold,  2  Sumn.  lOS, 
Fed.  Cas.  No.  3.858. 

isHarding  v.  Handv,  11  Wheat. 
126.  6  L.  ed.  429;  Fa'rrar  v.  Beru- 
heim,  75  Fed.  136.  21  C.  C.  A.  2<)4; 
Jaff"rev  v.  Brown,  29  Fed.  476;  Jonea^ 
V.  Lamar.  39  Fed.  585. 

2  0Cutting  V.  Florida  R.  R.  43 
Fed.  743. 

1  Crawford  v.  Neal.  144  U.  S.  596, 
36  L.  ed.  552,  12  Sup.  Ct.  Rep.  759; 
Furrer  v.  Ferris,  145  U.  S.  134.  30  L. 
ed.  649.  12  Sup.  Ct.  Rep.  821 ;  Fisher 
v.  Shropshire.  147  U.  S.  146,  37  L.  cJ. 
109.  13  Sup.  Ct.  Rep.  201. 


1010 


I'loceduie]  EXCEPTIONS  TO  MASTER'S  REPORT.  {  1080 

report  unexcepted  to,  to  entitle  either  party  to  a  decree,  the  exceptions  may 
be  disregarded.2 

[h]     Hearing  and  recommittal. 

Prior  to  the  regulation  of  the  matter  by  the  present  rule,  it  was  held 
that  a  report  might  be  considered  at  the  term  when  made.6  A  second  hear- 
ing on  exceptions  will  not  be  allowed."  But  a  court  may  in  its  discretion 
permit  an  amendment  of  general  exceptions. s  The  court  will  not  verify 
each  interest  calculation. 9  It  has  power  to  recommit  the  report  for  fur- 
ther investigation  or  correction. lo  Where  the  report  discloses  facts  Tu-ces- 
sitating  further  investigation,  the  court  will  eo  order. n  Recommittal  may 
be  ordered  if  a  question  did  not  receive  sufficient  attention. 12  But  small 
errors  are  not  grounding  for  requiring  restatement  of  an  account.is  Js[or 
are  minor  inaccuracies  ground  for  recommittal,!  <  or  the  omission  to  state 
conceded  facts.is  ^ATiere  the  report  can  be  corrected  without  rereference 
this  should  be  done. 1 6 

[i]     Reopening  proceedings  after  report  filed. 

After  filing  of  the  report  the  proceedings  will  not  be  reopened  to  permit 
dilatory  creditors  to  appear,  make  objections  and  present  testimony ;i" 
nor  to  permit  a  party  to  challenge  the  truth  of  testimony  where  he  had 
elected  to  rely  upon  its  incompetency.!  8 

§  1080.     Costs    imposed    upon    overruling    and    allowing    of    ex- 
ceptions. 

In  order  to  prevent  exceptions  to  reports  from  being  filed  for 
frivolous  causes,  or  for  mere  delay,  the  party  whose  exceptions  ar(^ 
overruled,  shall,  for  every  exception  overruled,  pay  costs  to  the 
other  party,  and  for  every  exception  allowed  shall  be  entitled  to 
costs;  the  cost  to  be  fixed  in  each  case  by  the  court,  by  a  standini:; 
rule  of  the  circuit  court. 

84th  equity  rule,  promulgated  March,  1842. 

Solicitors'  fees  are  not  costs  within  the  meaning  of  this  rule.! 

2 Central  T.  Co.  v.  Wabash  Rv.  57  i2Missouri.  etc.  R.  R.  v.  Texas,  etc. 

Fed.  441.                                             .'  Ry.  3,*?  Fed.  350. 

fiCoates    V.   Mucse,    1    Brock.    529,  '1  sTavlor  v.  Robertson.  27  Fed.  537. 

Fed.   Cas.   No.  2.916.  i4^rcElrov  v.   Swope.  47   Fed.  380. 

■^Felch  V.  Hoop«r,  4  Cliff.  489.  Fed.  i^^.Tennings  v.  Dolan.  29  Fed.  861  : 

Cas.  No.  4,718.  Reading  Ins.  Co.  v.  Egelhoff,  115  Fed. 

s.Tones  v.  Lamar.  39  Fed.  585;  com-  .393. 

pare  Svz  v.  Redfield.  11  Fed.  799.  leWitlers  v.   Sowles,   43  Fed.  405. 

flChandler  v.  Pomerov,  96  Fed.  156,  i^Sands  v.  Greeley,  S3  Fed.  772. 

37  C.  C.  A.  430.              *  isCimcotti  U.   Co.  v.  Bowsky,   113 

loNational.  etc.  Co.  v.  Dayton  Co.  Fed.  699. 

9]   Fed.  822.  iPrexiously  it  was  regarded  as  im- 

iiMagic  R.   Co.  V.   Elm   C.   Co.   14  inoprr:      Whitiii?  v.    I'nitcd   States, 

Blatchf.  109,  Fed.  Cas.  No.  8,950.  13  Pet.  16.  10  L.  ed.  38. 

1011 


CHAPTER  31. 

EQUITY   FROCEDUEE    (CONTINUED)— DECREES  AND  ORDERS,  RE- 
HEARING, ENFORCEMENT    BILL  OF   REVIEW. 

§  1090.  Form  of  decree  or  order — matters  to  be  omitted. 

§  109L  Decree  requiring  specific  act  should  prescribe  time  thereof. 

§  1092.  Correction  of  clerical  mistakes  or  accidental  omissions, 

§  1093.  Deficiency  decree  in  foreclosure  suits. 

§  1094.  Rehearing. 

§  1095.  Proper  process  to  enforce  orders  and  decrees. 

§  109{i.  Proper  final   process  in  equity. 

§  1097.  Writ  of  assistance  to  compel  delivery  of  possession. 

§  1098.  Enforcement  of  orders  by  or  against  persons  not  parties. 

§  1099.  Bill  of  review. 

§  1100.  Final  record  what  to  contain. 

§  1090.     Form  of  decree  or  order — matters  to  be  omitted. 

In  drawing  up  decrees  and  orders,  neither  the  bill,  nor  answer, 
nor  other  pleadings,  nor  any  pai"t  thereof,  nor  the  report  of 
any  master,  nor  any  other  prior  proceeding,  shall  be  recited 
or  stated  in  the  decree  or  order ;  but  the  decree  and  order  shall  begin, 
in  substances,  as  follows :  "This  cause  came  on  to  be  heard  (or  to  be 
further  heard,  as  the  case  may  be)  at  this  term,  and  was  argued  by 
counsel;  and  thereupon,  upon  consideration  thereof,  it  was  ordered, 
adjudged,  and  decreed  as  follows,  viz."  [Here  insert  the  decree 
or  order.] 

86th  equity  nile.  promulgated  March.  1842. 

Decrees  in  equity  dilTer  widely  from  judgments  at  law.  The  latter  are 
simple  and  unifonu  wliile  the  former  are  often  complicated  owing  to  the 
more  comprehensive  relief  given.  Althoiigh  this  rule  abolished  the  prac- 
ticei  of  reciting  pleadings  in  a  decree,  it  is  often  proper  that  the  decree 
state  conclusions  of  fact  as  well  as  of  law.  in  order  to  render  the  judg- 
ment clearer. 2  Any  decree  is  interlocutory  which  is  not  complete  and  final 
nnd  which  leaves  matters  undetermined  before  the  court  to  be  ascertained 
and  disposed  of  before  the  granting  of  the  full  relief  that  is  proper  in  the 

zPutnam  v.  Day.  22  Wall.  07.  22 
L.  ed.  764:  see  McClaskev  v.  Barr, 
48  Fed.  131. 

1012 


iTocedure]  DECREE   AND    ENFORCEMENT.  §   1092   [al 

preinises.3  When  a  hearing  has  been  had  in  a  cause  upon  the  testimony 
taken  after  issue  joined,  the  court  very  frequently  n-akes  a  decree  de- 
claring the  legal  rights  of  the  parties,  which  is  merely  interlocutory  because 
accounts  are  still  to  be  examined,  or  damages  ascertained,  or  a  sale  made, 
or  some  other  thing  roust  first  be  done  before  the  court  can  enter  final  decree 
disposing  of  the  cause. < 

§  1091.     Decree    requiring    specific    act    should    prescribe    time 
therefor. 

If  the  decree  be  for  the  performance  of  any  specific  act.  as,  for 
example,  for  the  execution  of  a  conveyance  of  land  or  tlie  delivering 
up  of  deeds  or  other  documents,  the  decree  shall,  in  all  cases,  pre- 
scribe the  time  within  which  the  act  shall  be  done,  of  which  the 
defendant  shall  be  bound  without  further  service  to  take  notice. 
Part  of  8th  equity  rule,  promulgated  March,  1842. 

Rule  8  is  given  in  full  in  a  subsequent  section.'  The  failure  to  fix  a  time 
for  performance  will  not  prevent  contempt  proceedings  for  nonperform- 
ance; s  nor  prevent  a  decree  from  being  deemed  final.9  A  court  may  pro- 
tect a  lien  of  defendants  which  he  failed  to  enforce  by  cross  bill,  by  attach- 
ing terms  to  its  decree  against  him  for  performance.io 

§  1092.     Correction  of  clerical  mistakes  or  accidental  omissions. 

Clerical  mistakes  in  decrees,  or  decretal  orders,  or  errors  arisinpr- 
from  any  accidental  slip  or  omission,  may,  at  any  time  before  an 
actual  enrollmentf^^  thereof,  be  corrected  by  order  of  the  court  or  a 
judge  thereof,  upon  petition,  without  the  form  or  expense  of  a 
rehearing,  f^^  ^^'^ 

85th  equity  rule,  promulgated  March,  1842. 

[a]     Enrollment  of  decree. 

In  English  practice  decrees  is  equity  are  enrolled  upon  parchment  under 
the  great  seal  in  chancery.  But  in  the  United  States  all  decrees  are  matters 
of  record  just  as  are  judgments  at  law,  and  technical  enrollment  has  never 
obtained.  A  decree  is  considered  as  enrolled  when  signed  by  the  chancellor 
and  filed  by  the  clerk,  and  the  term  has  elapsed  at  which  it  was  rendered. i* 
The  signing,  filing  and  lapse  of  the  terms  are  therefore  in  our  practice  the 

sSouter    c.    I^a    Crosse    R.    R.    1         ^Desvergers  v.  Parsons,  GO  Fed.  143, 

U.  S.  54.5.  .3(i  L.  ed.  1079.  13  Sup.  Ct.  8  C.  C.  A.  .52(i. 

Rep.  170;  Blvthe  V.  Hinckley,  84  Fed.        loSee  McPherson  v.  Cox,  96  U.  S. 

2.39.  *  "  420,  24  L.  ed.  746. 

*See  Perkins  v.  Fourinquet,  6  How.         uSee  Dexter  v.  Arnold.  5  Mas.  .303, 

206.  12  L.  ed.  407.  Fed.  Cns.  Xo.  3.8.56:  Whiting  v.  Unit- 

vPost.  §  1095.  ed  St.Ttes  Bank.  13  Pet.  6.   10  L.  el. 

sSouter    v.     La     Crosse     R.     R.     1  33 ;  Robinson  v.  Rudkins,  28  Fed.  8. 
Woolw.  SO,  Fed.  Cas.  No.  13,180. 

1013 


S   1092   [b]  EQUITY  PROCEDURE— (Continued).  [Code  Fed. 

equivalents   for  enrolling  and   are  presumably  intended  by   "actual  enroll- 
ment thereof"  as  used  in  the  above  rule. 

[b]     Interlocutory  decrees. 

It  is  the  settled  rule  in  Federal  practice  that  an  interlocutory  decree, 
is  within  the  control  of  the  court  at  all  times  until  final  decree,  though 
the  term  of  its  entry  has  elapsed;  and  hence  ohat  it  may  be  altered  or  re- 
versed or  disregarded  in  the  final  deoiee.i"  In  this  respect  the  Federal 
rules  differs  from  that  prevailing  in  many  States,  where  interlocutory  de 
■cree  settling  the  rights  of  the  parties  becomes  unalterable  with  the  lapse 
of  the  term. 18  The  Federal  doctrine  was  established  after  the  promulgation 
■of  the  equity  rules.  In  view  of  the  fact  that  the  authorities  declare  an 
interlocutory  decree  always  open  to  amendment  and  correction,!  9  it  is  not 
clear  that  rule  85,  supra,  should  not  be  construed  as  referring  to  other  tliaii 
final  decrees,  although  the  language  used  suggests  also  interlocutory  orders 
jind  decrees.  Often  there  is  no  particular  need  for  motion  to  correct  inter- 
locutory decrees  since  it  can  be  done  on  the  coming  in  of  the  master's  re- 
;port,2  0  or  be  remedied  by  final  decree. 

£c]     Final  decrees. 

In  the  case  of  final  decree  the  expiration  of  the  term  at  v.iiich  it  is 
rendered  greatly  reduces  the  power  wliich  a  court  of  equity  will  consents 
to  exercise  respecting  its  alteration,  amendment,  or  vacation.  During  the 
term  it  will  exercise  plenary  power  and  amend,  add  to,  correct  or  vacate 
a  decree*  whether  for  clerical  mistake  or  substantial  error  therein.  So  it 
motion  to  that  end  is  made  during  the  term  it  may  be  continued  over  and 
acted  upon  at  an  ensuing  term.s  But  after  the  terra,  alleged  error  involving 
the  merits  of  the  case  will  not  move  the  court  to  reverse  its  prior  decree,*' 

iTlowa   V.   Illinois,    151    U.  S.   238,  volved.  although  the  subject  is  some- 

tl8  L.  ed.  145,  14  Sup.  Ct.  Rep.  333;  times  so  treated.     The   rules  govern- 

Fourniquet   v.    Perkins,    16   How.   85,  ing  the  mntter  are  judge-made  rules, 

14  L.  ed.  85();  Clark  v.  Blair.  14  Fed.  based  upon  considerations  of  propri- 

812:  4  McCrarv,  311;  Steam,  etc.  Co.  etv  and  expediencv 

V.  Sheldon,  21  Fed.  875;  American  D.  "4Dnss  v.  Tvack,  'l4  How.  312.  14  L. 

D.  Co.  V.  Sullivan  M.  Cu.  21  Fed.  74;  ed.  428;   Bronson  v.  Schulten,  104  U. 

Henry  v.   Travelers  Ins.  Co.  34  Fed.  S.    410,    26    L.    ed.    797;    Barrell    v. 

258;  Blvthe  v.  Hinckley.  84  Fed.  239;  Tilton,   119  U.  S.  643,  30  L.  ed.  511, 

Pullan  V.  Cincinnati  R.'Pv.  5  Biss.  237,  7    Sup.    Ct.    Rep.    332;    Henderson   v. 

Fed.  Cas.  No.  11.402;  Reeves  v.  Kev-  Oarbondale.  etc.  Co.  140  U.  S.  40,  35 

stone  B.  Co.  2  B.  &  A.  256.  Fed.  Cas.  L.  ed.  332.  11  Sup.  Ct.  Rep.  691. 

No.   11,661.  BCxoddard  v  Ordway,  101  U.  S.  745. 

isSee  5  Encvc.  PI.  &  Pr.  1042.  25  L.  ed.  1040;  Bronson  v.  Schulten, 

i9Linder  v. 'Lewis,  4  Fed.  318;  De  104  U.  S.  410.  26  L.  ed.  797;   Linder 

Florez    v.    Reynolds.    8    Fed.    434,    17  v.    Lewis,    1     Fed.    378;    Crahani    v. 

Blatchf.  436; 'Clark  v.  Blair,  14  Fed.  Swayne,    109    Fed.   366,   48   C.   C.   A. 

S12.    4    Mc    Crarv    311;    Wooster    v.  411. 

Handy,  21  Fed.  5*1.  « Cameron  v.  McRoherts,  3  Wheat. 

20See  Henry  v.  Travelers  Ins.  Co.  591.  4  L.  ed.  467;  ^IcMit^ken  v.  Perin. 

34  Fed.  258.    "  18   How.  507,  15  L.  ed.   504;    French 

3 It   must   be    remembered   that    no  v.    Hay,    22    Wall.    238,    22    L.    ed. 

question  of  jurisdictional  power  is  in-  854;  Central  T.  Co.  v.  Grant  L.  Works, 

1014 


riocedure]  DECREE    AND    ENFORCEMENT.  §   1093 

and  the  remedy  must  be  by  bill  of  review  or  appeal."  As  respects  clerical 
mistakes  and  accidental  omissions  the  right  of  amendment  during  the  term 
is  recognized  by  the  Rule  85  supra,  and  comes  clearly  within  the  principle 
of  plenary  control  during  the  term,  recognized  by  the  authorities. »  At  that 
time  clerical  mistake  may  be  corrected  even  although  appeal  has  been  taken. !• 
The  authorities  go  further,  however,  than  rule  85  seems  to  contemplate, 
and  have  recognized  also  the  right  to  correct  clerical  mistakes  or  the  in- 
advertent entering  of  a  decree  at  an  ensuing  term; lo  though  if  there  is  a 
doubt  whether  a  mistake  is  clerical  or  judicial,  correction  will  be  refused. i' 
The  safer  way  of  correcting  clerical  mistakes  after  the  term,  is  perhaps, 
bill  of  review. 12  Rule  S8i3  establishes  a  further  limitation  on  the  principle 
that  a  decree  is  unalterable  after  the  term,  and  permits  petition  for  re- 
hearing at  a  subsequent  term  in  causes  not  appealable.  There  are  also 
other  exceptions  to  the  geneial  rule  of  the  inviolability  of  decrees  after 
tlie  expiration  of  the  term.  In  executing  a  final  decree,  orders  may  be 
nuxde  at  a  subsequent  term  modifying  its  terms,  e.  g.  as  to  sale  there- 
imder.i* 

§  1093.     Deficiency  decree  in  foreclosure  suits. 

In  suits  in  equity  for  the  foreclosure  of  mortgages  in  the  circuit 
courts  of  the  United  States,  or  in  any  court  of  the  Territories 
having  jurisdiction  of  the  same,  a  decree  may  be  rendered  for  any 
balance  that  may  be  found  due  to  the  complainant  over  and  above 
the  proceeds  of  the  sale  or  sales,  and  execution  may  issue  for  the 
collection  of  the  same,  as  is  provided  in  the  eighth  rule^'^  of  thi.s 
court  regulating  the  equity  practice,  where  the  decree  is  solely  for 
tl'.e  payment  of  money. 

92nd  equity  rule,  promulgated,  April  18,  1864.18 

The  rule  resulted  from  the  decision  that  execution  could   not   issue   for 

i:5.>  U.  S.  224.  34  L.  ed.  97.  10  Sup.  Ct.  Sawy.    625.    Fed.    Cas.    Xo.     14.754; 

Rep.   736;    Robinson   v.   Rudkins.   28  United   States   v.   Williams.   67    Fed. 

Ks'd.  8:    Campbell  v.  James.  31    Fed.  384,    14    C.    C.    A.    440:     Fisher    v. 

525;  Petersburg  Co.  v.  Dellatorre,  70  Simon.  67  Fed.  387.  14  C.  C.  A.  443. 

Fed.  64.3,  17  C.  C.  A.  310;  Omaha  v.  S«e  in  re  Pentlargo.  17  Blatchf.  306. 

Reddick.  63  Fed.  1,  11  C.  C.  A.  1.  Fed.    Cas.   No.    10>()2;    and   Coleman 

"Huntington   v.  Little  Rock  R.  R.  v.   Neil,   11   Fed.   401,   refusing  relief 

16  Fed.  906.  3  McCrarv  581.  where  several  terms  had  elapsed. 

sWitters'v.    Sowles".    32    Fed.    1.30,        nHicklin  v.  Marco.  64  Fed.  609. 
24   Blatchf.    .550;    Henderson    v.   Car-         i2See  Robinson  v.  Rudkins,  28  Fed. 

bondale.  etc.  Co.  140  I'.  S.  25,  35  L.  8. 
ed.  332.  11  Sup.  Ct.  Rep.  691.  i3Post.    §    1094.     Moelle    v.    Sher- 

oHovev  v.  McDonald.  109  V  S.  158,  wood,   148   U.    S.   21,    37    L.   ed.   350, 

27  L.  ed.  888,  3  Sup.  Ct.  Rep.  1.36.  13  Sup.  Ct.  Rep.  420. 

loRobinson  v.  Rudkins.  28  Fed.  S;        i4Mootrv  v.  Gravson.  104  Fed.  613, 

Hicklin  v.  Marco,  64  Fed.  609;   Lin-  44  C.  C.  A.  83. 
coin    Nat.    Bank    v.    Perry.    66    Fed.        i^See  post,  §  1096. 
887;     United     States     v.     Castro,     5         in  Wall.  v. 

1015 


§   1094  EQUITY   PnOCEl)ITRE—(  Continued).  [Code  Fed. 

a  balance  duo  on  a  mortgage  after  sale  of  the  security. 1 9  It  authorizes 
personal  judgment  for  a  deficiency ;  20  even  in  the  absence  of  any  prayer 
therefor,  though  it  is  better  practice  to  insert  such  prayer.i  The  mort- 
gagee is  entitled  to  deficiency  decrees  as  matter  of  right  where  the  proceeds 
are  less  than  the  judgment. 2 

§  1094.     Rehearing. 

Every  petition  for  a  rehearing^'*^'''^  shall  contain  the  special  mat- 
ter or  cause  on  which  such  rehearing  is  applied  for,  shall  he  signed 
»)}'  counsel,  and  the  fact  therein  stated,  if  not  apparent  on  the  rec- 
ord, shall  he  verified  by  the  oath  of  the  party,  or  by  some  other 
person. '^'^^  No  rehearing  shall  be  granted  after  the  term  at  which 
the  final  decree'^'^^  of  the  court  shall  have  been  entered  and  recoi'ded, 
if  an  appeal  lies  to  the  Supreme  Conrt.  But  if  no  appeal  lies,  the 
petition  may  be  admitted  at  any  time  before  the  end  of  the  next  term 
of  the  court,  in  the  discretion  of  the  court.f^^ 
88th   equity    rule,   promulgated   March.    1842. 

[a]  Nature  of  remedy  by  rehearing  in  equity. 

For  error  in  a  final  decree,  other  than  clerical  error  or  accidental  omis- 
sion,5  the  appropriate  remedy  during  the  term  at  which  the  decee  is  ren- 
dered in  appealable  cases,  and  also  during  the  next  term  in  nonappealable 
cases,  is  petition  for  rehearing.  The  remedy  is  also  used  for  tlie  correction 
of  error  in  an  interlocutory  decree,*!  although  motion  will,  it  seems,  sullice 
and  the  use  of  petition  for  rehearing  in  such  a  case  has  been  declared  tech- 
nically improper.7  After  the  term  in  appealable  cases,  the  remedy  for 
other  than  clerical  error  is  by  bill  of  review  and  never  by  petition  for 
rehearing.8 

[b]  Grounds  for  rehearing — discretion. 

Rehearing  in  Federal  eijuity  practice  is  not  a  matter  of  right  but  rests 
in  the  sound  discretion  of  the  court.n     That  discretion  is  to  be  exercised 

isNoonan  v.  Lee,  2  Black,  499,  17  Whiting,  1  Storv,  218,  Fed.  Cas.  No. 

L.    ed.    278;    Orchard    v.    Hughes,    1  786;    Gillette    v.    Bate    Co.    12    Fed. 

Wall.   77,  17  L.  ed.   560.  108:  Rogers  v.  Marshall,  12  Fed.  614. 

20Walker  v.  Dreville,  12  Wall.  442,  "Pullam    v.    Pullam.    10    Fed.    5^; 

20  L.  ed.  429.  Campbell  Co.  v.  Marden,  70  Fed.  339. 

1  Seattle,  etc.  Co  v.  Union  Trust  Co.  For  motion  to  open  interlocutory  de- 
79  Fed.  179,  24  C.  C.  A.  512.  cree,  see  Reeves  v.  Keystone  Bridge 

2  Northwestern  M.  L.  Asso.  v.  Co.  11  Phila.  498,  Fed.  Cas.  No. 
Keith,  77  Fed.  374,  23  C.  C.  A.  196.  11,661. 

5These    are    reviewable  by    motion        sRoemer  v.   Simon,   91    U.   S.    1.50, 

under    rule    85    ante.    §    1()92.     For-  23    L.    ed.    267;    Scott    v.    Blaine,    1 

merly  however  bv  petition:   Jenkins  Baldw.    287,    Fed.    Cas.    No.    12,525; 

v.   Eldridge.  3   Story,  299,  Fed.   Cas.  Scott  v.   Hore,   1    Hughes,   163,    Fed. 

No.  7.267.  Cas.  No.  12.535. 

'^See  .Tenkins  v.  Eldredge,  3  Storv,        nBuffiington   v.  Harvey,  95  U.   S. 

290,   Fed.   Cas.   No.   7.267;    Baker  "v.  99,   24   L.   ed.   381;   Roemer  v.  Bern- 

1016 


I'rocediire]  REHEARING.  S   1094    [c] 

in  accordance  with  established  principles.  12  The  grounds  for  rehearing  are 
analogous  to  those  at  law  which  constitute  the  basis  for  new  trial. is 
Death  of  the  judge  before  actual  delivery  of  his  opinion  is  ground  for  re- 
hearing. i<  A  showing  that  the  decision  is  in  conflict  with  an  express  statute 
is  also  ground. 15  Xewly  discovered  evidence  if  material  and  not  before 
obtainable  is  ground  for  rehearing  if  suliicient  to  uphold  bill  of  review  after 
the  term;i6  or  to  warrant  granting  of  new  trial  at  law.i"  Errors  of  law 
apparent  in  the  decree  or  upon  the  record  are  grounds  for  rehearing.is 
Excusable  non-attendance  of  counsel  at  the  hearing  may  be  ground  for 
granting  rehearing. is 

Rehearing  sought  by  a  defeated  complainant  upon  the  ground  of  want  of 
jurisdiction,  will  be  denied. 20  Errors  or  fault  of  counsel  in  arguing  the 
causei  do  not  constitute  ground  for  rehearing.  Xor  does  newly  discovered 
evidence  that  would  not  change  the  result, 2  or  that  is  merely  cumulative 
in  character, 3  or  that  might  bj'  diligence  have  been  discovered. <  An  appli- 
cation based  upon  the  same  facts  and  arguments  will  not  be  considered: 5 
nor  one  supported  only  by  counsel's  certificate  that  the  case  is  meritorious. 6 

Surprise  in  the  conduct  of  the  case  by  opposing  counsel  is  no  ground  for 
rehearing.i 

[c]     Time  for  filing  petition. 

As  pruvulcd  by  the  rule,  the  petition  will  not  lie  after  the  close  of  the 

heim,    13-2   U.    S.   103.   33   L.   ed.   277.  &  M.  1.  Fed.  Cas.  No.  3.061;   ITunter 

10  Sup.  C't.  Rep.   12:    American,  etc.  v.    [Marlboro.    2    Woodb.    &    M.    168, 

Co.  V.  Sheldon.  1  Fed.  870.  18  Blatchf.  Fed.  Cas.  No.  0,908:   Baker  v.  Whit- 

50:   Daniel  v.  Mitchel,  1   Story.  198;  ing.  1    Story,  218,  Fed.  Cas.  No.  786. 

Fed.   Cas.    No.   3.563:    American,   etc.  -ISIcCloskev   v.  DuBois.  9   Fed.   38, 

Co.  v.  Sheldon.  18  Blatchf.  50,  1  Fed.  20  Blatchf.  7:  Munson  v.  New  York, 

870.  11  Fed.  72,  20  Blatchf.  358:   Bentley 

i2Anierican  Co.  v.  Slieldon.  1   Fed.  v.  Phelps.  3  Woodb.  &   ^L  403.  Fed. 

870.  18  Blatchf.  50.  Cas.  No.   1,332. 

isRailway  R.  Co.  v.  North,  etc.  R.  SBaker   v.   Whiting.    1    Storv,   218, 

R.  20  Fed.  411.  Fed.    Cas.   No.   780:    Rogers   v.    Mar- 

i^Doggett  v.  Emerson,  1  Woodb.  &  shal.    13    Fed.    59,    3    McCrarv,    87; 

M.  1.  Fed.  Cas.  No.  3.961.  Witters  v.  Sowles.  32  Fed.  765;"  Acme 

isRailwav   Co.   v.   North,   etc.    Co.  Co.  v.  Carv   Co.   99   Fed.   500. 

20  Fed.  41 L  4Baker   v.    ,\'hiting.    1    Storv.   218, 

leBaker  v.  Whiting.  1   Story,  218.  Fed.   Cas.   No.   780:    Williman'tic  Co. 

Fed.  Cas.  No.  786.  v.  Clarke  Co.  24  Fed.  799:    Prevost  v. 

iTBentlev    v.    Phelps.    3   W.    &    M.  Gratz,   Pet.  C.  C.  364,  Fed.  Cas.  No. 

403.  Fed.  Cas.  No.   1.332;   Hunter  v.  11.400:    Central  T.   Co.  v.  Worcester 

Marlboro,   2   Woodb.  &  M.  168,   Fed.  Co.  91  Fed. -312:  Hicks  v.  Ferdinand. 

f"a.s.   No.   6,908.  20   Fed.    Ill;    Sowles    v.    Bank.    133 

is  American,  etc.  Co.  v.  Sheldon,  1  Fed.    846. 

Fed.  870.  18  Blatchf.  50.  sTufts   v.   Tufts.   3   W.    &    M.   426. 

isBlair  v.  Silver  P.  M.  93  Fed.  332.  Fed.  Cas.  No.  14,232. 

2  0Southern  D.  Co.  v.  Silva,  89  Fed.  e.Tenkins  v.  Eldredge.  3  Story,  209. 

418.  Fed.     Cas.     Xo.    7.267:     Fmerson     v. 

iRailway  R.  Co.  v.  North  etc.  Co.  Da  vies.  1  W.  &  M.  21.  Fed.  Cas.  No. 

26    Fed.   411;    Witters   v.    Sowles,   31  4.437:  Tufts  v.  Tufts.  3  W.  &  M.  426, 

Fed.    5,    24    Blatchf.    359:    Page    v.  Fed.  Cas.  No.  14.232. 

Holmes    Co.    2   Fed.    .333,   18   Blatchf.  Ti..verest    v.    Buffalo    Co.    22    Fed. 

118;   Doggett  v.  Emerson,  1  Woodb.  252,  22  Blatchf.  524. 

1017 


§  101)4   [dj 


EQUITY    PROCEDURE— (Coutinued). 


[Code   Fed. 


term  of  tlio  entry  of  decree;  lo  the  only  exception  being  in  cases  not  appeal- 
able.n  An  order  granting  a  rehearing  filed  at  a  snbsequent  term  is  void 
and  may  be  disregarded.!  2  A  petition  filed  too  late  may  however  sometimes 
be  treated  as  a  bill  of  review. is  The  authorities  hold  that  a  petition  filed 
iind  entertained  at  the  term  may  be  disposed  of  thereafter,  and  time  for 
appeal  only  then  begins  to  ran,i*  notwithstanding  the  rule  only  permits 
the  "granting"  of  rehearing  at  the  same  term.  When  the  court  keeps 
one  term  open  until  the  beginning  of  the  next,  the  petition  may  be 
filed  any  time  before  the  next  term. is  The  fact  that  part  of  a  fund  or- 
dered to  be  distributed  by  final  decree  is  still  in  court  at  the  next  term 
will  not  justify  petition  at  that  time. 1 6  Whei'e  the  parties  six  months  af- 
ter the  decree,  dismiss  their  appeal  taken  and  apply  for  rehearing  for  newly 
discovered  evidence,  they  are  guilty  of  inexcusable  laches.  1 7  Petition  for 
rehearing  during  the  term  may  be  entertained  although  appeal  has  been 
taken,  the  result  being  to  destroy  the  effect  of  the  appeal. i» 

[d]     Form  and  contents — procedure. 

The  petition  if  based  upon  new  evidence  should  state  its  nature,  and  also 
lie  supported  by  affidavits  expressly  made  part  of  the  petition,  setting  it 
forth.  1  The  petition  should  show  diligence  in  seeking  it  before,  and  its 
materiality.  2  The  diligence  should  be  shown  by  positive  testimony  and 
not  by  mere  assertion.s  The  application  is  not  ex  parte  but  should  be  on 
notice  to  the  adverse  party. ■*  It  must  be  by  petition  and  ordinary  motion 
will  not  suffice.5  The  petition  must  be  signed  by  counsel. •>  Verification 
should  not  be  before  a  notary  who  is  also  one  of  the  counsel.^     If  sought 


loBank  of  Lewisourg  v.  Sheffev, 
140  U.  S.  445,  35  L.  ed.  493.,  11  Sup. 
Ct.  Rep.  755;  Barker  v.  Stowe,  4  B. 
&  A.  4S5,  Fed.  Cas.  No.  995;  Brooks 
V.  R.  R.  Co.  102  U.  S.  107,  2«  L.  ed. 
92:  Poole  v.  Nixon.  9  Pet.  Append. 
770,  Fed.  Cas.  No.  11,270;  Easton  v. 
Houston,  etc.  Ry.  44  Fed.  7. 

iiNewman  v.  Moody,  19  Fed.  808; 
Wooster  v.  Handv,  21  Fed.  51 ;  Clarke 
V.  Threkeld.  2  Cranch,  C.  C.  408.  Fed. 
Cas.  No.  2.865. 

i2Sheffey  v.  Bank.  33  Fed.  318; 
Glenn  v.  Lucas,  43  Fed.  550. 

i3See  Hoffman  v.  Knox.  50  Fed. 
^89.  1  C.  C.  A.  535. 

i4New  Orleans  v.  Fisher,  91  Fed. 
585.  34  C.  C.  A.  15:  In  re  Worcester 
Co.'  102  Fed.  810,  42  C.  C.  A.  037: 
First  Nat.  Bank  v.  Woodrum,  80 
Fed.  1004;  Goddard  v.  Ordway,  101 
U.  S.  745.  25  L.  ed.  1040;  Aspen.  Co. 
v.  Billings.  150  U.  S.  31,  37  L.  ed. 
'98G.  14  Sup.  Ct.  Rep.  4;  Giant  P.  Co. 
v.  Cal.  P.  Co.  5  Fed.  197,  6  Sawy. 
.527.  But  see  Glenn  v.  Noonan,  43 
Fed.   103,  550. 


isFirst  N.  Bk.  v.  Woodrum,  86 
P>d.  1004. 

lellalsted  v.  Forest  H.  Co.  109  Fed. 
820. 

iTNorton  v.  Walsh,  49  Fed.  769. 

isVoorhees  v.  Noye  M.  Co.  151  U. 
S.  135.  38  L.  ed.  101^  14  Sup.  Ct.  Rep. 
295. 

lAllis  V.  Stowell,  85  Fed.  481, 
Barker  v.  Stowe,  4  B.  &  A.  485.  Fed. 
Cas.  No.  995;  McLeod  v.  New  Albany. 
06  Fed.  378,  13  C.  C.  A.  525.  It  is 
also  proper  to  state  such  evidence  by 
supple'nental  bill  or  answer  accom- 
panying the  petition.  Baker  v.  Whit- 
ing.  1   Storv,  218,  Fed.  Cas.  No.  786. 

"2Gillette'v.  Bate  R.  Co.  12  Fed. 
108; 

3 Page  V.  Holmes  Co.  2  Fed.  330. 
IS  Blatchf.  118;  Hicks  v.  Otto.  85 
Fed.  728;  Allis  v.  Stowell,  85  Fed. 
481. 

4Giant  P.  Co.  v.  Cal.  V.  Co.  5  Fed. 
197. 

sHarman  v.  Lewis.  24  Fed.  530. 

sAllis  v.  Stowell,   85   Fed.  481. 

nbid. 


ff 


1018 


Procedure]  PROPER  FINAL  PKOCKSS  IX   EQUITY.  i    1090 

because  of  the  excusable  nonattendance  of  counsel  it  should  be  accompanied 
by  a  showing  of  a  meritorious  defense.*  The  usual  practice  is  to  obtain 
and  serve  with  a  copy  of  the  petition,  an  order  upon  the  opposite  party 
to  show  cause  at  the  next  rule  day  why  it  should  not  be  granted.  The 
matter  should  then  be  heard  on  the  answer  to  the  petition  or  aflidavits 
in  opposition  and  an\'  briefs  filetl.s 

[e]     Effect  of  filing  petition  and  of  granting  it. 

The  filing  of  the  petition  will  suspend  the  operation  of  a  docrcei-  and 
•destroy  the  effect  of  an  appeal  already  taken^s  and  the  finality  of  tlie  decree 
for  purposes  of  appeal. !■*  Upon  granting  petition  for  rehearing  of  an  inter- 
locutory decree,  the  court  should  set  aside  its  former  decree:  altimii;!! 
the  mere  reopening  of  a  case  after  interlocutory  decree,  on  petition  for  re- 
hearinir  to  let  in  lunvly  discovered  evidence,  should  perhaps  not  be  accom- 
panied by  an  order  vacating  the  interlocutory  decree.is 

§  1095.     Proper  process  to  enforce  orders  and  decrees. 

Unless  otherwise  provided  in  these  rules,  or  specially  ordered 
hy  the  circuit  court,  a  writ  of  attachment,  and,  if  the  defendant 
cannot  be  found,  a  writ  of  sequestration,  or  a  writ  of  assistance  to 
.enforce  a  delivery  of  possession,  as  the  case  may  require,  shall  be 
the  proper  process  to  issue  for  the  purpose  of  compelling  obedience 
to  any  interlocutory  or  final  order  or  decree  of  the  court. 
Part  of  the  7th  equity  rule,  promulgated  March,  1842. 

The  rule  also  provides  that  subpoena  is  the  proper  mesne  process. n 
deneral  statutory  provisions  as  to  the  form  and  amendment  of  Federal 
process  and  the  power  of  Federal  courts  to  issue  various  writs  are  given  in 
.-another  chapter.2  0 

^  1096.     Proper  final  process  in  equity. 

Final  process  to  execute  any  decree  may,  if  the  decree  be  solely 

sBlair  v.   Silver  P.  Mines,  03  Fed.  isVoorhees  v.  Noye  M.  Co.  151  U. 

^32.  S.  135.  38  L.  ed.  101.  14  Sup.  Ct.  Rep. 

sSee  Giant   P.   Co.   v.   Cal.   V.  Co.  295. 

.5  Fed.   107.  where  a  Supreme  Court  KBrookett  v.  Brockett,  2  How.  239, 

justice  heard  the  case.     But  motion  11  L.  ed.  251:  R.  R.  Co.  v.  Bradleys. 

for  leave  to  file  the  petition  is  some-  7  Wall.  575.  10  L.  ed.  274;   Andrew.s 

limes  used:    Moelle  v.  Sherwood,  148  v.   Thum.  64   Fed.    149,    12   C.    C.    A. 

T.   S.  21.  37   L.  ed.  350,   13  Sun.  Ct.  77;  Kinman   v.  Wester  Mfg.  Co.  170 

Rep.    42f).      In    many    districts   there  V.  S.  678.  42  L.  ed.  1104.  18  Suj).  Ct. 

are  local   niles  governing  the  proce-  Rep.   786. 

.dure  isSee  Rogers  v.  Marshall,   15  Fed. 

i^'urockett  v.  Brockett.  2  How.  239.  193,  4  McCrary.  307. 

11    L.  ed.  251:    Aspen  Co.  v.  Billings,  iflAnte.  §  068. 

150  V.  S.  36.  37  I.,  ed.  988.  14  Sup.  Ct.  20Ante.   §   836  843. 
Rep.  4:   Rotors  v.  Marshall.  12  Fed. 
-G14. 

1019 


§   10i)6   [a]  EQUITY   PKOOEDUKE — (Continued).  [CoJc  Veil. 

for  the  payment  of  money,  be  by  writ  of  execution,  in  the  form 
used  in  tlie  circuit  court  in  suits  at  common  law  in  actions  of  as- 
sumpsit. If  the  decree  be  for  the  performance  of  any  specific  act, 
as,  for  example,  for  the  execution  of  a  conveyance  of  land  or  tlie 
delivering  up  of  deeds  or  other  documents,  the  decree  shall,  in 
all  cases,  prescribe  the  time  within  which  the  act  shall  be  done,  of 
which  the  defendant  shall  be  bound,  without  further  services,  to  take 
notice  ;''^  and  upon  affidavit  of  the  plaintill',  liled  in  the  clerk's  office, 
that  the  same  has  not  been  complied  with  within  the  prescribed  tiiin', 
the  clerks  shall  issue  a  writ  of  attachment  against  the  delin(iu(^nt 
party,  from  which,  if  attached  thereon,  he  .shall  not  be  discharged, 
unless  upon  a  full  compliance  with  the  decree  and  the  payment  of 
all  costs,  or  upon  a  special  order  of  the  court  or  of  a  judge  thereof, 
upon  motion  and  affidavit,  enlarging  the  time  for  the  performaiue 
thereof.  If  the  delinquent  party  cannot  be  found,  a  writ  of  so- 
questration  shall  issue  against  his  estate  upon  the  return  of  non  est 
invcMitiis,  to  compel  obedience  to  the  decree. ^^^  ^^^ 
8th  equity  rule,  promulgated.  March.  1842. 

[a]  In  general. 

'Ihero  are  several  statutory  provisions  respecting  the  execution  of  Fod- 
C'lal  jiulgnients  and  decrees  applicable  bolli  at  law  and  in  equity.  giv*!i  in 
a  subsequent  ehapter.5  With  some  few  exceptions  a  Federal  court  is  not 
empowered  to  issue  process  outside  its  own  district  and  this  applies  to  pro- 
cess of  executions  and  often  final  process  to  enforce  its  decrees."  But  equity 
usually  acts  in  personam  and  not  in  rem,  and  though  land  or  other  propeity 
to  be  affected  by  its  decree  is  beyund  the  jurisdiL-tion,  it  will,  by  constraJMt 
upon  the  person  of  the  defendant,  compel  performance  of  the  act  necessary 
to  render  its  decree  efi'ective.s  It  has  been  held  that  upon  decree  for  pay- 
ment of  money  supplementary  proceedings  under  the  State  law  may  be  bad 
since  available  upon  Federal  judgment  at  law  in  assumpsit. 9 

[b]  Bill  to  enforce  decree  in  equity. 

A  supplementary  bill  in  equity  is  often  necessary  to  enable  parties  to 
procure  the  fruits  of  a  decree  in  equity  as  well  as  of  a  judgment  at  law. 

3See  ante,  §  1091.  Lewis  v.  Darling.   16  How.   13.   14   L. 

sPost.  §§  186.5  et  seq.  ed.     819:     Xorthern.    etc.    R.    R.    v. 

6See  post,  §  1865.  Michigan.   C.   R.  R.   15  How.   24:5.   14 

'Watkins  v.   Holman,    16   Pet.    57.  L.  ed.  674:   Booth  v.  Clarke,  17  H  )w. 

10   L.    ed.    873;     Booth   v.    Clark,    17  .332.   15  L.  ed.   164:    Corbett  v.  Nut. 

How.  333.  15  L.  ed.  164.  10  Wall.  475.   19  L.   ed.  976;    Phelps 

sMassie   v.    Watts.   6    Cranch.    158.  v.  McDonald,  99  U.  S.  308,  25  L.  ed. 

3   L.   ed.    181  ;    Watts    v.    Waddle.    6  473. 

Pet.   401,   8   L.   ed.   437;    Watkins   v.        oSage  v.  St.  Paul  Ry.  47  Fed.  3. 
Holman,   16  Pet.  57,   10  L.   ed.   873; 

1020 


Procedure]  ENFORCEMENT    OF    ORDERS.  §   1098 

B\U  to  carry  a  decree  into  execution  will  always  lie  where  farther  decree 
Lecomes  necessary ;i 3  and  is  maintainable  in  the  same  or  in  another 
■court. 14  Bill  of  revivor  may  be  necessitated  by  the  death  of  parties. is 
i^iipplemental  bill  may  be  necessitated  by  transfer  of  complainant's  rightis.16 
So  a  decree  in  equity  for  the  payment  of  money,  although  debt  may  be 
maintained  thereon,i'  may  be  the  basis  of  creditor's  bill  and  receivership 
proceedings,! s  or  statutory  supplementary  proceedings.!''  Aid  in  tlie  en- 
forcement of  a  decree  may  however  be  refused  for  inequity  therein. 20  Bills 
of  this  character  are  ancillary  and  maintainable  regardless  of  the  juris- 
■dictional  citizenship  of  the  parties. 1 

§  1097.     Writ  of  assistance  to  compel  delivery  of  possession. 

When  any  decree  or  order  is  for  the  delivery  of-  possession,  upon 
proof  made  by  affidavit  of  a  demand  and  refusal  to  obey  the  decree 
or  order,  the  party  prosecuting  the  same  shall  be  entitled  to  a  writ 
of  assi.'stance  from  the  clerk  of  the  court. 
9th  equity  rule,  promulgated  March,  1842. 

The  writ  of  assistance  is  an  appropriate  process  against  parties  bound 
by  decree  who  refuse  to  surrender  possession.*  The  power  to  act  under  this 
writ  extends  only  to  parties  to  suit  and  those  coming  in  imder  them  after 
■suit  commenced.^  It  is  commonly  used  to  put  the  purchaser  at  foreclosure 
•sale  into  possession. 6 

§  1098.  Enforcement  of  orders  by  or  against  persons  not  parties. 
Everv  person  not  being  a  party  in  any  cause,  who  has  obtained  an 
•order,  or  in  whose  favor  any  order  shall  have  been  made,  shall 
loe  enabled  to  enforce  obedience  to  such  order  by  the  same  process 
as  if  he  were  a  party  to  the  cause;  and  every  person  not  being  a 
partv  in  any  cause  against  whom  obedience  to  any  order  of  the  court 

isThompson  v.  Maxwell,  95  U.  S.  M.   13«  U.  S.  561,  34  L.  ed.   1005,  11 

■.399   24  L   ed.  481.  Sup.  Ct.  Rep.  402,  Corapton  v.  Jcsup, 

i4Shie]ds  v.  Thomas,  18  How.  262,  68  Fed.  26.3.  15  C.  C.  A.  397. 
15  L.  ed.  36S.  lAnte.    S   3   [d]    et  seq. 

isSee  Rutledge  v.  Waldo,  94  Fed.  aprinted  "or"  in  published  rules. 
265.     Ante,   §  960.  'iGormley  v.  Clark,   134  U.  S.  350, 

i6Rw   Root   V.   Woolworth,   150  U.  33  L.  ed.  909.  10  Sup.  Ct.  Rep.  5.)4; 

■S.   411.   37   L.   ed.   1123.   14  Sup.   Ct.  Terrell   v.   Allison,  21    Wall.   289.  22 

Rop.   136.  L-   ed.    634;    Pratt    v.    Burr.    5    Biss. 

17 Pennington    v.    Cibson,    16  How.  36,  Fed.  Cas.  No.  11.372;   Lacassagne 

77     14   L.  ed.   847.      Compare   Corbin  v.  Chapuis,  144  U.   S.   125.   36  L.  ed. 

V    (Iraves.  27  Fed.  644.  371.  12  Sup.  Ct.  Rep.  662. 

isShainwald  v.  Lewis,  6  Fed.  766,         sComer  v.  Felton,  61    Fed.  7.35,   10 

7   Sawv     14S:    Con  pton   v.  .lesup,  68  C.  C.   A.  28;    Thomp.son  v.   Smith,   1 

Fed.    2V>3.   15    C.   C.    A.    397.  Dill.   458.   Fed.   Cas.   No.    13.977. 

i'.tSa<'e  v.  St.  Raul  Ry.  47  Fed.  3.        eTerrell   v.    Allison.   21    Wall.   289, 

20Lawrence   M.   Co.   v.  .Javnesville  22  L.  ed.  634.    See  ante,  §  841. [  ] 

1021 


J    1009  EQUITY  PROCEDURE— (Continued).  [Code   Fo.l. 

iiiav  be  enfoix-eil,  sliall  be  liable  to  tlie  same  process  for  on  forcing 
obedience  to  such  order  as  if  he  Avere  a  party  in  the  cause. 
lOth  equity  rule,  promulgated  March,  1842. 

§  1099.     Bill  of  review. 

Wlicn  the  term  of  the  rendition  of  final  decree  has  elapsed,  bill  of 
review  in  the  court  rendering  the  decree,  is  a  proper  remedy  for 
correction  of  error  apparent  upon  the  record;  or  for  procuring  a 
vacation  of  the  decree  upon  the  ground  of  newly  discovered  evi- 
denceJ^^"'^'^^  If  sought  upon  the  former  ground  the  bill  must  l)e 
filed  within  the  time  allowed  for  appealJ'^^-'^^i  If  sought  upon  the 
ground  of  newly  discovered  evidence,  the  granting  of  leave  to  file  the 
bill  is  matter  of  discretions^]  i^^'^  The  bill  should  show  performance 
of  the  decree  or  legal  excuse  for  nonperformance. f^®] 
Author's  sectiuu. 

[a]     Nature  of  remedy  by  bill  of  review. 

After  the  expiration  of  the  termio  of  entry  of  a  final  appealableii  decree,, 
remedy  for  error  therein,  other  than  clerical,  must  be  sought  by  appeal 
to  a  higher  tribunal  or  by  bill  of  review  before  the  same  court.  Bill  of  re- 
view is  maintainable  after  the  term  of  entry  of  final  decree  for  error  therein 
apparent  upon  its  face,i2  or  on  account  of  newly  discovered  evidence 
material  in  character,  that  could  not  earlier  have  been  discovered  with  due- 
diligence. is  Where  error  of  law  is  the  ground)  assigned,  this  must  be 
shown  from  the  pleadings,  proceedings  and  decree,  without  refer- 
ence to  the  evidence.i*  The  only  questions  open  are  those  upon  the 
face  of  tlie  record  without  the  evidence.is.  Nothing  else  can  avail 
the  party. 16  The  complainant  cannot  go  into  the  evidence  at  large  to  es- 
tablish error  in  the  decree. 1 7     Bill  of  review  is  maintainable  only  by  parties 

lolf    the    decree    is    nonappealable  Massie    v.    Graham,    3    McLean,    4i, 

petition  for  rehearing  may  lie  at  the  Fed.  Cas.   No.  9,263. 
next  term.     Ante.  §  1094.  i4  8helton  v.  Van  Kleeck,  106  U.  S. 

11  Whiting  V.  Bank.  13  Pet.  13.  10  53,1.  21   L.  ed.  209.   1   Sup.   Ct.  Rep. 

L.    ed.    .33.     See    O'Connor    v.    O'Con-  491  :    Putnam   v.    Day,    22    Wall.    65, 

nor.  142  Fed.  449  —  (CCA.)  .  22  L.  ed.  764. 

i^Clark  V.  Killian,  103  U.  S.   709,        isThonipson   v.  Maxwell,  95  U.   S. 

26  L.  ed.  607:   Osborne  v.  San  Diego,  397.  24  L.  ed.  481. 

etc.  Co.  178  U.  S.  32,  44  L.  ed.   966,        isWillaniette    Co.     v.     Hatch,     12.5 

20  Sup.  Ct.  Rep.  860.  U.   S.    7,   31   L.   ed.   629,   8   Sup.   Ct. 

isTlill  V.  Phelps,  101   Fed.  650,  41  Rep.   811;    Reed  v.    Stanly,    89   Fed. 

C.    C.    A.    569:    Beard    v.    Burts.    95  430. 

U.    S.   4.36.   24   L.    ed.   485;    Irwin   v.        iv Whiting  v.   Bank,  13  Pet.  14,  10 

Mevrose,  7  Fed.  533,  2  McCrary  244.  L.  ed.  33:  Kennedv  v.  Georgia  Bank,. 

The    rule    respecting  bills    of   review  8  How.  609,  12  L.'ed.  1209. 
goes  back  to  Lord  Bacon's  ordinance. 

1022 


Procedure] 


BILL    OF    REVIEW. 


§   lOOn   [bj 


lo  the  decree  or  their  privies; is  and  only  bj'  parties  aggrieved.i^  One  ac- 
cepting the  benefits  cannot  maintain  the  bill. 20  Strangers  to  the  decree 
must  proceed  by  supplemental  bill  in  the  nature  of  bill  of  review ;  1  or  by 
original  bill. 2  Bill  filed  by  a  stranger  is  not  a  bill  of  review. 3  During  the 
term  of  the  rendition  of  the  decree  newly  discovered  evidence  may  be  set 
up  by  a  bill  in  the  nature  of  a  bill  of  review.*  If  neither  error  of  law 
nor  new  evidence  oe  shown  the  bill  must  be  dismissed; 5  or  leave  to  file 
it  may  be  refused. 6 

[b]     Grounds  for  luaintaining  in  general. 

Bill  of  review  is  not  maintainable  to  a  consent  decree;!'  nor  to  a  com- 
promise decree  petitioning  land. 10  Nonjoinder  of  parties  plaintiff  is  not 
ground  for  bill  of  review  when  defedant  was  not  injuriously  affected  there- 
by.n  Fraud  in  obtaining  the  decree  is  ground  for  bill  of  review.12  The 
fact  that  a  judgment  at  law  in  which  a  decree  is  based  has  since  been 
reversed  is  ground  for  bill  of  review  to  set  aside  the  decree.i3  Error  of 
law  ceases  to  be  ground  for  the  bill  after  judgment  on  appeal. 1*  Decree 
entered  pursuant  to  the  Supreme  Court's  mandate  is  not  ground  for  bill 
of  review.15  Wh*>n  decree  is  entered  for  jjlaintifi"  though  the  bill  states 
no  ground  for  relief,  bill  of  review  is  a  proper  remedy. is  But  supposed 
error  in  the  construing  of  the  evidence  is  no  ground  for  bill  of  review; i" 
nor  error  resulting  from  misconception  of  the  evidence  or  the  conclusions 
deducible  therefrom. is  The  fact  that  a  law  in  accordance  with  which  the 
decree  was  made  has  since  been  declared  invalid  in  the  State  court,  has  been 


isLacassagne  v.  Chapuis.  144  U. 
S.  125.  36  L.  ed.  368.  12  Sup.  Ct.  Rep. 
6.50 :  Thompson  v.  Maxwell,  0.5  U. 
S.  .307.  24  L.  ed.  481. 

inVhiting  v.  Bank.  13  Pet.  14.  10 
L.  ed.  .33:  Brown  v.  White,  16  Fed. 
000.  4  AVoods.  614. 

20Hill  V.  Phelps.  101  Fed.  650.  41 
C.  C.  A.  569. 

iThompson  v.  Schenectadv  R.  R. 
110   Fed.  634. 

2Kingsburv  y.  Buckner,  134  U.  S. 
675.  33  L.  ed.  1047.  10  Sup.  Ct.  Rep. 
638. 

sCutter  v.  Iowa  AY.  Co.  06  Fed. 
777. 

4Whiting  v.  Bank.  13  Pet.  13,  10 
L.  ed.  33.  And  also  by  petition  for 
rehearing,  ante.  §  1004. 

5Purcell  V.  Miner,  4  Wall.  521.  18 
L.    ed.    435. 

eXic-kle  v.  Stewart.  Ill  V.  S.  776. 
28  L.  ed.  509.  4  Sup.  Ct.  Rep.  700. 

sThompson  v.  MaxweU,  05  U.  S. 
397,  24  L.  ed.  481. 


loibid. 

iiTliomas  v.  Harvev.  10  Wheat. 
152.  6  L.  ed.   287. 

12 Reed  v.  Stanlv,  89  Fed.  4.30: 
Pittsburg,  etc.  R.  R.  v.  Keokuk  B. 
Co.  107  Fed.  781,  46  C.  C.  A.  639; 
Terrv  v.  Commercial  Bk.  92  U.  S. 
456. "23  L.  ed.  620. 

13 Ballard  v.  Searls.  1.30  U.  S.  54. 
56.  32  L.  ed.  846.  0  Sup.  Ct.  Rep. 
418. 

I'iKingsburv  v.  Buckner.  134  U. 
S.  671.  .33  L.  ed.  1047.  10  Sup.  Ct.  Rep. 
638:  Franklin  S.  Bk.  v.  Taylor.  .5.3 
Fed.  854.  4  C.  C.  A.  .55:  Leslie  v. 
Urbana,  56  Fed.  762,  6  C.  C.  A.  111. 

I'Kimberly  v.  Arms.   40  Fed.   554. 

i«Ohio  R."  R.  V.  Central  T.  Co. 
1.33  U.  S.  8.3,  33  L.  ed.  561.  10  Sup. 
Ct.  Rep.  235. 

I'Annes  v.  Kimberlv,  136  U.  S. 
620.  34  L.  ed.  557.  10  Sup.  Ct.  Rep. 
1064. 

is.Tourolomon  v.  Ewing,  85  Fed. 
103.  29  C.  C.  A.  41. 


1023 


§    1099   [c]  EQUITY  PROCEDURE — (CoBtinued).  [Code   Fed. 

held  no  ground  for  bill  of  review.is     And  the  absence  of  counsel  from  the 
hearing  is  not  ground. 20 

[c]  —  newly  discovered  evidence. 

The  evidence  must  be  new  or  else  such  as  the  party  could  not  by  dili- 
gence have  known. <  The  failure  to  produce  the  testimony  earlier  must 
be  accounted  for.5  The  new  evidence  must  be  controllings  and  not  be  nuM-e- 
ly  cumulative;'  or  mere  impeachment  of  witnesses ;S  or  evidence  that 
should  have  been  known ;»  or  evidence  merely  increasing  doubt  as  to  ihe 
real  truth.  10  Where  the  alleged  new  matter  relates  to  the  proceedings  on 
the  sale  under  a  foreclosure  decree  this  cannot  have  any  effect  on  the  de- 
cree and  hence  bill  of  review  thereto  should  be  dismissed. n  A  change  in  a 
legal  rule  resulting  fi'om  a  new  decision  of  the  Supreme  Court  is  not  new 
matter  justifying  bill  of  review  thereon.'^ 2 

[d]  Time  for  filing. 

The  rule  is  established  that  a  bill  of  review  must  ordinarily  be  filed 
within  the  time  for  taking  an  appeal  where  the  review  sought  is  not 
founded  on  newly  discovered  evidence.io  Thus  where  error  of  law  is  the 
ground  upon  which  bill  of  review  is  based,  it  must  be  filed  within  that 
time.16  But  the  fact  that  an  appeal  was  pending  during  part  of  the 
time  after  decree,  may  excuse  the  filing  of  bill  of  review  within  the  two 
years;!"  although  the  bill  should  be  filed  promptly  thereafter. is  Attempt- 
ed appeal  to  the  Supreme  (]ourt  of  the  United  States  in  a  case  properly 

i9Hoffman   v.    Knox,   50   Fed.   481,  uShelton   v.   Van    Kleeck,    100   U. 

1  C.  C.  A.  53.5.  S.  5.35,  27  L.  ed.  269.  1  Sup.  Ct.  Rep. 

2  0Tilghman  v.  Werk,  39  Fed.  680.  491. 

4Paibber  Co.  v.  Goodyear.  9  Wall.  i2Ti]ghman  v.  Werk,  39  Fed.  680. 

806.    19   L.   ed.  828;    Beard  v.   Burts,  iwTorgenson     v.     Young,    136    Fed. 

95  U.   S.  436,  24  L.  ed.  485;   Society  381,  and  cases  cited, 

of  Shakers   v.  Watson,   77   Fed.   512,  leThomas    v.    Harvey,    10    Wheat. 

23  C.  C.  A.  -363.  151.  6  L.  ed.  287;    Kenedv  v.  Bank, 

5Easlev  v.  Kellom.  14  Wall.  281,  8  How.  609,  12  L.  ed.  1209;  Ensmin- 
20  L.  ed.  890.  The  question  of  dil-  ger  v.  Powers,  108  U.  S.  302,  27  L. 
igence  is  a  preliminary  one  to  be  ed.  732,  2  Sup.  Ct.  Rep.  043;  Cham- 
disposed  of  on  the  application  for  berlain  v.  Peoria  Ry.  118  Fed.  32,  55 
leave  to  file  the  bill  and  no  issue  C.  C.  A.  54;  Pacific  R.  R.  v.  Mis- 
need  be  joined  by  pleadings:  Kelley  souri  Rv.  Co.  12  Fed.  641,  2  McCrary, 
V.  Diamond,  etc.  Co.  142  Fed.  8;i8.  227;    McDonald   v.   Whitney,  39   Fed. 

eFreeman  v.  Clay,  52  Fed.  1,  2  C.  467:    Reed    v.    Stanly,    80    Fed.    433; 

C.  C.  A.  587.  Taylor   v.  Charter  6.  I.  Co.    17   Fed. 

7 Southard  V.  Russell,  16  How.  569.  567,    3    McCrary,    487;    Copeland    v. 

14    L.    ed.    10.52    (Unless    perhaps    in  Brunning,  104  Fed.  169,  (six  months' 

writingK  time  for  appeal);  also  Reed  v.  Stan- 

sSouthard  v.  Russell,  16  How.  569,  ley,  97   Fed.  521.  38  C.  C.  A.  331. 

14  L.  ed.  1052.  iTEsminger   v.    Powers,    108    U.    S. 

9Societv  of  Shakers  v.  Watson,  77  303.   27   L.  ed.   732,  2   Sup.   Ct.   Rep. 

Fed.   512,'  23   C.   C.    A.   263;    Dumont  643. 

V.  Dcs  M.  V.  R.  R.  131  U.  S.  clx,  25  isCentral  &  Co.  v.  Grant  L.  Wks. 

L.  ed.  520.  135  U.  S.  227,  34  L.  ed.  97,  10  Sup. 

loSocietv    of    Shakers   v.   Watson,  Ct.  Rep.  730. 
77    Fed.   512,   23   C.   C.   A.   263. 

1024 


Procedure]  BILL  OF   REVIEW.  §   1099   [f] 

appealable  to  the  circuit  court  of  appeals  lias  been  held  not  to  excuse  the 
tiling  of  bill  of  review  within  the  six  months  prescribed  for  appeals  to  the 
Jatter  court. 19  Bill  of  review  will  not  lie  for  errors  of  law,  after  judg- 
ment on  appeal; 20  nor  to  review  a  decre  entered  in  pursuance  of  the  Su- 
preme Court's  mandate;!  nor  can  the  lower  court  grant  a  bill  of  review 
•during  the  pendency  of  an  appeal. 2  Nine  years"  delay  is  fatal  to  bill  of 
review. 3  Where  decree  is  against  absent  parties  served  only  by  publication 
it  only  becomes  final  at  the  end  of  a  year  and  the  time  for  bill  of  review 
runs  from  that  time.* 

[e]     Performance  of  decree  as  condition  precedent. 

The  general  rule  is  that  a  decree  must  first  have  been  performed  and 
costs  paid  before  bill  of  review  will  lie."  However,  this  rule  is  administra- 
tive and  not  jurisdictional  and  in  a  proper  case  may  be  disregarded. s  Pov- 
erty, want  of  assets,  or  otlier  inability  will  exuce  performaiice.9 

[fj     Form  and  proceedings  upon  bill  of  review. 

A  petition  for  rehearing  filed  too  late,  may  perhaps  be  treated  as  bill  of 
review. 12  Leave  must  be  obtained  to  file  bill  of  review  for  newly  dis- 
covered evidence.i3  But  a  bill  for  error  of  law  may  be  filed  without  leave.i* 
unless  the  party  is  unable  to  aver  performance  of  the  decree,  in  which  case 
■application  should  be  made  upon  notice.i5  Original  bill  in  the  nature  of 
bill  of  review  may  be  filed  without  leave;i6  but  not  supplemental  bill.i' 
Where  the  cause  has  been  appealed  and  there  decided,  the  appellate  court 
must  also  grant  leave; is  though  the  leave  there  granted  is  usually  formal 
and   does  not   prevent   the  lower  court  afterwards  exercising  its  own   dis- 

isBlythe  Co.  v.  Hincklev,  111  Fed.  sDavis  v.  Speidon.  104  U.  S.  84.85, 

827,   49   C.   C.   A.  647.         "  26  L.  ed.  660. 

20Southard     v.    Russell,    16     How.  i2Knox    v.    Columbia    Co.    42    Fed. 

570,    14    L.    ed.    1052;    Kingsbury    v.  378    (reversed  50    Fed.   484,    1    C.    C. 

Buckner.    1.34   U.   S.   671.  672,   .33   L.  A.   5.35.) 

ed.    1047,    10   Sup.    Ct.    Rep.    638;    In  isRicker  v.  Powell,   100  U.  S.  107, 

re  Camewell   etc.  Co.  73  Fed.  911,  20  25   L.  ed.   527.     This   is   so  although 

■C.  C.  A.   111.  other  grounds  are  also  stated;  Arms 

iKimberlv    v.    Arms.    40   Fed.    554,  v.    Kimherly,    136    V.    S.    629,    34    L. 

2Emsmin"ger  v.  Powers.   108  U.   S.  ed.  557.   10  Suj).  Ct.  Rep.   10()4. 

302,   27    L.   ed.   732.   2   Sup.  Ct.   Rep.  i4Davis    v.   Speiden.   104  U.   S.   87, 

643;   Kimberlv  v.  Arms.  40  Fed.  548.  26    L.    ed.    660:     Copeland    v.    Brun- 

sHendrvx  v.  Perkins.  114  Fed.  801,  ing.  104  Fed.  169. 

32  C.  C.  A.  435.     See  also  Tilghman  ir.Waillemet  Co.  v.  Hatch,  19  Fed. 

V.  Werk,  39  Fed.  680;   Duncan  v.  At-  ,349,  9  Sawy.  643. 

Irintic  R.  R.   88   Fed.  840.  itiRitchie    v.    Burke,    109    Fed.    16; 

■» Beach   v.   Mosgrove,    16    Fed.    .305,  Xorthern.  etc.  Co.  v.  Young,  12  Fed. 

4    McCrary.    50.  SO!).    11     Biss.    33'1. 

TRicker  v.   Powell.    100   C.  S.   .108,  i 'Thompson     v.     Schenectady     Ry. 

25  L.   ed.   527;    Kimberley   v.    Arms,  119    Fed.   6.34. 

40    Fed.   555;    Hofimaii    v".    Knox,   50         ispittsburg,  etc.   R.   R.   v.   Keokuk 

Fed.    492.    1    C.   C.   A.   585;    Miller    v.  B.  Co.  107  Fed.  781.  46  C.  C.  .\.  6.39; 

Clark,  47   Fed.    851.  Southard  v.   Russell,  16  How.  .571.  14 

sDavis  V.  Speiden,  104  IT.  S.  84.  85,  L.    ed.    10.52:    Society   of    Shakers    v. 

26  L.  ed.  660:  ^^■alla^let  Co.  v.  Hatch.  Watson,  77  Fed.  512,  23  C.  C.  A.  263. 
19  Fed.  349,  9  Sawy.   043. 

Fed.  Proc— 65.  1025 


§   1000    [g]  EQUITY  TROCEDURE— (Continued).  [Code  Fed. 

tretion  in  permitting  i\ui  filing  of  the  bill. 1 9  If  laches  clearly  appear  the 
appellate  court  will  refuse  leave  on  the  ground. 20  The  evidence  in  the  orig- 
inal cause  need  not  be  set  forth  in  the  bill  except  to  show  its  relevancy 
to  the  new  matter,i  and  is  surplusage  which  may  be  stricken  out  on  motion 
or  made  ground  of  special  demurrer. 2  All  parties  to  the  original  decree 
should  be  parties  to  the  bill  of  review.^  A  bill  in  the  nature  of  a  bill  of 
review  may  introduce  new  parties. 4  The  opposite  party  may  demur  to  bill 
of  review  and  such  demurrer  does  not  admit  the  truth  of  facts  averred  in- 
consistent with  the  decree.^'  Where  demurrer  is  sustained  the  bill  will  be 
dismissed. 6  Demurrer  will  raise  the  point  that  a  bill  is  too  late  if  ap- 
parent on  the  face  thereof,  otherwise  the  contention  should  be  raised  by 
answer."  Answer  and  replication  are  proper  to  a  bill  of  review  based  upon 
new  evidence.8  Performance  of  the  decree  should  be  averred  or  legal 
excuse  therefor; 9  although  failure  to  make  such  averment  has  been  held 
no  ground  of  demurrer  but  only  of  motion  to  stay.  10 

[gj     Discretion  in  allowing. 

^A'lK•re  the  bill  is  sought  because  of  newly  discovered  evidence  leave  to 
file  the  same  rests  in  the  sound  discretion  of  the  court,i<  and  this  rule 
holds  Avhere  that  ground  is  joined  with  the  contention  of  error  of  law.is 
This  discretion  is  to  be  exercised  sparingly. 1 6  Even  though  the  new  evi- 
dence would  change  the  decree,  the  court  may  refuse  to  reopen  the  decree 
if  productive  of  mischief  to  innocent  parties.  1 7 

[h]     Effect  of  granting  or  denying. 

A  decree  sustaining  demurrer  to  a  bill  of  review  and  dismissing  it,  leaves 
the   original   decree  in   full   force   and   effect. is 

i9Board,  etc.  v.  Deposit  Bank,  120  TCopeland    c.    Bruning.     104     Fed. 

Fed.   165:    Sevmour  v.  White   Co.  92  1G9. 

Fed.  115,  34  C.  C.  A.  240.     See  Bos-  sBuffington    v.    Harvev.    95    U.    S. 

ton,  etc.  R.  R.  v.  Bemis  Co.  98  Fed.  103.  24  L.  ed.  381. 

121.   38   C.   C.   A.   661.  sKimberly   v.    Arras.   40    Fed.    54S. 

2  0Boston   R.    R.    v.    Bemis   Co.    98  136  U.  S.  629.  34  L.  ed.  557,  10  Su;). 

Fed.  121,  38  C.  C.  A.  601.  Ct.  Rep.  1064.     ' 

iDavis   V.    Speiden.    104    U.    S.    87,  lOMiller  v.  Clark,  47  Fed.  850. 
26  L.  ed.  660:    Copeland  v.  Bruning,  i^Thomas    v.    Harvev,    10    Wheat. 
104    Fed.    169:    Wallamet    I.    Co.    v.  151.  6  L.  ed.  287 :  Rubber  Co.  v.  Good- 
Hatch.   19    Fed.   349.   9    Sawy.  643.  vear,    9    Wall.    806.    19    L.    ed.    828: 

2Buffington    v.    llarvev.    95    U.    S.  Ricker  v.  Powell,   100  U.  S.   107,  25 

99.  24  L.  ed.  381.              '  L.  ed.  527:  Camp  &  M.  Co.  v.  Parker. 

3Bank  of  United  States  v.   White,  121   Fed.   196. 

8    Pet.    268,    8    L.    ed.   938.      But   see  i5Ricker  v.  Powell,  100  U.  S.   lOS. 

King  V.  Dundee.  28  Fed.  33,  dispens-  25    L.    ed.    527;    Kimberly    v.    Arms, 

ing   with   formal    parties.  40  Fed.  558. 

nVhiting  V.   Bank,   13  Pet.   13,  10  leCraig   v.    Smith.    100   U.    S.   234, 

L.  ed.   33.  25  L.   ed.   577. 

sShelton  v.  Van  Kleeck,  106  U.  S.  i^Ricker  v.  Powell,  100  U.  S.  107. 

534,  27   L.   ed.   269,   1    Sup.   Ct.  Rep.  25  L.  ed.  527. 

491.  I'^Buffington    v.    Harvey,   95   U.    S. 

eBuffinsrton  v.  Harvey,  95  U.  S.  99,  99.  24  L.  ed.  381. 
24  L.  ed.  '381. 

1026 


I'roceiliire]  FINAL  RECORD  WHAT  TO  CONTAIN.  J   1100 

§  1100.     Final  record  what  to  contain. 

In  equity  .  .  .  causes,  only  the  process,  pleadings,  and  de- 
cree and  such  orders  and  memorandums  as  may  be  necessary  to  show 
the  jurisdiction  of  the  court  and  regularity  of  the  proceedings,  shall 
be  entered  upon  the  final  record. 

R.  S.  §  750  U.  S.  Comp.  Stat.  1901.  p.  501. 

This  provision  was  carried  forward  into  the  Kf vised  Statutes  from  an  act 
of  1853.2     It  also  specifies  admiralty  causes.* 

3  Act   Feb.  26.   1853,  c.  80,   §   1,  10 
Stat.    163. 

<Post,  §  1289. 


1027 


CHAPTER  32. 

EQUITY   PROCEDURE    (CONTINUED)— INJUNCTION'S   AND   RECEIV- 
ERS. 

■^  1110.     Injunction   and  receivership  provisions   in  other  chapters. 

§  1111.     Judges  authorized   to  grant  injunctions. 

§  1112.  Special  interlocutory  injunctions  only  grantable  on  notice  and 
hearing. 

5;  1113.     Injunction  bond. 

§  1114.     Temporary  restraining  order  may  issue. 

§  1115.     Injunction  in  vacation  to  continue  only  to  next  term. 

§  1116.     Injunction  to  stay  proceedings  at  law  how  obtained. 

§  1117.     Enforcement  and  A'idlation  of  injunction — attachment. 

S  1118.     Interlocutory   State  injunction   against  national  banks   forbidden. 

§  1119.     Injunction  by  national  bank  to   stay  receivership  proceedings. 

i§   1120.     Injunction   against  tax  assessment  or  collection  forbidden. 

:§  1121.  Injunction  by  district  judge  to  stay  proceedings  on  distress  war- 
rant. 

§  1122.     — revisory  proceedings  before  circuit  justice  or  judge. 

§  1123.     Persons  ineligible  to  act  as  receiver. 

§  1124.  Receiver  suable  without  leave  of  appointing  court,  but  subject 
to  its  control. 

§  1125.  Federal  receiver  must  manage  property  as  required  by  valid 
State  laws. 

§  1126.  Railroad  receivers  not  to  reduce  wages  except  on  notice  to  em- 
ployees and  a   hearing. 

§  1110,     Injunction  and  receivership  provisions  in  other  chapters. 

Elsewhere  will  be  found  provisions  respecting  the  right  of  appeal 
to  the  circuit  court  of  appeals  from  interlociitorv  injunction  and 
receivership  orders  ;^  the  effect  of  appeal  as  a  supersedeas ;-  the 
])Ower  of  Federal  courts  to  issue  injunction  against  State  courts;"' 
the  effect  of  removal  upon  injunction  issued  by  a  State  court;* 
the  venue  of  injunction  suits  against  the  comptroller  by  a  national 
hank  :^  the  issuance  of  injunction  to  restrain  unlawful  enclosure 
of   pttblic   lands  ;^    injunction    against    patent'    or   copyright^    in- 

i.Ante.    §    78.  5 Ante.    §    41.5. 

2Post.    §    2012.  6 Ante.  §  215. 

3 Ante.   §  20.  ^Post,    §    1170. 

■iPost.    §    1153.  8 Post,   §    1182. 

1028 


Procedure]        JUDGES  AUTHORIZED  TO  GRANT  INJUNCTIONS.   §   1111    [b] 

fringemeut.  Statutory  provisions  respecting  receivers  of  public 
moneys,  or  of  tiie  land  office,  or  of  national  banks,  are  not  witli  the 
purview  of  this  work.  The  bankruptcy  laws  contain  provisions  re- 
garding receivers.^  Interlocutory  receivership  orders  are  appeal- 
able, i"  Court  clerks  and  their  deputies  should  not  be  appointed 
as  receivers.^  ^ 

Author's  section. 

§  1111.     Judges  authorized  to  grant  injunctions. 

Writs  of  injunction  may  be  granted  by  any  justice  of  the  Supreme 
Court  in  cases  where  they  might  be  gra.nted  by  the  Supreme  Court ; 
and  by  any  judge  of  a  circuit  court  in  cases  where  they  might  be 
granted  by  such  court.  But  no  justice  of  the  Supreme  Court 
shall  hear  or  allow  any  application  for  an  injunction  or  restraining 
order  in  any  cause  pending  in  the  circuit  to  which  he  is  allotted, 
elsewhere  than  within  such  circuit,  or  at  sucii  place  outside  of  the 
same  as  the  parties  may  stipulate  in  writing,  except  wlien  it  cannot 
be  heard  by  the  circuit  judge  of  tlie  circuit  or  the  district  judge  (*f 
the  district.  And  an  injunction  shall  not  be  issued  by  a  district 
judge,  as  one  of  the  judges  of  the  circuit  court,  in  any  case  where 
a  party  has  had  a  reasonable  time  to  apply  to  the  circuit  court  for 
the  writ;  nor  shall  any  injunction  so  issued  by  a  district  judge  con- 
tinue longer  than  to  the  circuit  court  next  ensuing,  unless  so  or- 
dered by  the  circuit  court. 

R.  S.  §  719,  U.  S.  Comp.  Stat.  1901,  p.  581. 

[aj     History  of  provision. 

The  first  enactment  upon  this  subject  was  in  1793,i5  In  1807  district 
judges  were  first  empowered  lo  issue  the  writ  out  of  term. 1 6  The  law  as 
at  present  framed  was  enacted  in  1872.1" 

[b]     Granting  of  injunction  by  Supreme  Court  justice. 

Application  maj^  be  made  to  a  circuit  justice  outside  the  circuit  if 
neither  the  circuit  judge  of  the  circuit  nor  the  district  judge  of  the  dis- 
trict can  hear  it  for  sickness  or  other  cause. is  In  one  case  arising  in  the 
Kentucky  district  a  circuit  justice  of  another  circuit  heard  such  an  applicit- 

flSee  appendix  II.                                         iTAct  June  1.  1872.  c.  255.  12  Stat. 

lOAnte.  §  78.  197.      See  al.so   Act   Apr.   10.   181)9.  <•. 

11  Ante.   §  60.3.  22.  11   Stat.  44. 

isAct    Mar.   2,  1793,   c.   22,   §   5,   1         i^Searles    v.    Jacksonville,    etc.    H. 

Stat.  .334.  R.  2  Woods,  621,  Fed.  Cas.  No.   12,- 

16 Act  Feb.  13,  1807,  c.  13,  2  Stat.    586. 
418. 

1029 


§   1111   [c]  EQUITY  PROCEDUIIE— (Continued).  [Code  Fed. 

tion  in  New  Jersey  upon  affidavit  allowing  that  the  district  and  circuit  judges 
and  circuit  justice  were  all  absent  from  the  district  and  circuit. 20  Since  the 
appointment  of  two  and  sometimes  four  circuit  judges  in  the  various  cir- 
cuits,! applications  to  a  circuit  justice  under  this  provision  have  naturally 
become  infrequent.  A  writ  granted  by  a  circuit  justice  in  vacation  does 
not  expire  at  the  commencement  of  the  term  but  only  upon  an  order  of 
dissolution.  2 

[c]  —  by  district  judges. 

This  provision  only  restricts  the  powers  of  district  judges  to  issue  the 
writ,  and  does  not  make  the  writ  when  issued  by  a  circuit  court  which  is 
held  by  the  district  judge,  any  the  less  the  writ  of  the  circuit  court. 5  If 
the  writ  is  issued  by  the  district  judge  in  vacations  it  will  continue  only 
until  the  next  term  of  the  circuit  court,  and  must  then  be  continued  in 
force  by  an  order  of  the  circuit  court,  which  order  may  be  made  by 
that  court,  though  held  by  the  district  judge.-  A  decision  by  the 
circuit  court  refusing  to  dissolve  an  order  so  made  will  be  treated 
on  appeal  as  the  equivalent  of  an  order  continuing  the  injunction. 8 
If  the  circuit  court  is  in  session  within  a  district,  being  held  by 
the  district  judge  sitting  alone,  the  court  as  so  constituted  has  full  power 
to  issue  the  writ;  and  application  to  the  circuit  judge  sitting  elsewhere  is 
unnecessary. 9  If  the  interlocutory  injunction  was  granted  by  the  district 
judge,  application  for  its  dissolution  should  also  be  before  him;io  as  the 
propriety  of  a  hearing  upon  the  modification  or  dissolution  of  an  injunc- 
tion before  the  judge  first  granting  it,  is  recognized.il 

§  1112.     Special  interlocutory  injunctions  only  grantable  on  no- 
tice and  hearing. 

Special  injunctions  shall  be  grantable  only  upon  due  notice  to 
the  other  party  by  the  court  in  term,  or  by  a  judge  thereof  in  vaca- 
tion, after  a  hearing,  which  may  be  ex  parte,  if  the  adverse  party 
does  not  appear  at  the  time  and  place  ordered.t^i-t'^l 
Part  of  55th  equity  rule,  promulgated  Mafch  1842. 

20United   States  v.   Louisville,  etc.  645,  13  C.  C.  A.  73.     See  Equity  Rule 

Co.   4    Dill.    601,    Fed.    Cas.    No.    15,-  55,  post,  §  1112,  1115,  1116. 

033  "CJoodyear,    etc.    Co.    v.    Folsnni.    ?> 

lAnte.    S    102.  Fed.  509;  Industrial  Co.  v.  Electrical 

2Gray    v.    Chicago,    etc.    R.    R.    1  Co.  58  Fed.  732,  7  C.  C.  A.  471. 

Woolw.    03.    Fed.    Cas.    No.    5.713.  sSee  Parker  v.  Judges,   12  Wheat. 

5Goodyear.    etc.    Co.    v.    Folsom,    3  501,  0  L.  ed.  729. 

Fed.  509;  Industrial  Co.  v.  Electrical  aGoodyear,    etc.   Co.    v.    Folsom,    3 

Co.  58  Fed.  732,  7  C.  C.  A.  471;  Unit-  Fed.  oOO' 

ed  States  v.  Weber,  114  Fed.  950.  lokle  v.   Crosby,    104  Fed.  582. 

el'nited  States  v.  Weber,  114  Fed.  nKlein    v.    Fleetford,   35   Fed.   98; 

9.50;    Gray    v.   Chicago,   etc.   R.   R.    1  Westerly   W.   Wks.   v.    Westerly,   77 

Wdolw.     03,     Fed.     Cas.     No.    5.713;  Fed.  783. 
Dreutzer  v.  Frankfort  L.  Co.  05  Fed. 

1030 


rroccriuie]  INJUNCTIONS.  §   1112    [b] 

[a]  In  general. 

This  rule  also  provides  for  injunction  against  proceedings  at  law.ic  and 
for  dissolution  of  injunctions  awarded  in  vacation. J  2  Special  injunctions 
are  those  obtainable  only  on  notice,  as  distinguished  from  common  injunc- 
tions grantable  without  notice.  It  has  been  said  that  all  injunctions  are 
special  in  the  United  States  courts ;i4  although  the  .35th  equity  rule  rec- 
ognizes the  distinction  betAveen  common  and  .special  injunctions.  The 
"due"  notice  required  by  this  rule  is  relative  and  is  to  be  interpreted  in 
each  case  by  its  circumstances  and  the  exercise  of  the  court's  discretion. is 
Reasonable  notice  is  essential. is  The  provision  of  R.  S.  §  718,i7  permitting 
a  preliminary  restraining  order,  does  not  repeal  the  provision  of  this  rule 
requiring  notice  for  the  granting  of  interlocutory  injunctions. is  Notice 
may  be  waived  by  appearance.19 

[b]  Issuance  and  effect  of  interlocutory  injunction. 

Interlocutory  injunction  is  intended  merely  to  preserve  the  status  quo 
pending  the  ultimate  decision  of  the  suit. 2  It  should  not  direct  the  restora- 
tion of  property  to  its  condition  prior  to  a  trespass  complained  of.s  Man- 
datory injunction  is  only  properly  granted  at  final  hearing.4  There  should 
be  a  showing  of  probable  right  and  probable  danger  that  the  right  would 
be  defeated  if  not  granted. s  If  the  court  is  doubtful  respecting  its  ulti- 
mate decision  and  serious  injury  might  result  to  complainant  it  is  proper 
to  grant  the  interlocutory  injunction.6  The  court  need  not  be  satisfied  that 
complaint  will  finally  prevail.''  If  it  is  manifest  that  on  final  hear- 
ing injunction  should  issue,  it  is  proper  to  grant  the  preliminary  de- 
cree.8  The  fact  that  irremediable  injury  may  result  from  its  refusal 
while  the  defendant  would  not  be  greatly  incommoded  by  its  issuance,  will 

i2Post,  §  1115.  i^ilndustrial    Co.   v.   Klectrical    Co. 

isPost,  §  1116.  58  Fed.   738,  7  C.  C.  A.  471. 

i.T>„  T>     1         T   TUT    s   -Kt    oQf\         i^Marsh  v.  Bennett.  5  McLean,  117, 

i4Perrv  v.  Parker,  1  W.  &  M.  280,  r^^.i    o,,    v-^    niir»  •       '» 

T?  J     /-I    '  -V'       n  r,in      T  1  f^d.   t  as.   So.   9,110. 

Fed.    Gas.  >.o.    11.010;    Lawrence    v.         or»„.,,.„..    „*.„  \.^  i  •  d     r> 

T>  1     TIT    MI      Ain     T-    1      r>  ^Denver,   etc.    v.    Atcliinsoii.    11.   R. 

Bowman,  1     McAlI.    41!).    Fed.    Las.  n^  tt    o    nc-r    no  t        i     >n.     .    ._. 

■VT       oioJ       rpv,  4.     f  -VT         .->    iTno  ^^^   ^1 .   S.   66  < ,  28  L.    0(1.   2!)  1 .  4   Sup. 

■J-\^.    7\l  f  ^?.  ■•     'T     '   <^t.  Rep.  185.  ' 

c.  -32,  §   5    1    Stat.  .J34,  required  no-         .^^Jth,,,,  p.  ^    ,,    ,    Oakland.  ."8 
tice   in    all    cases:     Perrv   v.   Parker,    p^ ,    -q 

supra;    Xew    York    v.    Conecticut,    4        ^McCaulev  v.  Kellogg,  2  Woo.ls,  13. 

Dall.   2,  1   L.   ed.    -lo:    but  that   pro-  p^^  ^^^    ^^    g  ^.gg 
vision   was  not   earned   forward   into        sOeorgia  v.  Brailsford.  2  Dall    -(O.",, 

the    revLsed    statutes,    and    is    there-  ,    ^^    ^^^  ^.^^,    Colorado    K.    K.   IJ.    v. 

forenotinforce;    \uenglingv   John-  ^,,^;  ^^^      j^        ^^j      ,,^.^, 

son,    1    Hughe-!,    60/.    610,    Fed.    (  a-^.  (p    n     \  ^ 

Xo.    18  195;,     I>Klus_tnal^  ^^'a  ^"^-i"        «'a1''SO"  v.  Corson,  88  Fed.  581,  32 
tr.cal  Co.  o8  led.  /../,  /   C.  C.  A.  4/1.    ^   ^    ^    ^.3.  ^^,,.^^^  ,.    j^^^.j,    -,,  ,,^,, 

i5Lawience   v.    Bowman.    1    McAll.  71.5.  .2.5  c.   C.    A.    161.     See   Star  Co. 

4M»,  Fed.  Cas.  No.  8,1.34,  v.  Colvcr  P,  H.      141   Fed.   12!>,  hold- 

isNew  York  v.  Oonnecticut,  4  Dall.  ing  a  clear  case  must  appear. 
2,    1    L.    ed.    715:    Mowrev    v.    India  '.*^anitarv    etc.    VVks.    v.    Cal.    Rv. 

napolis,  etc.  U.  Pv.  Co.  4  Biss.  78,  Fed.  \\-ks.    04    Fed.    603. 
Cas.  No.  H.S'.U.  sAllington    v.    Booth.   78    Fed.   878, 

IT  Post.    5    1113.  24  C.   C.  A.  378. 

1031 


§   1113  KQUITY   I'liOCEDIIRK — (Continued).  [Codo   Fed. 

incli?ie  the  court  to  grant  it.s  On  the  other  hand  if  plaintifl's  right  is 
doubtful  and  defendant  amply  able  to  pay  any  damages  these  considerations 
incline  the  court  against  issuing  the  preliminary  writ.io  If  the  bill  is  too 
indefinite  it  will  not  issue. n  It  was  formerly  the  rule  that  the  decision 
upon  an  interlocutory  injunction  was  discretionary  and  not  reviewable.! 2 
But  an  act  of  18!)1  made  such  decrees  appealable  prior  to  final  decree,  al- 
though upon  review  the  existence  of  considerable  discretion  will  be  recog- 
nized.is 

§  1113.     Injunction  bond. 

Tlie  reqiiireiiient  of  a  bond  as  condition  precedent  to  the  grant- 
ing of  an  injunction  is  discretionary  in  Federal  practice. 
Author's  section. 

It  is  in  the  discretion  of  the  judge  granting  an  interlocutory  injunction 
to  require  or  dispense  with  a  bond,  and  his  action  in  that  behalf  is  not 
reviewable  on  error.ie  There  can  be  no  question  of  the  court's  power  to 
require  a  bond  or  to  mitigate  the  terms  imposed,  at  any  time.i'  The  bond 
may  be  enforced  summarily  by  the  court  in  ancillary  proceedings; is  or 
upon  the  dissolution  of  the  injunction, is  or  it  may  be  sued  upon  in  a  Stale 
court. 2  0  If  the  bond  given  is  insufficient  the  court  on  motion  will  require 
additional  security. i  In  many  cases  the  propriety  of  requiring  a  bond  has 
been  recognized; 2  especially  where  complianant  is  a  nonresident  alien. 3 
The  fact  that  the  United  States  is  not  required  to  give  a  bond  has  been 
made  ground  for  refusing  preliminnry  injunction  in  a  doubtful  case.4 

§  1114.     Temporary  restraining  order  may  issue. 

Whenever  notice  is  given  of  a  motion  for  an  injunction  out  of 
a  circuit  or  district  court,  the  court  or  judge  thereof  may,  if  there 

9See  Indianapolis  G.  Co.  V.  Indian-  Rep.    .529:     McCaull    v.    Braham.    16 

apolis.  82  Fed.  24.5;    Charles  v.  Mar-  Fed.  42,  21  Blatchf.  27S:  Coosaw  ]\1. 

ion.  98  Fed.  166.  Co.   v.   Carolina   M.  Co.   7.5   Fed.   84)7. 

lOSee   Paine  v.   United   States   Co.  See   Tullock  v.   Neulvane,   184    U.   S. 

90  Fed.  543:  Home  Ins.  Co.  v.  Nobles,  510,  46  L.  ed.  665.  32  Sup.  Ct.   Rep. 

63  Fed.  642 :  Star  Co.  v.  Colver,  P.  H.  377- 

141    Fed.    129.  isLeslie  v.  Brown,  90  Fed.   174,  ^^•2 

iiLeo  V.  Union  Pacific  Ry.  17  Fed.  C.  C.  A.  .556:  Files  v.  Davis,  118  Fed. 

273.  468. 

i2See  Buflington  v.  Harvev,  95  U.  i»Wcst   v.  East.  etc.   Co.   113   Fed. 

S.  100.  24  L.  ed.  381  :    United  States  744.  51  C.  C.  A.  41f>. 

v.  Chicag-o.  7  How.  191.  12  L.  ed.  660.  2  0Meyers  v.   Block.   120  U.  S.  214, 

i3See  ante,   §  78  and  notes.  .30  L.  ed.  642.  7  Sup.  Ct.  Rep.  525. 

isRussell  V.  Farlev.  105  U.  S.  433,  iGoIdmark     v.     Kreling.     25     Fed. 

26  L.  ed.  1060:   Mevers  v.  Block,  120  .349. 

U.  S.   206.  30  L.  cd.   642.   7   Sup.  Ct.  2See  Staffords  v.  King.  90  Fed.  1:?6, 

Rep.    .525:    Briggs   v.    Neal.    120    Fed.  .32  C.  C.  A.  536. 

228,  56  C.  C.  A.  572.  sLowenfeld  v.  Curtis,  72  Fed.   105. 

iTRusscll   v.  Farlev.  105  U.  S.  441.  •iUnited    States    v.    .Jellico    Co.    43 

26  L.  ed.  1060:    IMevers  v.  Block.  120  Fed.    898. 
U.  S.  214,   30  L.   ed.  644,  7    Sup.  Ct. 

1032 


I'locedure]  INJUNCTION   IN   VACATION.  §   1115- 

appears  to  be  danger  of  irreparable  injury  from  delay,  grant  an  order 
restraining  the  act  sought  to  be  enjoined  until  the  decision  upon 
the  motion  ;  and  such  oi'der  may  be  granted  with  or  without  security,, 
in  the  discretion  of  the  court  or  judge. 
R.  S.  §  718,  U.  S.  Comp.  Stat.  1901,  p.  58fl. 

This  provision  gives  power  to  isbue  restraining  oicior  to  preserve  the 
ptalu  quo,!'  and  without  notice. 6  But  it  does  not  give  power  to  issue  man- 
datory injunction."  Restraining  order  should  not  issue  unless  there  is  a 
clear  case  of  threatened  injury  reasonal)ly  to  be  apprehended,  not  other- 
wise capable  of  being  averted  nor  compensated  in  damages. s  If  a  bill  does 
not  make  out  such  a  case  restraining  order  should  be  refused. 9  There 
should  be  moral  certainty  of  irreparable  injury.' o  it  may  issue  in  advance 
of  subpoena,  where  the  bill  is  filed  with  the  court  although  not  formally 
deposited  with  the  clerk  until  two  days  later. n  In  some  districts  it  is 
the  practice  upon  application  for  injunction  to  issue  an  order  that  defend- 
ant do  nothing  prejudicial  to  plaintiff's  rights  until  the  motion  for  in- 
junction be  heard. 12  Where  restraining  order  is  obtained  the  court  should 
not  let  the  j)laintiff  fix  the  hearing  on  the  motion  too  far  aliead,  but  rather 
anticipate  the  next  rule  day.i3 

§  1115.     Injunction  in  vacation  to  continue  only  to  next  term. 

In  every  case  M'here  an  injunction — either  the  common  injunc- 
tion or  a  special  injunction — is  awarded  in  vacation,  it  shall,  unless 
pi'eviously  dissolved  by  the  judge  granting  the  same,  continue  un- 
til the  next  term  of  the  court,  or  until  it  is  dissolved  by  some  other 
order  of  the  court. 

Part  of  55th  equity  rule,  promulgated  March,  1842. 

If  issued  during  vacation  by  a  district  judge  it  expires  with  the  new 
term  unless  the  circuit  court  order  it  to  continue, 1 6  and  the  concluding 
clause  supra  "or  until  it  is  dissolved  bj'  some  other  order  of  the  court"  does 
not  apply. 1^  But  if  ordered  by  a  circuit  justice  or,  it  would  seem,  by  a 
circuit  judge  it  continues  under  this  rule  until  "dissolved  by  some  other 
order  of  the  court."i8 

sSpring  Vallcv  \V.  W.  v.  Bartlett,  nl'niversal.  etc.  Co.  v.  Stoneburn- 

It;  Fed.  615,  8  s'awy.  565.  cr.  IKl  Fed.  251,  51  C.  C.  A.  208. 

ePavne  v.  Kansas  Rv.  46  Fed.  54fi.  ' -^<'<'   Fanshawe  v.  Tracy,  4  Biss. 

vChicago.  etc.  R.  R.' v.   Burlington  -^^'O^    Fed.     C'ius.     No.    4,643;     United 

R    R    34  Fed.  481.  States    v.    Anon.    21    Fed.    767:    Fre- 

,',     ^  ■   ,\n,     '      ,„     i    •     ,  >-,     -o    mont  v.  Merced  M.  Co.  1  ^IcAll.  268, 
Mn.h.stnal  Co.  V.  Klectncal  Co  o8    ^^^j    ^.^^^    ^.^, 

?       /?'    '  w  >,     A    T^    i-r^'V         i-Walworth     v.     Cook    Countv.    .> 
Trust  Co.  V.  Wabash  R.  R.  2,>  Fed.  1.    ^.^^     ,33     j,^^^     ^.^^     ^^     ,-,3^-. 

sWorth    M.    Co.    v.    Bingham,    116         i6.\nte,  §  1111. 
Fed.  785,  54  C.  C.  A.  119.  niirav    v.    Chicago,    etc.    R.    R.    1 

lORyan  V.  Seaboard  R.  R.  80  Fed.    \Voodw.'63,  Fed.  Cas.  No.  5,713. 
397.  inbid. 

10.33 


§   1116  EQIITV   PROCEDURE— (Continued).  [Code  Fed. 

§  1116.     Injunction  to  stay  proceedings  at  law  how  obtained. 

Whenever  an  injnnction  is  asked  for  by  the  bill  to  stay  proceed- 
ings at  law,  if  the  defendant  do  not  enter  liis  apjiearance  and  plead, 
demur,  or  answer  to  the  same  within  the  time  prescribed  therefor 
by  these  rules,  the  plaintiff  shall  be  entitled  as  of  course,  upon  mo- 
tion, without  notice,  to  such  injunction. 

Part  of  55tli  equity  rule,  promulgated  March  1842. 

Injunction  to  stay  proceedings  at  law  will  be  granted  only  at  the  in- 
stance of  a  party  thereto  or  one  interested  therein.i  Where  granted  with- 
out answer  it  will  not  be  dissolved  until  answer  filed; 2  and  motion  to  dis- 
soIyc  will  be  considered  only  on  questions  raised  in  the  answer. -^ 

§  1117.  Enforcement  and  violation  of  injunction — attachment. 
The  7th  and  8th  equity  rules"  make  attachment  of  the  person  of 
defendant  the  proper  process  for  enforcing  obedience  to  orders 
and  decrees  and  punishing  their  violation.  These  rules  ap- 
ply fully  to  injunctive  orders  and  decrees.  In  case  of  vio- 
lation of  such  an  order  or  decree,  it  is  proper  to  bring  the  same  to 
the  court's  attention  by  affidavit  or  affidavits  setting  forth  the  act 
or  neglect  relied  upon,  with  the  particularity  and  circumstance 
required  by  good  pleading,  accompanied  by  motion  for  attachment  or 
order  to  show  cause.  Thereupon  the  court  should  issue  order  to 
show  cause  at  a  designated  time  and  place,  why  attachment  should 
not  issue;  or  it  may  issue  attacliment  in  the  first  instance.  If  the 
contempt  be  proven  fine  or  imprisonment  may  be  resorted  to  by 
way  of  punishment,^  or  impiisonment  may  be  ordered  to  compel 
obedience  to  the  order  or  decree .'^ 
Author's  section. 

Disobedience  of,  or  resistance  to  injunctive  orders  and  decrees  consti- 
tutes contempt. 10  The  proceedings  in  cases  of  contempt  are  discussed  gen- 
erally in  another  chapter.n  Power  to  issue  attachment  in  the  first 
instance,  upon  evidence  of  violation  of  an  injunctive  order,  undoubtedly 
exists,  although  order  to  show  cause  will  usually  first  issue.i2  If  the  order 
has  not  been  served  this  may  be  ground  for  refusing  to  issue  the  attach- 

iNew  York  v.  Connecticut,  4  Dall.  sAnte.  §§  1095.  1096. 

5,  I  L.  ed.  715.  lOAnte.  §  807   [e]    [f]. 

2Read  v.  Consequa,  4  Wash.  C.  C.  nAnto.  S  807   [lil. 

174,   Fed.  Cas.  No.   IhGOO.  i2See   Fansliawe   v.   Tracy,  4  Biss. 

3 Farmer  v.  Calvert  L.  Co.  1  Flipp.  490.     Fed.    Cas.     Xo.     4,643^     United 

228,  Fed.  Cas.  Xo.  4,651.  States  v. Anon,  21   Fed.  767,  768;   Ku- 

TAnte,   §8    109.5,  1096.  rcka    Co.    v.    Superior   Ct.    116    V.   S. 

8 Ante,  §  807,  as  to  punishment  for  410,  29   L.   ed.   671,   6  Sup.    Ct.   R-|.. 

contempt.  429;  Comlv  v.  Buchanan,  18  Fed.  58. 

1034 


Procedure]  IN.TUXCTIOX.  §   1119 

ment.13  The  affidavit  need  not  be  by  a  party,  at  least  where  alleging  acts 
of  violence.!*  It  is  no  objection  that  the  motion  for  attachment  fails  to 
name  the  parties  to  be  attached  if  otherwise  obtainable  from  the  record. 15 
Sometimes  information  is  used  to  call  attention  to  the  violation  of  a  court's 
injunctive  order.i*'  Xominal  line  and  costs  are  deemed  sufficient  punish- 
ment if  tlie  disobedience  was  unintentional. i"  The  tine  may  be  ordered  paid 
to  complainant  as  compensation  in  certain  cases.is  Costs  should  be  paid  by 
complainant  if  unsuccessful  in  showing  the  contempt. 1 9 

§  1118.  Interlocutory  State  injunction  against  national  banks 
forbidden. 
Xo  .  .  .  injunction  .  .  .  shall  be  issued  against  such 
a.ssociation  [a  national  bank]  or  its  property  before  final  judgment 
in  anv  suit,  action  or  proceeding,  in  any  State,  county  or  municipal 
court. 

Part  of  R.  S.  §  5242.  U.  S.  Comp.  Stat.  1901.  p.  3517. 

This  provision  was  originally  part  of  §  52  of  the  national  bank  law  of 
lS(i4  and  also  forbids  attachment  and  execution. 2  Later  provisions  respect- 
ing jurisdiction  of  suits  by  or  against  national  banks  did  not  repeal  it.'-  It 
(Iocs  Tiot  forbid  interlocutory  injunction  in  the  Federal  court  though  the 
cause  was  commenced  in  a  state  tribunal  and  removed.*  Since  the  Federal 
jurisdiction  of  suits  respecting  national  banks  has  been  curtailed, »  without 
impairing  the  force  of  this  prohibition, 6  only  citizens  of  some  other  State 
■can  now  get  preliminary  injunction  against  a  national  bank,  as  they  alone 
arc  aMc  to  proceed  in  tin-  Federal  court."  unless  a  Federal  question  is  in- 
Tolvcd. 

§  1119.  Injunction  by  national  bank  to  stay  receivership  pro- 
ceedings. 
Whenever  an  association  again.st  which  proceedings  have  been 
iiisiit  iiti'd.  on  account  of  any  alleged  refusal  to  redeem  its  circulating 
7!(>tes  as  aforesaid,  denies  having  failed  to  do  so.  it  may.  at  any  time 
\\  irhiii  ton  days  after  it  has  been  notified  of  tlie  appointment  of  an 

i^Bi.tc  R.  Co.   v.   Cillette.  24  Fed.  1 9 Hennessey  v.  Budde,  82  Fed.  541. 

•one.  2 Ante.   §  24. 

nCastner    v.     Pocahontas    C.    Co.  SFreeman  M.  Co.  v.  Nat.  Bank.  160 

117  Fed.  1S4.  Mass.  .-^98.  .S5  X.  E.   865:    Raynor  v. 

ir.Amer.  V.  Co.  v.  .Jacksonville  Rv.  P«f-  ^'«t.  Bank.  93  X.   V.  371:   Van 

5-^   Fed    937                                            '  '^^^^  '"'■  Peoples  Nat.  Bank.  173  N.  Y. 

",  ...   ■   ',,    -x  J    oi   *              r.  u       ri  ^14.   105   Am.  St.  Rep.  6GG.  66  N.  E. 

itiSee    United   States    v.    Debs,    04  .,.                                   ^ 

^'"'''^-  ^'^^-  4Hower   v.   Weiss    M.   &    K.   Co.   55 

I'.Morss  v.  Dom.  S.  M.  Co.  38  Fed.  pp^j    33(5   5  p   q     \    120. 

482:     Comly    v.    Buchanan,    81    Fed.         5 Ante.  §  24. 

58.  6 Freeman    ^I.    Co.    v.    Nat.    Bank, 

i;<Carv    M.    Co.    v.    Acme    Co.    108  160  Mass.  398.  35  N.  E.  865. 

Fed.  873,  48  C.   C.   A.  118.  :il)id. 

10:55 


{   1120  i:yriTV    I'KOCEDUKE— (Continued).  [Codo    Fed. 

ageiil,  as  provided  in  section  lil'ty-lwo  liundred  and  twenly-sevon;. 
apply  to  the  nearest  circuit,  or  district,  or  territorial  court  of  tiie 
United  States  to  enjoin  further  proceedings  in  the  premises:  ami 
such  court,  after  citing  the  compti'oller  of  the  currency  to  sliow 
cause  why  further  proceedings  should  not  be  enjoined,  and  after  the 
decision  of  the  court  or  finding  of  a  jury  that  such  association  has 
not  refused  to  redeem  its  circulating  notes,  when  legally  presented,. 
in  the  lawful  money  of  the  United  States,  shall  make  an  order  en- 
joining the  Comptroller,  and  any  receiver  acting  under  his  diicc- 
tion,  from  all  further  proceedings  on  account  of  such  alleged  refusal. 
R.  S.  §  5237,  U.  S.  Comp.  Stat.  1901,  p.  3508. 
This  provision   was  originally  enacted  in  1864.10 

§  1120.     Injunction  against  tax  assessment  or  collection  forbid- 
den. 

]Vo  suit  for  the  purpose  of  restraining  the  assessment  or  eollcc- 
tion  of  any  tax  shall  be  maintained  in  any  court. 
R.  S.  §  3224.  U.  S.  Comp.  Stat.  IftOI,  p.  2088. 

This  provision  was  orioinally  enacted  ill  1807,13  and  is  valid. i*  Tt  applies, 
as  well  to  assessment  as  to  collection  of  a  tax,  and  to  an  indirect  hickIo  ut' 
restraining  the  collectors  or  assessors  acts.i5  Congress  intended  that  the 
rejnedy  which  it  provided  by  proceedings  for  recovery  of  a  tax  after  pay- 
ment should  be  exclusive.is  Payment  must  be  made  and  redress  must  Itfr 
sought  subsequently. 1"  The  provision  applies  to  Federal  taxes,  but  has 
never  been  held  to  forbid  the  Federal  courts  restraining  the  collection  of 
State  taxes  on  proper  grounds.is  While  the  Supreme  Court  has  never 
recognized  the  prohibition  as  being  other  than  comprehensive  in  character.'^ 
the  view  has  sometimes  been  expressed  that  injunction  might  issue  where' 
the  act  of  the  assessor  or  collector  was  entirely  outside  the  powers  con- 

loAct    .Tune    3.    18G4,    c.    106    §    50.  isSee    State   R.    R.   Tax   Cases.   92- 

13  Stat.  114.  U.  S.  613.  615.  23  L.  ed.  674;  Shellon 
i3Aet   Mar.   2,    1867,  c.   169   §    10,  v.  Piatt.  139  U.  S.  597,  35  L.  ed.  277, 

14  Stat.  475.  11  Sup.  Ct.  Rep.  648;  Baltimore,  etc. 
iiFullan  V.  Kinsinger.  2  Abb.  U.  S.  R.  R.  v.  Allen,  17  Fed.  171;  Schulen- 

94.  P"ed.   Cas.  No.  11,463.     See  Dc-ra-  berg,  etc.   Co.   v.   Hayward,   20  Fed. 

ware  R.  R.  v.  Pretty  man.  17  Int.  R.  422. 

99,   Fed.  Gas.  No.  3.767.  i»See   State   R.   R.   Tax   Ca.se.s,    92 

isMiles    V.    Johnson.    .59    Fed.    38:  U.   S.   615.  23  L.   ed.  674;    Snyder  v, 

Delaware  R.  R.  v.  Prettvman.  17  Int.  Marks,   109  U.  S.   189.  27  L.  ed.  901. 

R.  99.  Fed.  Cas.  No.  3.767.  3  Sup.   Ct.  Rep.   157:    Pittsburg,  etc. 

ifiSnvder  v.  Marks,  109  U.  S.  193,  R.    R.    v.    Rd.    of    Public    Wks.    172 

27    L.   ed.  901.   3   Sup.   Ct.   Rep.   157;  U.   S.   32.  43   L.   ed.   .3.54.   19   Sup.  Ct. 

Delaware  R.  R.  v.  Prettvman,  17  Int.  Rep.  90:  Pullan  v.  Kinsinger.  2  Al>h. 

R.  99.   Fed.  Cas.  No.  3,767.  U.  S.  94.  Fed.  Cas.  No.  11.463;  How- 

in'niteil      StiUes      v.      Black.      11  land  v.  Soule,  1  Deady,  413,  Fed.  Cas. 

Blatchf.  543,   Fed.  Cas.  No.  14,600.  No.   0.800. 

1 0.36 


Fioceduie]  INJUXCTIOX   BY   DISTRICT  JUDGE.  §   1121 

f fired  upon  him. 20  As  the  provision  is  contained  in  the  title  of  the  Revised 
Statutes  respecting  internal  revenue,  it  may  be  that  it  is  not  applicable  to 
otlier  forms  of  taxation.  1  The  income  tax  law  of  1804  was  tested  by 
means  of  a  stockholder's  suit  against  a  trust  company,  enjoining  it  from 
paying  the  tax  as  invalid.2 

§  1121.     Injunction   by   district   judge   to   stay   proceedings    on 
distress  warrant. 

Anv  person  who  considers  himself  aggrieved  by  any  warrant  of 
distress  issued  under  the  foregoing  provisions  [against  an  officer 
failing  to  account  for  pu])lic  moneys]  may  prefer  a  bill  of  com- 
plaint to  any  district  judge  of  the  United  States,  setting  forth 
therein  the  nature  and  extent  of  the  injury  of  which  he  comphiins: 
and  thereupon  the  judge  may  grant  an  injunction  to  stay  proc'cd- 
ings  on  sucli  warrant  altogether,  or  for  so  much  tliereof  a.s  the  nature 
of  the  case  requires.  But  no  injunction  shall  issue  till  the  ])arty 
applying  for  it  gives  bond,  with  sufficient  security,  in  a  sum  to  be 
pi-eseribed  by  the  judge,  for  the  performance  of  such  judgment  as 
nuiy  be  awarded  against  him;  nor  sliall  the  issuing  of  such  injiui'-- 
tion  in  any  manner  impair  the  lien  produced  by  the  issuing  of  the 
warrant.  And  the  same  proceedings  shall  be  had  on  such  injunction 
as  in  other  cases,  except  that  no  answer  shall  be  nec(>ssary  on  tlu' 
part  of  the  United  States ;  and  if,  upon  dissolving  the  injunction,  it 
appears  to  the  satisfaction  of  the  judge  that  the  application  for  the 
injunction  was  merely  for  delay,  the  judge  may  add  to  the  lawful 
interest  assessed  on  all  sums  found  due  against  the  complainant  such 
damages  as,  with  such  lawful  interest,  shall  not  exceed  the  rate  of 
ten  per  centum  a  year.  Such  injunction  may  be  granted  or  dis- 
solved by  the  district  judge  either  in  or  out  of  court. 
R.  S.  §  3636,  U.  S.  Comp.  Stat.  1901,  p.  2421. 

'Phis  provision  is  found  in  tlie  title  of  the  Revised  Statutes  dealing  with 
"The  Public  Moneys"  and  was  (irii,nnally  enacted  in  1820.^ 

20Kissiuger    v.    Bean,    7    Biss.    60.  Piatt,    1.39    V.   S.   507,  .35  L.  ed.   277, 

Fed.  C'as.  No.  7.8.50:    Fravser  v.  Rus-  11   Sup.  Ct.  Rep.  648. 
sell     3    Hughes.    227.    Fed.    Cas.    Xo.        2Pollock    v.    Farmers   L.   &   T.    Co. 

.5.067.  157  U.  S.  429,  39  L.  ed.  759,  15  Sup. 

^See    Pacific   S.    W.   Co.    v.    United  Rep.  673. 
States.  187  I'.  S.  452.  47    f-  ed.  255.         5Act  .May  15.   1820,  c.   107   §§  4,  5, 

23    Sup.    Ct.    Rep.    157;     Shelton    v.  :!  Stat.  595. 

1037 


S  1122  EQUITY    TROCEDLRK — (Continued).  [Code   Ted. 

§  1122.  — revisory  proceedings  before  circuit  justice  or  judge. 

AVhen  the  district  judge  refuses  to  grant  an  injunction  to  ,-5tay 
proceedings  on  a  distress-warrant,  as  aforesaid,  or  dissolves  such 
injunction  after  it  is  granted,  any  person  who  considers  himself  ag- 
grieved by  the  decision  in  tlie  premises  may  hiy  before  the  circuit 
justice,  or  circuit  judge  of  tlie  circuit  within  which  such  district  lies, 
a  copy  of  the  proceeding  had  before  the  district  judge;  and  there- 
upon tlie  circuit  justice  or  circuit  judge  may  grant  an  injunction,  or 
permit  an  appeal,  as  the  case  may  be,  if,  in  his  opinion,  the  equity 
of  the  case  requires  it.  The  same  proceedings,  subject  to  tlie  same 
conditions,  shall  be  had  upon  such  injunction  in  the  circuit  court 
as  are  prescribed  in  the  distiict  court. 

R.  S.  §  3637,  U.  S.  Comp.  Stat.  1901,  p.  2421. 

This  provision  is  taken  from  acts  of  1820  and  ISGO.fi  By  act  of  1891  all 
the  appellate  powers  of  the  circuit  court  were  taken  away  and  vested  in 
the  circuit  court  of  appeals  and  in  the  Supreme  Court.'? 

§  1123.     Persons  ineligible  to  act  as  receiver. 

It  sliall  not  be  lawful  to  appoint  any  of  the  officers  named  in  this 
section  [i.  e.  a  marshal,  deputy  marshal,  attorney  or  assistant  at- 
torney of  any  district,  jury  commissioner,  clerk  of  marshal,  baililf, 
crier,  juror,  janitor  of  any  public  building,  civil  or  military  em- 
ployee of  the  government,  clerk  or  employee  of  any  United  States 
justice  or  judge]  receiver  or  receivers  in  any  case  or  cases  now  pend- 
ing or  that  may  be  hereafter  brought  in  the  courts  of  the  United 
States. 

Part  of  §  20,  act  May  28,  1896,  e.  252,  29  Stat.  184,  U.  S.  Comp.  Stat. 
1901,  p.  501. 

The  section  also  forbids  such  officers  acting  as  United  States  comoiis- 
sioners.9  Another  section  forbids  the  appointment  of  court  clerks  or  their 
deputies  as  receivers  except  under  special  circumstances. lo 

§  1124.     Receiver  suable  without  leave  of  appointing  court,  but 
subject  to  its  control. 

Every  receiver  or  manager  of  any  property  appointed  by  any 

6Act  May  15.  1820.  e.  107.  §§  4.  6,        ^See  ante,  §  77. 
3  Stat.  595:  Act  Apr.  10.  1809,  c.  22,         flSee  ante.   §  673. 
§   2^   16   Stat.  44.  loAnte,  §  603. 

1038 


riocedure]  RECEIVERS.  §   1124    [a] 

court  of  the  United  States  may  be  sued  in  respect  of  any  act  or 
transaction  of  his  in  carrying  on  tlie  business  connected  witli  such 
property/^^"^''^  without  the  previous  leave  of  the  court  in  which 
such  receiver  or  manager  was  appointed;  but  such  suit  shall  be 
subject  to  the  general  equity  jurisdiction  of  the  court  in  which  such 
receiver  or  manager  was  appointed,  so  far  as  the  same  shall  be  nec- 
?  essary  to  the  ends  of  jusiiceJ''^ 

'i  §  3  of  act  Mar.  3,  1887,  c.  373,  24  Stat.  554,  as  corrected  Aug.  13,  1888, 

e.  866,  §  2,  25  Stat.  436,  U.  S.  Comp.  Stat.  1901,  p.  582. 

[aj     In  general. 

Prior  to  this  provision  the  Federal  Supreme  Court  recognized  and  enforced 
the  general  rule  that  a  receiver  cannot  be  sued  touching  the  property  in 
charge  without  consent  of  the  appointing  court;  i*  and  that  suit  without 
such  leave  con.stitued  contempt.is  In  one  of  the  circuits,  however,  the 
practice  of  providing  in  the  appointing  order  that  the  receiver  might  be 
sued  without  consent  was  followed;! 6  and  perhaps  led  to  the  enactment 
of  the  above  section.  It  is  now  settled  in  conformity  therewith,  that  a 
receiver  may  be  sued  in  another  court,  State  or  Federal,  touching  his  re- 
ceivership acts,  without  leave.i^  So,  if  a  receiver  sues  in  a  State  court, 
defendant  may  plead  a  .set-ofl'  there  without  leave  of  the  appointing  court. is 
The  provision  has  been  construed  as  placing  a  receiver  in  the  same  position 
as  respects  suit,  as  the  concern  or  owner  he  represents: is  as  intended  to 
protect  the  right  of  jury  trial  in  actions  of  a  legal  character; 20  and,  again, 
as  merely  dispensing  with  the  need  for  permission  to  sue,  and  leaving  the 
judgment  obtained  merely  advisory  and  subject  to  red\iction  as  in  case  of 
trial  of  issues  of  fact  out  of  chancery.i     It  takes  away  all  discretion  in  the 

i4Davis  V.  Gray.  16  Wall.  218.  21  ner,  172  U.  S.  2.38.  43  L.  ed.  4.30.   19 

L.  ed.  447:  Barton  v.  Barbour.  104  U.  Sup.  Ct.  Kep.  163:    Central  T.  Co.  v. 

S.    128.  26   L.  ed.   673.     See   iVale  v.  Kast.  etc.   Rv.  59  Fed.  523;     Central 

Phipps.   14   How.   374,   14  L.   ed.  459,  T.  Co.  v.  St.  Louis  R.  R.  40  Fed.  426; 

holding   that   receiver   not    suable   in  Jones   v.    The    St.   Nicholas,   49   Fed. 

Federal  court.  671. 

isplxpress   Co.  v.  R.  R.   Co.  99  U.         isCrant  v.  Buckner.  172  V.  S.  238, 

S.    198.   25   L.   ed.   319.  43  L.  ed.  430.  19  Sup.  Ct.  Rep.  163. 

lesec    Dow   v.    Memphis   R.   R.   20         isEddy  v.  Lafavette,  49  Fed.  807, 

Fed.  260,  per  Caldwell.  J.;  Barton  v.  1    C.  C.  A.  441. 

Barbour.  104  U.  S.  126.  26  L.  ed.  673,         20McNulta    v.    Lockridge.    137    111. 

per    Miller.   J.,   dissenting.  270,  31    Am.   St.  Rep.   362.   27   N.   E. 

ivMcXulta  V.  Lochridge.  141   V.  S.  452;    AfTirmed    141    V.   S.    330,  .35   L. 

330.  35  L.  ed.  796.  12  Sup.  Ct.  Rep.  od.  790.  12  Sup.  Ct.  Rep.  11. 
11  ;     Texas  &  P.  R.  R.  v.  Cox.  145  V.         iMissouri  P.  Rv.  v.  Texas  &  P.  Rv. 

S.  601.  602,  .3'6  L.  ed.  829,  12  Sup.  Ct.  41    Fed.   311.   contra:    Central   T.  Co. 

R<p.  905;    Texas  &    P.  Ry.  v.  John-  v.    East.   T.   Rv.   .'»9   Fed.   523;    Texas 

son,   151    U.   S.   101,  38   L.  ed.   81,   14  &    P   Hv.   v.    .Tohiison,   151    U.   S.   81. 

Sup.   Ct.  Rep.  250;    Grant  v.   Buck-  38   L.   ed.   89,   14   Sup.   C\.   Rep.  250. 

1039 


§   ll-'4   LbJ  KQUITV  PROCKDURE— (Continued).  [Code  Fed. 

appointing  court  to  refuse  leave.'-    It  applies  to  a  temporary  court  receiver- 
ship of  a  Federal  corpunition.3 

[bj     Section  applies  only  to  receiver's  acts  in  carrying  on  the  business. 

As  this  provision  is  in  the  nature  of  an  e.xception  to  the  general  rule, 
other  suits  than  those  specified  are  objectionable  if  instituted  in  other 
courts.  Upon  principles  of  comity  elsewhere  considered,  suits  to  recover 
any  of  the  property  which  is  in  custodia  logis  through  the  receivership 
cannot  be  brought  elsewhere  than  in  the  receivership  tribunal. 6  and  this 
provision  does  not  alter  that  principle.'?  Unlawful  detainer  will  not  lie  in 
another  court  against  a  receiver  without  leave  of  the  appointing  covirt.s 
Nor  a  suit  to  establish  an  interest  adverse  to  the  receivers,!)  or  get  control 
of  the  assets;  10  or  to  foreclose  another  mortgage. n  (larnishment  proceed- 
ings against  a  receiver  have  been  held  not  a  suit  for  "any  act  or  trans- 
action" of  the  receiver,  so  that  leave  to  sue  must  be  obtained.12  A  re- 
ceiver cannot  be  sued  without  leave  for  a  tort  antedating  the  receivership 
since  that  is  not  an  act  of  his  in  carrying  on  the  business,! 3  though  one  re- 
-ceiver  may  be  sued  without  leave  under  this  statute,  for  an  act  of  a  prior 
receiver  under  the  same  receivership. i*  A  stockholder  suing  to  enforce  a 
right  of  a  corporation  in  a  receiver's  hands  which  makes  the  receiver  de- 
7endant,  should  obtain  leave  to  sue  notwithstanding  this  section. 15 

[c]     Suit  subject  to  equity  control  of  appointing  court. 

Suit  against  a  receiver  in  another  court  is  subject  to  the  equity  juris- 
•diction  of  the  appointing  court. is  The  courts  have  considered  the  meaning 
of  this  proviso  in  many  cases.  It  is  not  to  be  so  construed  as  to  render 
valueless  the  right  created  by  the  other  portions  of  the  section. is  The 
equity  jurisdiction  of  the  appointing  court  is  a  jurisdiction  over  the  prop- 
erty, and  the  ends  of  justice  obviously  require  the  due  administration  of 
that  property  between  conflicting  claimants.  Hence  the  appointing  court 
must  have  power  to  accord  to  a  judgment  obtained  elsewhere  its  proper 

2Central  T.  Co.  v.  St.  Ix)uis  R.  R.  I'^Central    T.    Co.    v.    Chattanooga 

40    Fed.   420.  Rv.  68  Fed.   685,  contra;      Irwin     v. 

sWheeler  v.  Smith,  81   Fed.  319.  McKechnie,  58  Minn.    145,  59  N.  W. 

6Antc,  §  17.  987. 

TSee    Ex    parte    Tvler,    149    U.    S.  1 3  Farmers  L.  &  T.  Co.  v.  Chicago, 

164,  37   L.   ed.  689,   fs  Sup.  Ct.  Rep.  etc.    R.    R.    118    Fed.    204;     Jones    v. 

785.     Leave  should  be  obtained :  Min-  Schlapback,  81   Fed.  274. 

ot  V.  Mastin.  95  Fed.  7.34.  37  C.  C.  A.  i4McNulta  v.  Lochridge,  141   U.  S. 

234.  327.  35  L.  ed.   7!»ti.   12  Sup.  Ct.  Rep. 

sComer    v.     Felton.    61     Fed.     731,  11. 

holding  judgment   null   and   void.  I'.Swope  v.  Villard.  61  Fed.  417. 

9 J.  1.   Case  Plow  Works  v.   Finks,  isTennes.see   v.    Union,    etc.    Bank. 

81  Fed.  529.  26  C.  C.  A.  46.  152  U.  S.  462    463.  38  L.  ed.  511.   14 

loStateler   v.  Bank.   77    Fed.   43.  Sup.   Ct.   Rep.  654. 

iiAmer.    L.    &    T.    Co.    v.    Central  isTexas    &    B.    R.    R.    v.    Johnson, 

Y.  R.  R.  84  Fed.  917;    Central  T.  Co.  151   U.  S.   103,  38  L.  ed.  89,   14  Sup. 

V.  East  Rv.  59  Fed.  523.  Ct.  Rep.  250. 

1040 


Procedure]  RECEIVERS.  §    1125 

equitable  rank  among  the  claims  before  it. 20  The  payment  of  judgments 
and  enforcement  of  decrees  obtained  elsewhere  must  be  within  the  control 
of  the  appointing  court  so  far  as  affecting  the  property  in  custody  and  its 
due  administration.  But  it  is  not  perceived  that  this  equity  jurisdiction  to 
effect  the  ends  of  justice  would  ever  give  appellate  or  supervisory  power  to 
the  appointing  court  over  the  proceedings  leading  up  to  a  judgment  else- 
where obtamed.i  It  does  not  "make  it  competent  for  the  appointing  court 
to  determine  the  rights  of  persons  who  are  not  before  it  or  subject  to  its 
jurisdiction"2  further  at  least  than  by  providing  for  the  payment  or  en- 
forcement of  the  judgment  or  decree  elsewhere  obtained,  in  its  e<[uitable 
administration  of  the  property.  It  does  not  enable  the  appointing  court 
to  treat  such  a  judgment  as  other  than  conclusive  in  the  premises.* 

§  1125.     Federal  receiver  must  manage  property  as  required  by 
valid  State  laws. 
Whenever  in  any  cause  pending  in  any  court  of  the  United  States 
there  shall  be  a  receiver  or  manager  in  possession  of  any  property, 
such  receiver  or  manager  shall  manage  and  operate  such  property 
according  to  the  requirements  of  the  valid  laws  of  the   State  in 
which  such  property  shall  be  situated,  in  tlio  same  manner  that 
the  owner  or  possessor  thereof  would  be  bound  to  do  if  in  possession 
thereof.     Any  receiver  or  manager  who  shall  wilfully  violate  the 
provisions  of  this  section  shall  be  deemed  guilty  of  a  misdemeanor, 
and  shall,  on  conviction  thereof,  be  punished  by  a  fine  not  exceed- 
ing three  thousand  dollars,  or  by  imprisonment  not  exceeding  one 
year,  or  by  both  said  punishments,  in  the  discretion  of  the  court. 
§  2  of  act  Mar.  3,  1887,  c.  373,  §  2,  24  Stat.  554,  as  corrected  act  Aug. 
13,  1888,  c.  8G6,  §  2,  25  Stat.  43G,  U.  S.  Comp.  Stat.  1901,  p.  582. 

§  1126.     Railroad  receivers  not  to  reduce  wages  except  on  no- 
tice to  employees  and  a  hearing. 
No  reduction  of  wages  shall  be  made  by  such  receivers    fi.  e.. 
railroad    receivers    appointed    by    Federal    courts]     without    the 
authority  of  the  court  therefor  upon  notice  to  such  employees   [i. 

20Dillingham  v.  Hawk.  00  Fed.  494,        sPentral  T.   Co.  v.  East.  T.   R.  R. 

9  C.  C.  A.  101.  23  L.R.A.  517.  59  Fed.  523;  Texas  &  P.  Ry.  v.  John- 

lA  circuit  court  has  no  appellate  son,   151   U.  S.   103,  38  L.  ed.   89.  14 

power  over  state  coiirts  or  other  cir-  Sup.  Ct.  Rep.  2.50:   St.  Louis  Ry.  v. 

cuit    courts,   ante.    §    19.  Holbrook,   73   Fed.    112,    19   C.    C.   A. 

2Texas   &   P.   Rv.   v.   Johnson.   151  385.  contra:     Mo.   Pac.   Ry.  v,  Texas 

U.  S.   103,  38  L.  ed.  89,  14  Sup.  Ct.  &  P.  R.  R.  41  Fed.  311. 
Rep.   250. 

Fed.  Proc— 6G.  1041 


$  1126 


EQUITY   PnOCEDT'RB—r Continued) 


[Code  Fed. 


e.  employees  of  railroads  in  receivers  hands],  said  notice  to  be  not 
less  than  twenty  days  before  the  hearing  upon  the  receivers'  peti- 
tion or  application,  and  to  be  posted  upon  all  customary  bulletin 
boards  along  or  upon  the  railway  operated  by  such  receiver  or  re- 
ceivers. 

Part  of  §  9,  act  June  1,  18U8,  e.  370,  30  Stat.  427,  U.  S.  Comp.  Stat. 
1901,  p.  3210. 


1042 


« 


LAW  LIBRARY 

UNIVERSITY  OF  CALIFORNU 

LOS  ANGELES 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  838  241     8 


